Tennessee Coach Co.

In the Matter of TENNESSEE COACH COMPANY and AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAY & MOTOR COACH EM- PLOYEES OF AMERICA, A. F. L., LOCAL DIVISION 1423 Case No. 10-CA-142.-Decided June 2.9, 1949 DECISION AND ORDER On September 17, 1948, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain ,unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner fur- ther found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations . Thereafter, all parties filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner but with the modifications , additions, and exceptions noted below. 1. We disagree with the Trial Examiner's conclusion that Homer Fritts' discharge was not discriminatory within the meaning of Sec- tion 8 ( a) (3) of the Act . The Respondent admits, as alleged in the complaint, that it discharged Fritts because of his activities on be- half of the Union; but it argues that his union activity was illegal and therefore not protected by the Act. Particularly, the Respond- ent points to statements made by Fritts, while attempting to persuade fellow employees Horner and Kitts to join the Union, ( 1) that if they did not join promptly, the Union "will make it so hard on you you will have to join or quit work . . . when they do organize it," and (2) that when the Union completed its organization of the employees, 84 N. L. R. B., No. 85. 703 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonmembers would be given 12 to 60 days to join. The Trial Exam- iner found that the foregoing statements were "unlawful concerted activity within the meaning of Section 8 (b) (1)," and that therefore the Respondent was justified in discharging Fritts. We make no finding that Fritts committed an unfair labor practice. Apart from the absence of any 8 (b) (1) allegation in the complaint, the record does not support a finding that Fritts was an agent of the Union. Union Organizer Terry did not indicate, as the Trial Exam- iner erroneously reported, that Fritts was asked to solicit other em- ployees for the Union. Terry testified only that it was his own cus- tom to ask employees whom he had solicited to solicit others, but Terry did not solicit Fritts. So far as appears, therefore, whatever efforts Fritts made to assist the Union were as an individual and not, as a union agent. Nor do we believe that Fritts' remarks were of such a nature as to remove him from the area of the Act's protection. He, in substance, told two fellow employees, as set forth above, that they should join the Union at once because they would have to join later anyhow. Clearly, he referred to attainment by the Union of a union-shop con- tract, an entirely legitimate objective, for he specifically added that nonmembers would later have a 12- to 60-day grace period in which to join. Such solicitation by an ordinary employee, not a union rep- resentative, cannot reasonably be construed as having a coercive effect upon fellow employees. Fritts' prediction, based on assumption of union victory in later representation and union-security elections and in union-shop negotiations with the Respondent, merely reflects the usual enthusiasm of rank and file employees in organizational cam- paigns, and does not taint such statements as were made here with restraint or coercion. We all believe that the circumstances disclosed by the record in this case are distinguishable from those in the Smith Cabinet 2 and the Seamprufe 3 cases. The latter cases involved threats of loss of employment by official union representatives. Such threats by union agents are far more likely to restrain rank and file em- ployees in the free exercise of their right to join or refrain from joining a labor organization than mere predictions of a fellow-work- man. Moreover, the threats were there made without clear assur- ance of future opportunity to join the union in order to avoid dis- charge. We conclude, therefore, that Fritts' appeals for membership ' The Trial Examiner also found that Fritts told two employees that if they delayed joining until the Union's organization drive was completed , they would have to pay a much higher initiation fee. As the record does not contain sufficient evidence to support this finding, we do not adopt it 2 Matter of Smith Cabinet Manufacturing Company , Inc , 81 N L R B 886 (Chairman Herzog and member Houston dissenting ) 3 Matter of Seamprufe, Incorporated, 82 N. L R B 892 TENNESSEE COACH COMPANY 705 were legitimate union activities and as such entitled to the full pro- tection of the Act.4 Contrary to the opinion expressed by our dissenting colleague, the statements appraised by the Board in the Smith Cabinet and Seam- ppufe cases, involving violations of Section 8 (b) (1) (A) of the Act, were found to be coercive partly because their substantive content took on coercive attributes largely because they were made by au- thorized union agents. The words of union representatives could well have been taken as threats of future reprisal by the union itself for present failure to join, whereas here the employees had no reason to believe that Fritts was speaking for the Union. Accordingly, we hereby reverse the Trial Examiner's finding with respect to Fritts' discharge, and find that the Respondent thereby violated Section 8 (a) (3) of the Act. 2. We agree with the Trial Examiner that the Respondent inter- fered with, restrained, and coerced its employees in violation of Sec- tion 8 (a) (1) of the Act, by Superintendent Davis' questioning of Union Organizer Terry and employees Butler and Baker concerning the identity of union members when they sought employee Arwood's reinstatement; by Davis' similar questioning of Baker on another occasion, and his inquiry of employee Clabough as to his union mem- bership; by Assistant Superintendent Mitchell's interrogation of em- ployees Baker and Garrett and other employees regarding the progress of the Union's campaign, their membership and union sympathies; by Mitchell's threats to Baker and Garrett that the respondent would sell its business if the Union succeeded in organizing its employees; and by Foreman Malonee's inquiries of employees as to how they "felt" about the Union. We, however, do not agree with the Trial Examiner that Superin- tendent Davis' interrogation of Fritts, at the time of the latter's dis- charge, as to whether he belonged to the Union and attended meetings was not violative of Section 8 (a) (1). As indicated in the Inter- mediate Report, the Trial Examiner based his finding on the ground that these inquiries were legitimately made in the course of an investi- gation of conduct which he found was unprotected. In view of our contrary finding, and the fact that the investigation went beyond the proper scope of inquiry, we find that Davis' interrogation of Fritts also constituted interference, restraint, and coercion within the mean- ing of the Act. 'We do not here pass upon the right of an employer to discharge an employee for coercing fellow employees in their exercise of the rights guaranteed by Section 7 of the Act. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, a majority of the Board ,5 although concurring in the Trial Examiner's finding that Superintendent Davis' question- ing of employee Clabough as to his union membership was violative of the Act, disagrees with the Trial Examiner that it was an unfair labor practice for Davis to request Glabough and employee Keith to vote against the Union or to ask Clabough to persuade other em- ployees to refrain from voting for the Union. These latter statements contain no threat of reprisal or promise of benefit and are therefore privileged speech. THE REMEDY We have found that the Respondent violated the Act by interro- gating its employees concerning their union affiliations and sympa- thies, the identity of union members, and the progress of the Union's organizational campaign; by threatening to sell its business if the Union succeeded in organizing its employees; and by discriminatorily discharging and refusing to reinstate employee Homer F. Fritts be- cause of his union and concerted activities. Such discrimination, in the language of the United States Court of Appeals for the.Fourth Circuit, "goes to the very heart of the Act." 6 Upon the entire record, we find and infer that the Respondent's illegal action, mentioned above, discloses an intent to defeat self- organization and its objects, and an attitude of opposition to the purposes of the Act. Because of the Respondent's unlawful conduct and the underlying purposes manifested thereby, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed by the Act, and that danger of commission in the future of any or all of the unfair labor practices defined in the Act is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat.? In order, therefore, to make effective the interdependent guarantees of Section 7, to pre- vent recurrence of unfair labor practices, and thereby minimize in- dustrial strife which burdens and obstructs commerce, and thus effec- tuate the policies of the Act, we shall order the Respondent to cease and desist, not only from the unfair labor practices herein found, but also from in any other manner interfering with, restraining, or coerc- 5 Chairman IIei zog and Member Houston dissent from this conclusion They believe that Davis' request to these employees to vote against the Union and to urge others to do likewise, when viewed together with his other unlawful conduct in attempting to influence the results of the election, was tantnunount to an instruction or order, and far trom being a mere expression of opinion within the meaning of Section S (c) of the Act 6N L R B v Eatwistie Manufactnrrng Co, 120 F (2d) 532, 536 (C A 4) See also N L ' N R L B v Automotive Maintenance Machinery Co, 116 F. (2d) 350, 353 (C A 7) R B v Express Publishing Company, 312 U S. 426 , May Department Stores Co. v N L R. B, 326 U S. 376. TENNESSEE COACH COMPANY 707 ing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of Homer F. Fritts, we shall order the Respondent to offer him full and immediate reinstatement to his former or a substantially equivalent position,' without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the following periods (a) from the date of his discharge to the date of the Intermediate Report herein, and (b) from the date of our Decision and Order herein to the date of Respondent's offer of reinstatement; I less his net earn- ings during the said periods.10 ORDER Upon the entire record in the case, and pursuant 'to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tennessee Coach Company, Knoxville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Association of Street Electric Railway & Motor Coach Employees of America, A. F. L., Local Division 1423, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) Interrogating its employees as to their union affiliations, activi- ties, or sympathies, or the identity of union members; (c) Threatening to sell its operations if the above-named Union or any other labor organization succeeds in organizing its employees; 8 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position when- ever possible, but if such position is no longer in existence, then to a substantially equivalent position " Matter of The Chase National Bank of the City of New York, San Juan Puerto Rico Branch, 65 N L R B 827, 829 6 See, e g , Matter of Gibson County Electric Membership Corporation, 74 N L R B 1414 1i By "net earnings" is meant earnings less etpenses, such as for transportation, room, and hoard, incurred by an einployee in connection with obtaining work and working else- where, which would not have been incurred but for his unlawful discharge and the conse- quent necessity of his seeking employment elsewhere Matter of Crossett Lumber Com- pany, 8 N L R B 440 Monies received for work performed upon Federal, State, county, municipal , or other work -relief projects shall be considered as earnings Republic Steel Corporation v N L R B, 311 U S 7. '708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) 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 Amalgamated Electric Railway & Motor Coach Employees of America, A. F. L., Local Division 1423, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : - (a) Offer to Homer F. Fritts immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Homer F. Fritts for any loss of pay he may have suffered because of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the following periods (a) from the date of his discharge to the date of the Intermediate Report herein, and (b) from the date of our Decision and Order herein to the date of the Respondent's offer of reinstatement, less his net earnings during the said period; (c) Post at its operations in Knoxville, Tennessee, copies of the Notice attached hereto, marked "Appendix A." 11 Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately on receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, 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; (d) Notify the Regional Director for the Tenth Region, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent has discriminated against employees James B. Arwood and William Myles Baker, in vio- 11 In the event this Order is enforced by decree of the United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER " the words , "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING " TENNESSEE COACH COMPANY 709, lation of Section 8 (a) (3), and insofar as it alleges interference, re- straint, and coercion in violation of Section 8 (a) (1), except as other- wise found herein. MEMBER GRAY concurring in part and dissenting in part: I agree with the majority that the Respondent violated Section. 8 (a) (1) of the Act but did not discriminate against Arwood or Baker in violation of Section 8 (a) (3) of the Act. However, I must dissent from the majority's determination that the Respondent discrimi- natorily discharged Fritts. In my opinion, this determination repre- sents an unwarranted departure from the plain implication of our recent decisions in Smith Cabinet and Seamprufe cases 12 It is undisputed that Fritts was discharged for threatening employ- ees Horner and Kitts with loss of employment if they did not join the Union when it succeeded in organizing the plant. In the Smith Cabinet and Seamprufe cases, we held strikingly similar threats to be restraint and coercion of employees prohibited to labor organiza- tions and their agents by Section 8 (b) (1) (A) of the Act. It would be less than candid for me to concede that threats such as those in question did not constitute legitimate concerted activity when prac- ticed by labor organizations and their agents, yet at the same time find that the same conduct was protected when indulged in by rank and file union members. Manifestly, there can be no logic in such a holding. Nevertheless, this is the necessary effect of the majority's finding that Fritts' conduct was protected under the Act as legitimate concerted activity. To escape the plain implication of the Smith Cabinet and Seampm f e decisions, the majority labors to distinguish the threats in the cited cases from those involved herein on the ground, among others, that the former threats "were made without clear assurance of future op- portunity to join the Union to avoid discharge." But the threat in Seamprufe, at least, that "when the Union organized the plant `those who do not join the Union will eventually lose their jobs,"' unquestion- ably contemplated the same "future opportunity to join" as inhered in the threats in the present case 13 Nevertheless, the Board there unanimously' reversed the Trial Examiner, finding that threats were substantially coercive "as [being] reasonably calculated to coerce [employees] ... in the exercise of their statutory right not to join 12 Matter of Smith Cabinet Manufacturing Company, Inc , ( United Furniture Workers), 81 N L R B . 886 ; Matter of Seamprufe, Incorporated, 82 N. L R B 106. >a In the Smith Cabinet case, a majority of the Board ( Chairman Herzog and Member Houston dissenting ) found coercive a threat that "when we get in with the Union you old fellows won 't have a job." In the Seamprufe case, the dissenting members in Smith Cabi- net joined the majority because "the majority opinion in the Smith Cabinet case . . [was] so comprehensive . as to be a controlling precedent on facts so indistinguishable as those present here." 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union. . .. In these circumstances, to conclude that Fritts' threats were nonetheless protected would be anomalous, to say the least. Nor is the coercive character of Fritts' remarks, as the majority asserts, essentially different from that of the threats involved in the Smith Cabinet and Seamprufe cases because Fritts, unlike the per- son* who made the threats in the cited cases, was not an agent of his union.14 However, it is clear-the majority's assertion to the contrary notwithstanding-that the Board, in finding the threats in the cited cases to be substantially coercive, attached no significance to whether or not the threatening individuals acted as agents within the scope of their authority.15 Manifestly, the Board regarded the agency re- lationship relevant only as it established the unions' liability for the threats under the Act. Indeed, the test adopted by the Board in those cases was simply whether the threats in question were reasonably cal- culated to coerce employees in the exercise of their guaranteed rights under the Act not to join the union. And, in so doing, a majority of the Board in Smith Cabinet specifically rejected the view of the dis- senting members in that case, which the present majority now never- theless embraces, that the question of ability to carry out the threat of loss of employment is of no importance.li Because I find, for the foregoing reasons, that Fritts' conduct fell outside the scope of protected concerted activity, I must record my dissent that his discharge was discriminatory. 14 The majority, however, apparently concedes that the question whether an employee's concerted activity is protected does not depend on whether his conduct constitutes an unfair labor practice within the meaning of Section 8 (b) (1) (A) of the Act, for which his union is responsible. is Cf Matter of Perry Norvell Company, 80 N. L R B. 225, where the Board unani- mously found certain acts "to be substantively coercive in character " but refused to attribute these acts to the labor organization only because they were committed by strik- ing rank -and-file employees " Cf. also Matter of Sunset Line and Twine Company, 79 N L R B 1487. 10 Cf the dissenting Members ' view in Smith Cabinet in opposition to the majority's find- ing in that case that a threat of loss of employment to an employee who refused to cooperate with the union in its pending strike was violative of Section 8 (b) (1) (A). As the basis for their disagreement , the dissenting Members there noted : . . this remark was not reasonably calculated to restrain or coerce employee Holt, because the Unions , even if eventually successful in gaining recognition, were powerless , under the amended Act, to affect Holt's employment status with the Com- pany ( unless , of course , a union-shop contract was then properly executed and Holt refused to become a union member or was unwilling to pay union initiation fees or periodic dues ) In these circumstances they view such a declaration, the imple- mentation of which is deferred , and conditioned upon a circumstance not certain to happen in the first place , and impossible of accomplishment in any event, as falling within the protection of Section 8 (c) of the amended Act TENNESSEE COACH COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 711 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., LOCAL DIvisION 1423, or any other labor organization by discharging or re- fusing to reinstate , or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union affiliations or sympathies , or the identity of union members. WE WILL NOT threaten our employees to sell our operations if the above- named union or any other labor organization succeeds in organizing our employees. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to join or assist AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA , A F L, LOCAL DivISION 1423, or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , and to refrain from any and 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 National Labor Re- lations Act. WE WILL OFFER to Homer F. Fritts immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of our discrimination against him. WE WILL NOT discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of such labor organization. All our employees are free to become or remain members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. TENNESSEE COACH COMPANY, Employer. Dated------ ----------- By ------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered , defaced, or covered by any other material. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Charles M . Paschal, Jr., Esq., for the General Counsel. Charles D. Snepp, Esq., of Knoxville , Tenn, for the Respondent. W. C. Terry, Esq, of Nashville , Tenn., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on January 27, 1948, by Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, A. F. L., Local Division 1423, herein called the Union, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director of the Tenth Region (Atlanta, Georgia), issued a complaint dated March 25, 1948, against Tennessee Coach Company, Knoxville, Tennessee, herein called the Respondent, alleging that the Respondent had engaged in, and was engaging in, unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended June 23, 1947, by Public Law 101 (known as the Labor Management Act of 1947), 80th Congress, Chapter 120, First Session, herein called the Act. Copies of the charges, the complaint, and notice of hearing were duly served upon the Respondent and the Union With respect to the unfair labor practices, the complaint, as amended,' alleged in substance that the Respondent (1) on October 31, November 3, and November 22, 1947, respectively, discriminatorily discharged J. B. Arwood, Homer Fritts, and W. M. Baker, and thereafter refused and failed to reinstate them, because of their membership and activities in the Union and because they engaged in concerted activities with other employees of the Respondent for the purposes of collective bargaining and other mutual aid and protection, and (-2) from Sep- tember 1947, to the date of the issuance of the complaint, by certain officers, supervisors, agents, representatives, and employees committed, authorized, insti- gated, and acquiesced in the following acts : (a) statements and conversations discouraging activity on the part of its employees for the purposes of collective bargaining and other mutual aid and protection and discouraging membership and activity among its employees in the Union; (b) condoning, permitting, en- couraging, and participating in the circulation of anti-union petitions; (c) stat- ing, advising, warning, and threatening employees with discharge because of their activities in support of the Union ; (d) inquiring, questioning, and interro- gating employees about their union desires, sympathies, memberships, dues, activities, meetings, and union business; (e) inquiring, questioning, and inter- rogating employees about the way in which they intended to vote in a Board election and soliciting them to vote against the Union and to get other employees to do the same; (f) stating, advising, and warning that the Christmas bonus would not be paid if the activities on behalf of the Union did not cease , (g) keep- ing union meetings under surveillance ; (h) advising, promising, and inducing employees to vote against the Union on the promise of receiving a wage increase ; (i) warning, threatening, and predicting that the Respondent would sell its busi- ness in the event the Union won the election ; and (j) stating and advising that the progress of the Union had almost caused the dismissal of the superintendent because he had not put a stop to such activities. The complaint further alleged ' This designation will also be used to refer to the attorney on the staff of the General Counsel who presented the case in his behalf 2 At the hearing, the complaint was amended in certain minor respects TENNESSEE COACH COMPANY 713 that by the foregoing conduct the Respondent engaged in violations of Section 8 (a) (1) and (3) of the Act. On April 5, 1948, the Respondent filed its answer, in part admitting and in part denying the allegations in the complaint, but denying that the Respondent had engaged in any unfair labor practices. As special defenses the Respondent alleged that Arwood, Fritts, and Baker were discharged "for just and sufficient cause." Pursuant to notice, a hearing was held on June 14, 15, 16, and 17, 1948, at Knoxville, Tennessee, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by an official representative and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates, spelling, and minor variances. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before, and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The parties waived oral argument. On August 2, 1948, the Respondent filed a brief with the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Tennessee Coach Company, a Tennessee corporation with its principal office and place of business in Knoxville, Tennessee, is a common carrier engaged in the transportation of passengers. In the course and conduct of its bus operations during the year ending March 1, 1948, the Respondent purchased motor coaches, trucks, tires, gasoline, oil, parts, tools, and other supplies, valued in excess of $300,000, of which approximately 35 to 40 percent originated from points outside the State of Tennessee. During the same period, the Respondent transported passengers in interstate commerce between various termini located in the States of Tennessee, Georgia, Virginia, and West Virginia, and approximately 25 percent of its total revenue was derived from interstate passengers. II THE ORGANIZATION INVOLVED Amalgamated Association of Street, Electric Railway & Motor Coach Em- ployees of America, Local Division 1423, is a labor organization, affiliated with the American Federation of Labor, admitting to membership employees of the -Respondent. III. THE UNFAIR LABOR PRACTICES A Background, summary of events The record discloses that several attempts on the part of various labor -organizations have been made to organize the employees of the Respondent. On March 9, 1944, upon the petition of Division No. 1104 of the Union, the Board -directed that an election be held among the bus drivers of the Respondent to 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine whether or not they desired such division to be their statutory- representative 3 The petitioning organization failed to win the election.' In December 1946, the Union commenced organizational activities among the bus drivers of the Respondent and about September 1, 1947, extended its cam- paign to the maintenance employees of the Respondent. On September 24. 1947, William C. Terry, special organizer for the Union, sent the Respondent- the, following telegram. Being the representative of a majority of the employees of Tennessee Coach Company, I request a conference with you this date. It being our desire to bargain collectively as set out by Congress. I can be reached at Farragut Hotel, Room 506. After attempting unsuccessfully to reach Terry by telephone on September 24 and 25, 1947, Charles D. Snepp, counsel for the Respondent, sent the following letter, postmarked September 25, 1947, to Terry at the Farragut Hotel : Referring to your telegram of September 24th addressed to Air Kraemer at Tennessee Coach Company Upon its receipt, efforts were made to communicate with you by telephone on three occasions yesterday and twice during today, but no one answered your room phone. After your Union has been certified by the National Labor Relations Board as the bargaining agent for our employees, a meeting can then be arranged between us. If you have not as yet filed a petition with said Board for an election, it is assumed that you will do so However, Terry never received the letter and it was returned unclaimed to the Respondent At a conference in Snepp's office in early October 1947, Terry, at his request, was given a copy of the letter. On October 20, 1947, the Union filed with the Board 9 (c) petitions in Cases Nos 10-RC-28 and 10-RC-29, covering separate units for bus drivers and for maintenance employees of the Respondent, respectively. On November 1 and 10, 1947, respectively, Bruce J Arwood and Homer Fritts were discharged. On November 11, 1947, the Union filed an amendment to its petition in Case No 10-R(-28, which in effect, consolidated the units of the two petitions in one On November 12, 1947, the Respondent and the Union entered into a consent election agreement on the basis of the amended petition.` On November 22, 1947, William M. Baker was discharged On December 3, 1947, the Union filed with the Board charges that the Respondent had engaged in,unfair labor practices by, inter alta, discriminatorily discharging Arwood, Fritts, and Baker, as well as C E Dykes On December S. 1947, the Union filed a written waiver with the Board whereby it waived the filing of any objections to the election in the representation cases on the basis of any issues in the unfair labor practice proceeding, 10-CA-142. 3Matter of Tennessee Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1164, affiliated with the A F. ofL,55N L R B 362 4 Of the 118 eligible voters in the appropriate unit, 104 cast valid ballots of which 20 were for the Petitioner and 84 against the Petitioner with 2 ballots challenged and 1 ballot blank and void In making these findings the undersigned has taken official notice of the Board's records 5 During this period, representatives of the Union and the Respondent held several con- ferences, which facilitated the resolution of the issues in the representation proceedings TENNESSEE COACH COMPANY 715 Pursuant to the consent election agreement, the Board conducted elections among the Respondent's employees on December 9, 10, 11, and 12, 1947. The results of the election were as follows : Number of eligible voters-------------------------------- 267 Number of void ballots--------------- --------------- -------------------- 0 Number of votes for the Union ------------ --------------- 67 Number of votes against the Union------------------------ 190 Number of valid votes counted--------------------------- 257 Number of challenged ballots_____________________________ 7 Number of ballots cast----------------------------------- 264 No objections to the elections were filed by any of the parties and on December 24, 1947, the petition of the Union was dismissed by the Board. B. The alleged discriminatory discharges ; interference, restraint, and coercion 1. James B. Arwood Arwood commenced his employment with the Respondent on June 24, 1941, as a bus washer with a wage of -35 cents an hour at its Sevier Avenue garage in Knoxville A year later he shifted to a position as greaser at 50 cents an hour. After 4 or 5 months in this position, he became a mechanic helper at 65 cents an hour. In February 1945, when Arwood's foreman, Franklin W. Lovell, was repri- manding Arwood and another employee, an argument ensued and Arwood con- cluded the discussion by saying to Lovell, "I've heard all I want to hear about it . . . that's the way I feel about it and if you open your mouth again, I'll stomp you down through the floor." The next morning Lovell removed Arwood's time card from the rack and recommended to Superintendent Tom Davis that Arwood be discharged. Following the customary practice of the maintenance employees in cases when their time cards were removed from the time clock rack, Arwood reported to Superintendent Davis and discussed the reason for the removal of his time card. Davis disciplined Arwood by laying him off from work for a week and transferring him to another garage of the Respondent at Kentucky Street in Knoxville.6 In reference to his lay-oft, Arwood testified, "I went to Davis, and Davis said, well, says, You go home and come back Wednesday We'll look into this , and Mike [ Kraemer, an official of the Respondent ] told me to fire Lovell three different times ' " Counsel for the Respondent moved that Arwood's testimony in respect to Kraemer be stricken for the reason that Kraemer had died between the date, of this conversation and the hearing and that under the laws of Tennessee such testimony was inadmissible . The undersigned reserved ruling on the motion. Counsel referred in argument to Tennessee Code § 9779, as amended 1947 This section reads as follows It shall not be lawful for any party to any action , suit, or proceeding to testify as to any transaction or conversation with , or statements by, any opposite party in interest, if such opposite party is incapacitated or disqualified to testify thereto, by reason of idiocy , lunacy, or insanity , unless called by,the opposite side , and then only in the discretion of the court Provided, if a corporation be a party, this disqualifica- tion shall extend to its officers of every grade and its directors. The language of this section clearly does not cover the circumstances referred to in the Respondent 's motion , namely , Alike Kraemer 's intervening death between the time of the conversation and the date of the hearing. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arwood worked at the Kentucky Street garage for several months and then was transferred back to the Sevier Avenue garage where he worked until he was laid off and discharged in October 1947. At that time his wage rate was $1.10 an hour. On September 4, 1947, Arwood joined the Union. Thereafter he attended union meetings, "gave out two or three of them applications" for union membership, and talked to fellow employees about the Union. Arwood testified that about October 27, he had the following conversation with Tom Davis, shop superintendent, in the presence of about 8 or 10 other employees : It was some eight or ten of us sitting at the front eating dinner. We had eaten dinner, sitting up there on lunch hour. Tom Davis come in by there, and we had a campaign on up at the Eagles Club [a fraternity organization]. Had a rod and reel for the one that got the most members, won a rod and reel, had a compaign on. Mr. Davis was a great fisherman, and I said, "How about selling you a rod and reel I'm going to win?" He says, "Is it union?" And I says, "Yeah, I suppose it is." He says, "They tell me you are an awful union man; you are writing up more than anybody else" I said, "I might be, but I haven't written up anybody yet." He went back on through the shop, and that was all that was said At the time of the hearing, Davis was mentally ill and a patient at Eastern State Hospital, a mental institution in Tennessee, and was unable to appear as a witness or to give testimony in the form of a deposition.' Arwood's testimony in respect to the conversation with Davis stands alone in the record ; none of the 8 or 10 employees who were present during the colloquy was called by the General Counsel to corroborate Arwood's testimony. In view of these circumstances, con- sidered in the light of Arwood's obvious interest in the proceeding and of the subject matter of the conversation , namely a membership campaign in a fra- ternity organization, the undersigned is reluctant to credit Arwood's testimony. As to other matters, hereinafter related, the undersigned did not find Arwood's Footnote 6-Continued. No reference was made by counsel to Tennessee Code § 9780 , as amended 1947, which reads as follows : In actions or proceedings against executors, administrators , or guardians , in which judgments may be rendered for or against them , neither party shall be allowed to testify against the other as to any transaction with or statement by the testator , intestate, or ward , unless called to testify thereto by the opposite party Provided if a corpo- ration be a party, this qualification shall extend to its officers of every grade and its directors Obviously , the limited scope of this provision does not encompass Board proceedings and does not render the testimony in question inadmissible The motion to strike the testimony of Arwood is hereby denied Cf Matter of Reynolds Ware Co , 26 N. L . R B 662 , enf'd 121 F (2d) 627 (C C A 7) ; Matter of Montgomery Ward if Co. Inc, 31 N. L R. B. 786; Matter of Metal Mouldings Corp , 39 N L B B 107. However, for reasons hereinafter more fully stated in respect to additional uncorrobo- rated statements attributed by Arwood to Davis, and also upon the undersigned 's observa- tion of the witness, the undersigned accords no credence to Arwood 's testimony respecting Davis' alleged instructions from Kraemer ' No specific contention was made that the testimony of witnesses attributing statements to Davis should be stricken because of Tennessee Code § 9779 Inasmuch as Davis was not an officer of the Respondent corporation , the statute would not apply to such testimony. Moreover, as noted in the margin above, the Board has held similar state statutes not to affect Board proceedings The undersigned finds the statute inapplicable to the testimony concerning Davis' statements and activities In weighing the testimony , however, the undersigned has considered the fact that Davis ' illness prevented his appearance in the proceeding as a witness TENNESSEE COACH COMPANY 717 testimony entitled to credence. Upon the entire record, as well as his observation .of the witness, the undersigned does not credit Arwood's testimony in respect to this conversation with Davis. In October 1947, Arwood worked on the day shift, which commenced at 8 a. in. The record conclusively establishes that when employees were going to be absent from work or considerably late in reporting for work, they either obtained per- mission in advance for such contemplated absences, or telephoned the garage and informed any of the supervisors on duty of the necessity for the employees' remaining away from work 8 On the morning of October 27. 1947, Arwood, finding it necessary to seek a personal loan from "the Union Finance," went to a loan office in downtown Knox- ville and did not report to work at 8 a. in. Admittedly, he had not previously notified his supervisors of his intention to be away from work on October 27 and he did not inform them by telephone or other message that he would be late in reporting for work that morning. According to his testimony, he intended to stop off at .the garage enroute from his home to the loan office and inform his supervisors that he would be late that morning, but a neighbor offered him a ride downtown and he did not stop at the garage. At 10:30 a. in., Arwood came to the garage and told Foreman Lovell, "I had to go to town ... It is late. I will have to wait for afternoon to come in to work." According to Arwood, Lovell replied, "That's all right. [ Superinten- dent] Tom Davis was asking about you awhile ago."' At 1 p. m. Arwood returned to garage to find his time card missing from the rack. He went to Superinten- dent Davis and inquired, "Am I fired?" Davis asked where Arwood had 'been and the latter explained his absence and the reason therefor. According to Arwood, Davis said, "Well, you said I wasn't treating you right, said I fired your boy and you said I wasn't treating you right." Arwood further testified that he denied to Davis having made such statements and that he also answered in the negative a question propounded by Davis as to whether Arwood had talked to Al Kraemer, president of the Respondent. Thereupon Davis said, "Go ahead and take off awhile . . You'll appreciate your job better." A few minutes later, Davis met Arwood and said, according to the latter's testimony, " Bruce, I don't know what's the matter with you . . . I have been good to you. 8 Although the Respondent apparently did not have a written set of rules governing em- ployee conduct , this rule was well known and customarily followed by employees , as shown by their testimony. Arwood testified that at a meeting of the Eagles Club, a fraternity organization to which both he and Foreman Lovell belonged , the question of the absence of another member fellow employee Charles Caldwell , arose, and Lovell stated that Cald- well had "called him that evening-first he had heard from him in three days, that some- body had stolen his automobile and couldn 't get there." Lovell denied having made the statement attributed to him by Arwood and testified that Caldwell telephoned the first morning after his car was stolen, reported the facts of the theft, and notified the Respondent -of his. inability to report to work, his home being in the country some distance from the Respondent's garage . In view of the fact that all employees who were called as witnesses and questioned as to the rule of reporting or obtaining permission for absences from work testified that they uniformly notified the Respondent either in advance or on the morning of their absences, as well as the failure of any other testimony to corroborate Arwood's testimony or show that employees remained away from work without notification , and from the undersigned's observation of the witnesses , the undersigned is of the opinion that Ar- wood was mistaken as to Lovell's statement at the Eagles Club meeting. Lovell 's testimony in regard to this incident is therefore credited 8 Lovell 's testimony was in general agreement with that of Arwood as to this conversation 'except that Lovell denied telling Arwood that his absence was "all right " Inasmuch as the disciplinary action against Arwood arising from this incident was initiated by Davis, the undersigned finds it unnecessary to resolve this conflict in testimony. 853396-50-vol 84-49 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Never been a man that ever cussed a shop foreman out and stayed here." Arwood 'did not reply and left the garage. , I Shortly thereafter, Arwood reported his lay-off; to W. C. Terry, organizer -for the Union, and Terry advised him to come to the garage each morning at the time his shift commenced work "to see if his card was in the rack, and if not to -get out and not to get in any argument with any officials of the company."" Arwood followed these instructions and reported to the garage each morning of the week of October 27 at about 8 a. m, remaining only 5 or 10 minutes since his card was not in the rack. However, Arwood admittedly "made no attempt to go to'see" Davis on these mornings. Arwood testified that during the week following his lay-off he encountered Earl Lowry who was the chief dispatcher in charge of the drivers and dispatchers of the Respondent but whose supervisory authority did not extend to the Respon- dent's maintenance employees, and had the following conversation with Lowry : Well, I was down here at the bus terminal one morning right on the tracks. Earl [Lowry] come out of the restaurant and walked up to me, and says, "You and Tom Davis get your business straightened up?" and I said, "Well, I haven't seen him." Earl says, "I tell you something. I don't know whether you know it or not, but . . I know what I'm talking about. . . Leave my name out of it You are going to be laid off per- manently'if you don't go and see Tom and lay your cards on the table and tell him you ain't going to have nothing more to do with the union." In respect to this conversation Chief Dispatcher Lowry testified as follows : Mr. Davis called me one clay It was some few days after Bruce [Arwood] had been fired or laid off, and asked if I had seen him over and around the terminal, and I told him I had seen him around the terminal And Mr. Davis asked me if I would tell Bruce he wanted to see him. . The next morning I guess it was, I met Bruce and I was coming out of White's Cafe, and Bruce was right near the entrance , . That is next door to the terminal. . . Of course, I had nothing to do with Mr Arwood and nothing to'do with the mechanical end of it, but I did ask Bruce if he had seen Mr. Davis. And I said, "It is,nothing concerning me, Bruce, but I would suggest that you go over and try to get straight with Mr. Davis." . . . The union wasn't mentioned at that, time or at any other time '1 In addition, Lowry specifically denied that he informed Arwood that the latter would be reinstated by Davis if Arwood "went back and got squared off" with Davis about the Union. From the undersigned's observation of the witnesses and upon the entire rec- ord, including inter alia, (1) Arwood's failure to seek an interview with Davis a ''f v days after the lay-off and seek reinstatement, (2) the lack of any con- crete probative evidence showing that the Respondent was aware of Arwood's union activities, (3) the fact that Arwood was not conspicuously an active ad- herent of the Union, and (4) the fact that, as hereinafter set forth, the testi- mony of Arwood with respect to the surveillance issue was not worthy of credence, the undersigned finds that the conversation between Lowry and Arwood oc- 10 This quotation is from Terry's credible testimony 11 To a certain extent, Lowry's testimony in this regard was corroborated by that of Herbert L . Mitchell , assistant superintendent Mitchell testified that after Aiwood's card was removed from the time card rack, Davis informed Mitchell that Davis wished to talk to Arwood , "wanted him to understand that he [Davis ] was running the shop , and wanted him to be there , or either call in " According to Mitchell , Davis further stated that Arwood "never did come to talk to him." TENNESSEE COACH COMPANY 719 curred substantially as testified to by Lowry. Arwood's testimony, when in con- flict with that of Lowry, is not credited. On Saturday morning, November 1, 1947, Arwood encountered Davis at the garage and, according to Arwood's testimony, Davis inquired, "Have you got your check?" When Arwood replied that he had not, Davis stated, "Well, I think it's ready." Arwood countered, "I will see about it." On November 10, 1947, he returned to the garage and obtained his paycheck, dated October 31. About November 3, 1947, employee William M. Baker, at the end of the work day, said to Davis, "I want a meeting with you after while," and Davis replied, "I will be home in about 30 minutes ... Come on down." However, Baker ad- mittedly did not inform Davis of the purport of the meeting or who would be in attendance. Within the hour, thereafter, Baker, Organizer Terry, and employee James G. Butler met Davis at the latter's home and conferred with him respecting the reinstatement of Arwood. With respect to this conference, Terry testified credibly as follows : We talked with . . . Mr. Davis, for quite some time, in regards to re- storing Mr Arwood to service with Tennessee Coach Company. Mr. Davis stated at that time that he should have fired Mr. Arwood some three years ago due to a misunderstanding between he and one of the foremen em- ployed by Tennessee Coach Company . . . He stated that he transferred Mr. Arwood to the Kentucky Street garage, and Mr. Arwood stayed there for quite some time until that garage was terminated, and then he was moved back to Sevier Avenue, the company's main plant, and continued on to work there until he was discharged. Mr. Davis stated in the presence of these other two men that lie had made him a good employee but it seemed that here of late he just didn't want to do right. I asked him what his objection was, to not doing right. He never did state any objection, said lie just didn't want to do right, he should have fired him three years ago. I asked Mr. Davis to take it under consideration, not to even give me an answer then, that we were interested in seeing Mr. Arwood go back to work and to call me or to contact me at the Farragut Hotel the following day. This was not done . . . However, I did call him . . . the following day . . . His answer was he just couldn't-nothing he could do. Terry further testified as follows with respect to the conference with Davis: Mr. Davis . . . continually repeated, "So Bruce"-speaking of Mr. Ar- wood-"So Bruce is a member of the union?" My answer to Mr. Davis, to that was . . . it didn't make any difference whether he was a member of the union or not, we were interested in this man going back to work. I said possibly all members of the union And he asked about several other peo- ple being members of the union. And I told him 'my answer to that was that that was none of his affairs. It was secret as far as the men declaring their intention to become affiliated with the Association. In addition, Terry testified that during the course of the conversation, Davis inquired as to the union membership of employees Butler and Baker, who par- ticipated in the conference. Davis was informed that Baker was the secretary- treasurer of the Union and Butler was a committeeman elected by the members. The testimony of Butler and Baker corroborated that of Terry. In view of the mutually corroborative testimony with respect to the interview, as well as the undersigned's observation of the witnesses, the undersigned finds that the con- 0 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARI` versation between the representatives of the Union and Davis occurred sub- stantially as testified to by Terry. The General Counsel apparently contends that Arwood was discriminatorily discharged because of his union membership and activities and that the Respond- ent seized upon Arwood's violation of a company rule by absenting himself from work without notice, as a pretext to conceal its illegal motive.12 The Respondent, on the other hand, contends, that the reason for Arwood's discharge arose not from his union membership or activities but from the facts "(1) That he wil- fully violated a company rule by not notifying the shop of his laying-off from work. (2) That he wilfully and bullheadedly failed and refused to go see the shop superintendent when his time card was removed from the rack, as required by the company rule, with which he was thoroughly familiar. (3) That instead, he telephoned Terry and took his orders from him, and which orders were con- trary to the company rule." Although the matter is not absolutely free from doubt, the undersigned is of the opinion that the General Counsel has not established upon the preponderance of the testimony that the discharge of Arwood was discriminatory. It is clear that his failure to notify the Respondent of his intention to be absent from work on the morning of October*27, was a violation of a work rule of the Respondent. Although the record indicates that no employee was ever discharged for a single infraction of this rule, the initial disciplinary action taken with respect to Arwood was a lay-off and not a discharge. It is true that the lay-off was for an in- definite period and that during the week thereafter Arwood's time card was never replaced in the time rack. However, had he observed another rule of the Re- spondent applicable to these circumstances, namely, an interview with the super- intendent in the case of a timecard missing from the rack, it is possible that he might have been reinstated to work. In view of this rule, Arwood inferentially had knowledge that Davis wanted to talk with him. In addition, however, Arwood had clear and positive knowledge of Davis' desire to talk with Arwood, as revealed by the message from Davis relayed to Arwood by Chief Dispatcher Lowry. Never- theless, despite his awareness that Davis wished to consult him, Arwood at no time after October 27 attempted to see Davis. In view of these facts, the under- signed is of the opinion that the Respondent was under no obligation to seek out Arwood and offer him reinstatement after his lay-off of October 27. As previously mentioned, Arwood was not particularly active in the Union and the record does not establish that the Respondent was aware of Arwood's union membership. Indeed, Davis' statements made at the conference with Terry and the other representatives of the Union on November 3, after the termination of Arwood's employment, indicate that he was not until then aware that Arwood might be concerned in the Union. Upon the entire record, including the fact that Arwood had previously been disciplined for insubordination and rudeness to his immediate foreman, the under- signed finds that Arwood Was not discriminatorily discharged in violation of the Act. However, the undersigned finds that Davis' interrogation of Terry, Butler, and Baker as to the union membership of other employees constituted interference with the rights guaranteed by Section 7 of the Act 18 12 The General Counsel waived oral argument at the conclusion of the hearing and did not file a brief with the undersigned. 13 See Matter of ,Sunland Biscuit Company, Incorporated, 78 N. L R. B. 714, and cases cited therein. It is not found that Davis' inquiry as to the union membership of Baker and Butler was violative of the Act, inasmuch as they, in effect, appeared at the conference as a committee of the Union and, in the opinion of the undersigned, Davis was entitled, under such circumstances, to inquire as to their status and credentials. 0 TENNESSEE COACH COMPANY 721 2. Homer F. Fritts Fritts entered the Respondent's employ around March 15, 1944, as a mechanic helper at 65 cents an hour at its Kentucky Street Garage. In, the spring of 1947, he transferred to the Sevier Avenue garage. At the time of his discharge on November 10, 1947, he was earning 95 cents an hour working on the service line on the 11 p. m. to 7 a. m. shift. On September 5, 1947, he joined the Union and thereafter attended one or two meetings. About November 3, 1947, when he was servicing a bus with defective brakes; he inadvertently caused the bus to start to move and it crashed into another bus in the garage, causing damage valued at approximately'$25. No one was injured. However, if the runaway bus had moved any further, an employee who was working beneath the rammed bus would have been injured. At the instruc- tion of his foreman, Fritts reported the accident to Superintendent Davis the next morning. According to Fritts' testimony, Davis said, "I know you couldn't help it, but be careful the next time." During the Union's campaign in the fall of 1947, Fritts sought during working hours to enlist the membership of employees Carl E. Horner and Fred N. Kitts, who worked on his shift. According to the credible testimony of Horner, Fritts, as well as employee C. E. Dykes, urged him at work to join the Union almost every evening for a 2-week period and stated that if he joined during the campaign, the fees would be $2, whereas if he waited until the organization was completed, the fee would be $50. Fritts and Dykes further stated that "If you don't join now, they will make it so hard on you you will have to join or quit work one, when they do organize it." As an additional inducement to enlist in the ranks of the Union, Fritts and Dykes told Horner that once the Union effected its organization of the employees, non-members would be given from 12 to 60 days to join and if they failed to join within that time, they would have to quit work. Similar statements were made by Fritts and Dykes to employee Fred N. Kitts on several occasions. Kitts and Horner, who were 19 years old, reported these conversations and statements by Fritts and Dykes to their foreman, Carroll Mallonee, and asked him whether they had to join the Union in order to continue their employment by the Respondent. Mallonee ex- plained that they were free to exercise their own judgment in that matter. On November 7, 1947, the night following the report of Kitts and Horner, Mal- lonee removed the cards of Dykes and Fritts from the time card rack and, accord- ing to Mallonee's testimony, which the undersigned credits, "explained to them that they would have to see Mr. Davis, and I told them then why, and they said that they were just joking. I told them that was too serious a thing to be joking about at a time like that." " ° 1* The findings in this paragraph are based upon the credible testimony of Horner and Mallonee Inasmuch as Kitts' testimony proved to be at variance in several material aspects with a statement given by him to a field examiner of the Board and produced by the Gen- eral Counsel in a cross -examination of Kitts, the undersigned has placed no reliance upon Kitts' testimony . For the same reason, the undersigned makes no findings based upon Kitts' testimony as to the complaint 's allegations of violations of Section 8 (a) (1) of the Act Fritts denied that he had ever asked any employee to sign an application card and that he ever made any of the statements testified to by Horner , but admitted that be had heard a group of employees , including Butler and Clabough , "kidding" Horner and Fritts while they were having coffee at "supper time" and that statements of the nature testified to by Horner were then made but that Fritts did not utter them According to Fritts, he told Horner at the end of the conversation that the other employees were only jesting Although Butler was a witness for the General Counsel, he was not questioned in regard 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 8, 1947, Fritts reported to Superintendent Davis. Assistant Superintendent Mitchell was also present. Davis informed Fritts of the com- plaints made by Kitts and Horner. According to Mitchell's uncontraverted tes- timony, Davis told "Fritts that he had been threatening some boys out there and that he did not intend to have that, that this election was going to run fair and square." Fritts testified, and the undersigned credits him in this regard, "I told him I wasn't guilty, and told him I didn't see Dykes anywhere when he was doing the talking . . . I told Mr. Davis that we were kidding the boy that night at supper time." Davis asked whether Fritts belonged to the Union and attended union meetings. Fritts replied that he didn't have the "$2 to join." At the con- clusion of the int (view, Davis directed Fritts to return on Monday morning and stated that meanwhile Davis would investigate the matter further 15 On Monday, November 10, 1947, Fritts reported to Davis and Mitchell and was discharged, with Davis stating, according to Mitchell's uncontraverted testimony, "Well, whether you belong to the union or whether you don't, I am going to fire you for making them statements and threats to them boys." 1° The Respondent contends that it was justified in discharging Fritts because in his organizational efforts as an agent of the Union, he engaged in conduct viola- tive of Section 8 (b) (1) of the Act.17 Inasmuch as the Board has found that to the incident related by Fritts and no corroboration of Fritts' testimony was given by any witness Fritts was not a particularly 'impressive witness He was evasive at times and incoherent in his testimony. Some of his testimony inferentially seems to be an admission that he may have made some of the remarks testified to by Horner. Upon the entire record and from his observation of the witnesses, the undersigned does not credit Fritts in regard to this issue but relies upon the testimony of Horner and Mallonee. In resolving the conflicts in testimony, the undersigned has considered (1) the fact that Horner's name appears upon a petition circulated by opponents of the Union and (2) his testimony that it was not his signature. The undersigned credits Horner's testimony in this regard The petition to which Carl Horner's name was affixed also bore the name of his father and the two signatures appear to be in the handwriting of the same person. The undersigned infers and finds that someone other than Carl Horner affixed his name to the petition. 15 These findings are based upon a composite of the testimony of Fritts and Mitchell. In the main, their testimony was in accord except as to certain details. Thus, Mitchell denied that Davis inquired as to the union activities of Fritts but testified that Fritts stated at the meeting that he could not afford to join the Union. On the other hand, Fritts testified that he was asked whether he belonged to the Union and attended union meetings and that he replied that he attended "to see what was going on " Mitchell also testified that Fritts did not deny the charges made by Davis and did not give the excuse that he was "kidding" Horner and Kitts Although the resolution of these conflicts in testimony is not particularly vital to the discussion of Fritts' case, the undersigned is of the opinion that under the circumstances it is highly probable that Davis did inquire as to Fritts' membership and activities in the Union and that Fritts denied any association therewith. Again, it seems more probable, in the undersigned's opinion, that Fritts would deny the charges and offer the explanation he did at the hearing. In view of the nature of Fritts' conduct and activity under investigation and of the conclusion hereinafter reached as to the legality of Fritts' discharge the undersigned finds that Davis' inquiries as to Fritts' membership and activities in the Union were not violative of the Act. 19 Employee Dykes was also discharged for making similar statements. The complaint did not allege that his discharge was discriminatory. 17 The provisions of this section, insofar as applicable to the facts presented by Fritts' case, make it an unfair labor practice "for a labor organization or its agents . . . to restrain or coerce employees in the exercise of the rights guaranteed in section 7 . Section 7 provides: Employees shall have the right to self-organization, to form, join, or assist labor organ- izations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all TENNESSEE COACH COMPANY 723 Section 8 (a) (3) of the Act has not been infringed by employers in the discipline of employees or in the failure to reinstate strikers because of the employees' par- ticipation in "concerted activity not protected by the Act" 1g or in "unlawful activity" 10 in connection with a strike, it would appear that activities of a union violative of Section 8 (b) (1) would also be unlawful concerted activities and, that participants therein might be disciplined by the employer without violating Section 8 (a) (3) of the Act. This apparently is the premise for the reasons relied upon by the Respondent for its discharge of Fritts. From this premise, the Respondent argues that Fritts made the statements, related above, to Horner and Kitts as an agent of the Union. Generally speaking, a labor organization is responsible for its agents' acts of unfair labor practice (1) when the acts have been specifically authorized, (2) when, though unauthor- ized or even expressly forbidden, they have been committed the scope of employ- ment of the agents, or (3) when they have been subsequently ratified by the labor organization .20 Of these grounds for establishing agency, the first and third are inapplicable to the facts of the instant proceeding, for the testimony of Organ- izer Terry shows that the Union never authorized or ratified the statements made by Fritts. However, the undersigned is of the opinion that Fritts' statements and activities are attributable to the Union on the "scope of employment" theory. Terry testified that when an employee joined the Union, he was given 2 or 3 application cards, signatures to which he was to attempt to obtain from fellow employees "after the men got off from work, at their homes, or any place " According to Terry, he also instructed the union members "not to discuss union while on the company's time." Thus, it is clear that Fritts was authorized by the Union to solicit memberships during the Union's organizing campaign. In these circumstances, Fritts' statements, though not specifically authorized, were incidental to the authorized solicitation of memberships and should reasonably have been expected by the Union in planning its organizational strategy. The undersigned finds that in soliciting the membership of Horner and Kitts and in making the statements, heretofore found, in connection with such solicitation, Fritts was acting within his apparent "scope of employment as agent for the Union." As for the Respondent's contention that Fritts' statements were violative of Section 8 (b) (1), the legislative history of the Act leaves no doubt as to the intent of Congress that such statements were specifically within the ambit of conduct and activities made unlawful by Section 8 (b) (1). In the course of Congressional debate in respect to Section 8 (b) (1) of the Act, the principal sponsors of the legislation gave examples of the types of conduct that the section was intended to reach. Thus, Senator Ball gave the following example : The common practice in organization campaigns is for the business agent to threaten all employees and tell them that if they do not join the union before the election, or vote for it, they will be charged double initiation fees afterward. That is done in a great many cases. It is clearly an attempt to of 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 au- thorized in section 8 (a) (3). 18 Matter of Dearborn Glass Company, 78 N. L R B 891 See also Matter of the Inter- national Nickel Company, Inc., 77 N. L. R. B. 286. 19 See Matter of Socony Vacuum Oil Company, Inc, 78 N. L. R. B. 1185 20 See Restatement of Agency, H 82, 83, 93, 100, 212, 216, 218, 219, 228, 230 . See also Section 2 (13) of the Act. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerce and threaten employees in the exercise of the freedoms guaranteed by the act. (Cong. Rec., April 25, 1947, p. 4137 ) In a later debate, Senator Ball gave still another example of conduct violative of Section 8 (b) (1), as follows: The cases which have been cited show that in a great many organizational campaigns union agents make threats. If an individual is not willing to, join, they, threaten that when they get a majority and obtain a contract they will charge him twice as high an initiation fee, or higher dues. In some cases they simply make the threat that when the employees are organized and the union becomes the exclusive bargaining representative, they will take care of the recalcitrant employee. In a great many shops quite often, that threat is sufficient. (Cong. Bee, May 2, 1947, p. 4559.) Similar examples were given by Senator Taft in debate as follows : In the case of unions,'in the first place, there might be a threat that if a, man did not join, the union would raise the initiation fee to $300, and he would have to pay $300 to get in ; or there might be a threat that if he did not join, the union would get a closed-shop agreement and keep him from work- ing at all. (Cong. Rec., May 2, 1947, p. 4562.) In commenting upon the report of the conference committee on the Act, Con- gressman Landis made the following observation : There has been some misinformation on some of the penalties on most important things, and I should like to give you the penalties in this bill. .. . Third, on violence, mass picketing, and other intimidation and' coercion, the penalties are, first, discretionary injunction by the Board; second, possible suit for damages ; third, cease-and-desist order of the Board ; and fourth, employees discharged therefor not entitled to reinstatement. (Cong. Rec., June 5, 1947, pp. A2824-5.) In view of these expressions of the Congressional mandate as to the scope of Section 8 (b) (1) of the Act, and upon the entire record, the undersigned finds that Fritts' statements to Horner and Kitts were unlawful concerted activity within the meaning of Section 8 (b) (1), that the Respondent discharged Fritts because of his unlawful conduct,21 and that by discharging Fritts, the Respondent has not violated Section 8 (a) (3) of the Act. 21 Although the record indicates that Mallonee was opposed to the Union, the record, contains no probative evidence indicating that the Respondent's motivation for the discharge of Fritts was illegal ; that is, that it seized upon his unlawful conduct as a pretext for his discharge Employee Garrett testified that Foreman Mallonee observed during the Union's campaign that "he would fight the union because we didn't need it " Employee Rutledge also testified that Mallonee told him and other employees that Mallonee "couldn't see how the union would help us any." Mallonce admitted that he talked to nearly all of the em- ployees on his shift about the Union and told them "That I was only interested in the things that would benefit the men that I worked with, that I didn't think that the union could give us anything that we couldn't go in and get ourselves by going to Mr Kraemer, and I didn't see the point in paying dues to the union when you could get those things for yourself if you were willing to stand up and speak for yourself " He denied that he ever- asked any employee whether he belonged to the Union or told any employee that his em- ployment would be terminated if be joined the Union. He also testified that he could not recall making the statement to the effect that he would fight the union because the men, didn't need it However, be admitted asking employees bow they "felt" about the Union. As to these conversations , the undersigned credits the testimony of Rutledge and Mallonee and is of the opinion that Garrett did not accurately quote Mallonee 's statements. The undersigned finds that Mallonee's statements were privileged except for his inquiries as to. TENNESSEE COACH COMPANY 3. James M. Baker 725 . On July 6, 1943, Baker commenced his employment with the Respondent as .a mechanic at 85 cents an hour at its Sevier Avenue garage. After 2 years he was transferred to the Respondent's Kentucky Street garage where he remained .3 or 4 months He returned to the Sevier Avenue garage for a short time and then transferred to the Respondent's main motor shop where he worked for approximately 2 years. About September or October 1947, he was assigned to service line work, checking and inspecting buses, at the Sevier Avenue garage. At the time of his discharge in November 1947, he received $1.25 an hour, the top rate for mechanics. On September 3, 1947, Baker joined the Union. Previous to his employment by the Respondent, he had belonged to locals of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F. L. and of the International Union of Operating Engineers, A. F. L. His membership in such organizations was known to the Respondent throughout his employment. In mid-September 1947, the membership of the Union elected Baker to the position of secretary-treasurer. In addition to his official duties, he distributed application cards for membership in the Union and discussed the Union with employees during non-working hours. He was one of the charter members of the Union. Baker testified that on September 24, 1947, Al Kraemer, president and general manager of the Respondent, entered the motor room, where Baker was then employed, and asked employee Elmer Spangelo, who was working about 20 feet from Baker, "if there were any union men in the house." Spangelo replied, "Holy Jesus, there might be one or two." Thereupon, according to Baker, Krae- mer "turned directly and walked to me and asked me what I had against him or the company . . . I told him I didn't have anything against him . . . He asked me what the union could give me that he or Don Galbraith [foreman over Baker] couldn't give me . . . I told him I didn't know, that was to be seen . . . He said he wanted me to know that he was Catholic, that he could hire all Catholic if he was so minded to." Baker testified that at the time this conversation occurred, there were 7 other employees working in the motor room, although Galbraith was temporarily absent. None of these employees testified as to this incident. Kraemer testified that he might have asked the query, "Is there a union man in the house" in jest, similar to the ancient jocular question, "Is there a doctor in the house," although he did not definitely recall whether he had made the query or not As to the remainder of Baker's testimony in respect to this conversa- tion, Kraemer, in effect, denied making the statements attributed to him by Baker, testifying "Oh, that one-that had no place here, and I wouldn't have made that statement. I think I am a bigger man than that." In addition, Kraemer testified that since he has been in charge of the respondent's operations, he had how employees "felt" about the Union Such inquiries constituted interference, restraint, and coercion with the rights guaranteed by Section 7 of the Act. Although these inquiries of Mallonee were violative of the Act and although Davis and Mitchell also engaged in similar conduct, the undersigned does not deem such conduct to establish by a preponder- ance of the evidence that the Respondent was illegally motivated in its discharge of Fritts. As a matter of fact, Carl Hoinei's testimony indicates that lie notified Mallonee of Fritts' threats about the time Fritts damaged a bus at work in November. Thus, the Respondent at that time had knowledge of Fritts' union membership and activities and if it were searching for a pretext to discharge him, it seems likely that it would have seized upon the bus accident as a pretext to discharge Fritts. Cf. Matter of Consumers Cooperative :Refinery Association, 77 N. L. R. B. 528. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructed "all my departments, [to] be fair to everybody on matters pertaining to religious, political, and any other affiliated life, and unions." He also stated that during the Union's campaign he had instructed his supervisors "to be abso- lutely neutral, not make any statements one way or the other. Let the men make their own choice." 22 He further testified that a number of years ago Baker had informed him of Baker's union affiliations and that he played no part in the decision to discharge Baker, Fritts, or Arwood. Upon the entire record, including the undersigned's observation of the wit- nesses and the fact that it seems highly improbable that Kraemer would himself utter statements which he had forbidden his supervisors to make, the under- signed does not credit Baker's testimony to the effect that Kreamer asked him what he had against the company and what the Union could obtain for him that Kraemer or Galbraith could not and also Wade the veiled threat of economic reprisal by stating that Kraemer could hire all Catholic employees if he so desired. Kraemer is credited on this issue and it is found that the colloquy as testified to by Baker did not occur. The undersigned finds that Kraemer did not ask the question, "Is there a union man in the house?" or words to that effect, but that the query was made in jest and did not constitute unwarranted interfer- ence, restraint, or coercion with the rights of the employees. Baker testified that during non-working hours, he had been a close personal friend of Superintendent Davis for about four and a half years and that in con- versations at Davis' home, Davis had frequently told him that "the Communists were slipping in on the United States and unions were unfair" and that on one occasion in late September or early October 1947, asked, "How is the union getting along?" Baker further testified that about October 20, 1947, Davis called Baker to the former's office after work and said, "Give me $2." When Baker asked, "What do you want $2 for?" Davis replied, "You might as well give me $2 as you gave that union man $2." Davis then asked Baker to name the employees who belonged to the Union but Baker refused to divulge this information.22 Baker testified that on November 4, 1947, the morning after Baker, Butler, and Terry had conferred with Davis at the latter's home with respect to the reinstate- ment of Arwood, as set forth above, Davis came to Baker and said, "I'm going to get you . . You didn't tell me who you were going to bring to the house" last night Baker replied, "You didn't ask me," and walked away. Again, testimony as to an isolated conversation between Davis and the witness was impossible of corroboration. As previously stated, the undersigned is extremely reluctant to credit such testimony, particularly when given by a wit- ness whose interest in the proceeding was as vital as Baker's and whose testimony as to other incidents was found not entitled to credence. Even if this testimony be credited, the undersigned does not believe that the circum- stances of the conversation, Davis' inability to testify, as well as the demeanor and credibility of Baker as a whole, would justify the undesigned in making n Several officials and supervisors of the Respondent corroborated Kraemer's testimony as to the Respondent's neutrality policy in respect to employees' religious, political, and union views and activities 23 Although the undersigned has not credited other portions of Baker's testimony and although there «as no direct corroboration of these conversations, Baker's testimony that Davis inquired as to the identity of employees who were members of the Union is buttressed by the testimony of other employees who testified that Davis made similar inquiries of them The undersigned is persuaded that Davis did make these inquiries and accordingly credits Baker's testimony in that regard. It is found that by Davis' inquiring as to the iden- tity of union members , the Respondent unlawfully interfered with, restrained , and coerced Its employees in the rights guaranteed by Section 7 of the Act TENNESSEE COACH COMPANY 727 the inferences for which this testimony was apparently offered by the General Counsel, that is, that Davis' purported statements contained an implied threat of reprisal which (1) was violative of Section 8 (a) (1) of the Act and (2) was indicative of an illegal motive bearing upon the subsequent discharge of Baker. Upon the entire record, the undersigned finds no credence in this testimony. Baker testified that in October 1947, he had the following conversation about the Union with the Assistant Superintendent Mitchell during work hours : I was servicing an Aerocoach over on the line, and he came over and asked me how they were getting along, and I told him I would rather not talk about it on the job, not supposed to. He said, "all right, go ahead . . . just you and I . . . Nobody else will know it." He asked me how they were getting along. I told him that if it went ahead like it was that it would go in for 90 percent, that I were in a position to know . . . He said that he hated to see it go through, ... that if he did . . . Al [Kraemer] would sell out to big Greyhound and it would ruin them . . . Said the unions were crooked. Baker also testified that on the same day after work Mitchell came to a service station where Baker was repairing his car and that Mitchell reiterated the re- marks he had made earlier in the day at work. Employee Charles E. Garrett testified that he had the following conversation with Superintendent Mitchell in November 1947, a week or two before the elec- tion : ... Then he asked me about the union. Asked me if I belonged. I told him I had paid my $2, and had a receipt. Then he said, "Well, this is a free country." But he said, we didn't need the union and if the union went through that Mr. Kraemer would sell out to Southeastern Greyhound, he would load his tools up and leave . . . Asked me if my brother [belonged to the Union] and I told him I didn't know. Employee J. E. Rutledge also credibly testified that during working hours Assistant Superintendent Mitchell "asked me how I felt about the union, and I told him I was for anything that was for the good of the men. He said he was, too ; didn't see how that could help us any." According to the undenied and credible testimony of Employee Cyril Payne, Mitchell asked, "What you think brought this union on?" Mitchell admitted that a conversation occurred with Baker during working •hours in which Baker brought up the subject of the Union and thereupon Mitchell "asked Mr. Baker what he thought about the vote on the union and he told me that it would go 97 percent, and that's all that was said." He denied that he told Baker or Garrett that Kraemer would sell out to the Greyhound Lines if the Union won the election and stated that he did not recall making any statement to Baker to the effect that unions were dishonest or "crooked." As to the conver- sation with Baker at the filling station, Mitchell insisted that the subject matter was confined to a discussion of the repairs needed on Baker's car and that the Union was not mentioned. Mitchell did not specifically deny that he asked Garret about his and his brother's union membership, although Mitchell stated that he never "directly" or "in them words" asked an employee whether he belonged to the Union or how he felt about the Union. Inasmuch as Mitchell admitted that he indirectly questioned employees respecting their union affilia- tion, as the testimony of both Baker and Garrett was mutually corroborative in respect to Mitchell's inquiries as to their union membership and to Mitchell's 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement that Kraemer would sell the bus line to the Greyhound Lines if the Union succeeded in its company , and as Garrett especially impressed the under- signed as a credible witness, the undersigned finds that Mitchell made the state- ments attributed to him by Garrett and Baker. The undersigned further finds that by inquiries as to the union affiliation and sympathies of employees and as to the reasons for, and the progress of, the Union 's organizational campaign among the employees and by Mitchell 's threats that the business of the Respondent would be sold in the event the Union won the election, the Respondent unlawfully inter- fered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 24 Baker testified on direct examination by the General Counsel that he had the following conversation with Davis shortly after employee C. E. Dykes was dis- charged on November 8, 1947: A. [Davis] came out..... where I was servicing a bus by the drivers' room and asked me. if ,my hands were clean. .And I said, "Who in the hell could keep their hands clean and work on these buses ?" He looked at them and says, "They are not too dirty." He says, "Come on in the office," and got me by the arm and took me in the office . Pulled out a desk drawer and said, "Do you know that fellow ?" And I said, "I sure do." And said, "Would you believe that on him?" And I said, "I didn't know nothing about it." Q. Now what are you talking about? A. It was a criminal record on C. E. Dykes, that he dug out back in 1927. Q. Tell me what else happened at this time. A. I told him that I wouldn't uphold for no one in the wrong . . . And when I found them crooked, I would step out of it. Q. Do you remember anything else Mr. Davis said in the office there? A. No, sir. I went on back to work. Q. Do you recall any reference in his office to dirty hands? A. No. -It was about, as I recall, it was-he said , "You think things is going dirty now ; it will go dirtier than that between now and the election." Once again no corroboration of Baker's testimony was possible since the alleged conversation occurred between him and Davis alone. The statement attributed to Davis in this conversation, as in the previously discussed and discredited testimony of Baker, are not per se violative of the Act and would be repugnant to the Act and material in the consideration of the reasons for Baker's subsequent discharge only if an inference were made from the last' above-quoted question and answer that Davis-thereby impliedly uttered a threat of economic coercion and impliedly voiced an illegal motivation for Baker's subsequent discharge. For the reasons heretofore fully stated, the undersigned does not feel that the circumstances and the testimony would warrant the drawing of such an -inference , even if Baker were credited. In view of these factors, and upon the entire record, the undersigned accords no credence to the testimony of Baker set forth in the preceding paragraph. As previously mentioned , Baker worked in the fall- of 194 '7 on the service line in the Respondent's Sevier Avenue garage. His work consisted of checking buses as they came in from their regular scheduled routes, with the assistance of a helper, for mechanical failures such as brakes, generators , tires, lights, 24 See Matter of Magnolia Cotton Hill Co., 79 N. L. R B. 91 ; Matter of William Spencer, 76 N. L. R B 514. TENNESSEE COACH COMPANY 729 drive shafts, et cetera. Repairs which might be made briefly were performed on the service line, but if the inspection revealed that time-consuming repairs were necessary, the bus was marked with a ticket listing the repairs needed and placed in another line where other repairmen performed such work. Because of the nature of the Respondent's business, a common carrier of passengers for hire, the work of the inspection line was a most important factor to assure the maximum safety of the operations of the bus line. On October 24, 1947, Bus 203, of a type known as Aerocoach , broke down on the road en route to Mascot, Tennessee, about 15 minutes after leaving the Knoxville terminal, because of loose drive-shaft bolts. The passengers of Bus 203 were transferred to another bus and Bus 203 was repaired on the road. Foreman Lovell investigated the matter and discovered that during the morning before the breakdown, the bus had been inspected on the service line operated by Baker and his assistant, Charles Keith. According to Lovell, he asked Keith whether he or Baker had inspected the drive-shaft bolts of Bus 203, and Keith replied that "Baker was the one, and Baker didn't deny it when" Lovell "asked him about it." Lovell further testified that he spoke to Baker about the break- down and "told him about what happened," and "told him he would have to be more particular with his work." Baker could not recall the breakdown of Bus 203 and denied that he had any conversation with Lovell in respect thereto. He admitted, however, that he and Keith inspected all Aerocoaches on their shift. Keith testified that he could not recall having been informed that the defective repair in the drive-shaft of any bus resulted in its breakdown and denied that Lovell had ever told him that the bus on the Mascot run had been improperly inspected. Lovell's testimony was corroborated by that of James E. Pryor, general traffic manager of the Respondent, who testified in respect to documentary records of the Respondent pertaining to the operation of Bus 203. Inasmuch as the breakdown caused serious inconvenience to the Respondent's operations, necessi- tating a transfer of passengers to another bus shortly after the commencement of their journey, it seems highly probable that the Respondent would have investigated the cause for the breakdown and determined the responsibility for the operational failure on the road. In view of this circumstance, as well as his observation of the witnesses, the undersigned credits the testimony of Lovell and Pryor with respect.to the breakdown of Bus 203 and the resulting investiga- tion and censure of Baker for failing to inspect the bus properly. The testimony of Baker and Keith is not credited in respect to this issue. About November 10 or 11, Baker and Organizer Terry conferred with repre- sentatives of the Respondent and a field examiner of the Board with respect to the consent election. When the field examiner left at the conclusion of the conference in respect to the representation proceeding, the representatives of the Respondent and the Union discussed the possibility of reinstating Arwood, Fritts, and Dykes. The Respondent declined to reinstate them." u About December 1, 1947, after Baker's discharge, another conference in respect to the consent election was held by representatives of the Board , the Respondent, and the Union in the offices of the Respondent 's counsel . Terry and Baker appeared in behalf of the Union , but the Respondent 's representatives would not permit Baker to enter the conference room because he had been discharged and, according to Pryor, "as far as we are concerned he did not represent the employees as he was not an employee of the Respondent." The allegations of the complaint as to the Respondent's acts of interfer- ence, restraint, and coercion with the rights of its employees were very specific and none of such allegations relate to this incident Inasmuch as the complaint did not allege that Baker's exclusion from the conference was an unfair labor practice , it is not found that Baker's exclusion was violative of the Act. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of November 21, 1947, Bus 227 came to the service line on which Baker and Keith worked, at its regular hour, marked with a ticket noting that its generator was not working properly. Baker and Keith checked its operation with the use of a voltage tester, which indicated that the generator was in working order. They made no further inspection of the generator and sent the bus out on its regular run. Upon the entire record, the credible testi- mony of various supervisors and employees shows that the inspection by Baker -was perfunctory and not complete, the vice in the use of the voltage tester being that it would not indicate that the generator belt was slipping unless the motor of the bus were raced. Employee Charles E. Garrett, a witness for the General Counsel, testified on cross-examination that if he were working on a, bus whose generator was reported to be defective, "`the first thing I would-do would be to check the generator belt. Then I would check the fuse to the generator. Then I would go to the generator wiring and post generator." The undersigned con- eludes that Baker did not make an efficient and exhaustive check of the generator of Bus 227 on November 21, 1947.4° On the following morning, the driver of Bus 227 complained to Foreman Lovell, according to the latter's credible testimony, that the driver had "reported [the defective generator] the day before and now the battery was dead and wanted to see what was wrong." Lovell checked the generator and found the drive belt so loose that it would not turn the generator. Lovell called Baker's attention to the fact that the drive belt was loose and needed adjusting and that the battery would have to be changed. According to Lovell's uncontroverted credible testimony, Baker muttered an, indistinct curse, when the necessary repairs on Bus 227 were indicated, and `,swelled up and walked away " There- upon Baker attempted to remove the°battery without assistance2T According to his credible testimony, "The battery had no handles on it, and had acid and grease all over it, and when I started with it, it wrenched my back and I dropped it on the floor and burst it." The battery of Bus 227 was located in a recessed compartment in the rear of the bus and was about 36 inches from the ground. The battery, which had no handles, was about 20 inches long and about 9 or 10 inches wide and high, and had a minimum of clearance between the top of the battery compartment and the superstructure of the bus. The battery weighed approximately 150 pounds and when new had a value of about $65. m According to Lovell and Keith , this bus was on a short run between Knoxville and Oak Ridge , Tennessee, making two round trips between those points each day. It regularly passed through the service line at the Sevier Avenue garage in Knoxville in the morning and again in the late afternoon or early evening. Baker's testimony that the bus passed through the Knoxville inspection line three times daily, once each shift, is not credited In making the conclusion that Baker' s inspection of Bus 227 was in- efficient on November 21 and in evaluating that conclusion in respect to the events of the succeeding day, the undersigned has considered the fact' that the bus in question passed through the inspection line a second time after Baker's inspection on the ' morning of November 21 The record does not conclusively show that the second trip through the inspection line occurred on the shift of Baker Although the General Counsel may argue that the defective generator should have been corrected on the second trip through the inspection line on November 21, the undersigned is persuaded that there is no merit in such a theory inasmuch as there is no showing that on the second trip that the generator was marked as defective. Since the generator had been inspected by Baker and passed as all right , the driver would have assumed that the defects had been remedied and would not have again , on November 21, marked the bus for particular inspection until the battery became "dead" as it did on the following morning. 27 Keith, who was Arwood 's assistant, had left the scene earlier to obtain a charged battery. TENNESSEE COACH COMPANY 731 As noted previously, the Respondent apparently had no written shop rules, and again there is a conflict in the testimony as to the existence of a working rule-that is, whether there existed a rule that batteries should be removed from buses by two men and not by an employee alone. Baker and Arwood testi- fied that no such rule existed, that they were never instructed to have assistance in removing batteries from buses, and that they commonly performed the task alone, both in the garage and on special assignments to repair buses stalled on the highway. Employee Willie A. Smith also testified that he had removed bat- teries from buses without assistance but that usually two employees effect the removal of batteries. Keith testified that he knew of no rule requiring two men to take batteries out of buses, that he had removed them by himself, and that he had never been instructed not to do so. He admitted, however, that in chang- ing batteries, "most of the time two men does it " Payne testified that he knew of no two-man rule in respect to shifting batteries and had never been instructed not to remove them without assistance, but he admitted that he never attempted to remove a battery alone and that assistance could always be had from fellow employees in performing the task. Employee J. E. Rutledge testified that usually two employees effected the shift in batteries and that he would not attempt to change one without assistance "unless it was an absolute emergency." Garrett testified that the two-man rule in removing batteries was "a'rule mostly of the men," that he had removed them without assistance on the road, and that he bad not been instructed by his supervisors not to do so 48 Supervisors Mallonee, Mitchell, and Lo\ell each insisted that employees had been instructed not to attempt to remove a battery without assistance. When a mechanic was sent out to change a battery in a bus stalled on the highway, it appears that the driver would generally lend assistance. If the driver were not with the bits, the mechanic was authorized to employ help and the Respondent would reimburse him for the expense. If no help were available, the shift could be effected with minimum effort by placing the rear of the service truck in line with the battery compartment and then making the exchange of batteries. Upon the entire record and the testimony in respect to the two-man rule, sum- `marized above, the undersigned is of the opinion and finds that the preponderance of the credible evidence establishes the existence of a working rule of the Respondent prohiJjiting a single employee from removing a battery from a bus without assistance except in emergency situations on road assignments. Indeed, the reason for such a rule is well demonstrated by Baker's experience, that is, the weight of the battery wrenched his back and he dropped the battery. As a consequence, he suffered a physical injury, which required medical treatment, and the Respondent suffered a property damage. Shortly thereafter Baker was summoned to Superintendent Davis' office. Baker testified on direct examination that the following conversation ensued : A. . . . Tom said, "How come you to jerk that battery out of the bus and burst it? .. . Weren't you mad?" And I said, "No, sir, I wasn't mad." He said, "How come you to jerk it, the battery, out of the bus and burst it?" And I said, "I didn't jerk it out and burst it. It slid in my hand." The print of it was on my hands where it had slid. He said, "You have been extremely nervous for the last two or three weeks.... I hear your ex-wife up in Illinois is after you for alimony, trying to take you out of the state." 11 The witnesses referred to in this paragraph were all called by the General Counsel. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) I said, "That ain't worrying me. I don't think she can do, it." He said, "I am going to have to let you go." I said, "I will pay you for the battery." I said, "I like- my job all right. I will pay you for the battery." He said, "No, we'll just let-you go on and go." Called in two, company men, Mr. Houk and Mr. Lasher. Q. Mr. who? A. Houk. Q. And Mr. who? A. Lasher. Introduced them to me, and said, "You know Mr. Baker," and', they said, "Yes." He says, "He just jerked a battery out of the bus out here, and burst it." I said, "Why don't you go ahead and tell, them the truth?" I said, "I didn't jerk the battery out of the bus ; it slid out of my hand andi wrenched my back." * * * He said, "I am going to have to let him go ," and Mr. Mitchell, come in ands said, "You know Mr. Baker, don't you? Said "Yes." Said, "Just jerked a- battery out of the bus over there and burst it ; just burst the case wide open," and went on talking, and was going to have to let me go, and went out and, got my time card. And he said, he mentioned in there then that Communists- was slipping in on the United States. And I told him, I said, "Tom, there used to be a man sitting in the chair where you are sitting." I said, "There isn't now." He said, "You want to get personal about it," and my-got me- out of the Army or out of the Navy. Q. Deferment? A. Deferments. That was brought up. They wanted to know who got me- them, and I said, "Mr. Mike Kraemer." Mr. Lasher said, "I don't guess I had anything to do with it." I said, "You had orders to do that." On cross-examination Baker testified that Davis made the statement about Communists coming into the United States prior to the time Houk and Lasher entered Davis' office. W. H. Houk, employed in the Respondent's traffic department, testified on direct examination by the Respondent, that on the morning of November 22, 1947, he was conferring with Traffic Manager Pryor in the latter's office, and that the following occurred : . . . it is glass out in the shop ; you can see into the shop from Mr. Pryor's office. This morning I was in Mr. Pryor's office, and of course, the commo- tion outside and I looked up and I saw Mr. Davis and Mr. Baker approaching Mr. Davis' office. Saw Mr. Davis was in front and Mr. Baker following, and' I looked back and was talking to Mr. Pryor about something, and looked, back and then Mr. Davis came over and pecked on the window and motioned, for me to come to his office. I did. So when I arrived in Mr. Davis' office, Mr. Davis . . . said, "Baker, I don't know what's wrong with you. . . The- last several months your work has not been satisfactory. You seem indiffer- ent to work, you just don't care, and I would like to know what's troubling you. . . . Is it your matrimonial trouble or is it heavy drinking?" Mr Baker replied, "I haven't had a drink in nine months." Said, "Is it your matrimonial trouble? ... I believe your wife is trying to have you extradited to Illinois." Of course, Mr. Baker became very angry, and he said, "Those sons-of-bitches will never get" him back to Illinois , said he had an attorney friend who. TENNESSEE COACH COMPANY 733 knew the governor who would see to it-he wasn't extradited, and he said he would see both his wife and children in hell before he would give them a dime. Q. Is that the language he used that morning? A. That's the words he used. Of course, he was very angry. And after his anger had subsided, Mr. Davis said, "What about bus 227? ... Did you work on that yesterday?" He [Baker] said, "I did." - He [Davis] said, "Well, didn't check the generator drive belt." And Baker . . . said he checked the generator, said made some minor repair to the generator, and he thought it would be all right. And he [Davis] said, "Well, about what on these previous occasions? .. . The last three or four weeks I have had breakdowns, gone off the inspection line where you have been working . . . I am responsible for that . . . Also this bus here had gone out on a trip and the battery gone down and whole bus load of passengers, might have been killed the whole load. That would reflect directly on me . . . I can't inspect each one of these buses individ- ually . . . I have to have men under me to depend on and do these things What happened over there? Did you get mad and jerk the battery out?" And Baker I believe said, "No." He [Davis] said, "Didn't you get mad because Lovell had to come over there and show you what was wrong with that?" Then there was some talk, and he [Davis] said ... "Several occasions had to let you off to a nervous condition or due to something ; I don't know what is troubling you, whether it is your matrimonial or something troubling you . . . In view of that fact, I can't assume the responsibility for the work you are doing. I am under a high duty to Mr. Kraemer and my boss to see that this is done, and I am going to see that it is done . . . In view of these facts, I will just have to discharge you and let you go." After making that statement, he went out and brought in Mr. Baker's time card, and'after he walked to the paymaster and gave it to him. I stayed in there for some time after that, carried on a conversation, and Mr. Davis came back, went out in the shop and then I believe at that time Mr. Mitchell or someone came in, but Davis had already come back and I was called inside, and when I came back Mr. Baker was gone. Later in his testimony, Houk stated : ... On this-I would like to get back to Mr. Baker. Mr. Davis asked him- this battery, asked if he didn't know he was supposed to use two men on it and didn't have a man that he could use, and Baker said he did, there was a man he • had, a helper, supposed to use. And Davis said, "I have always instructed everyone to use two men on that." Houk impressed the undersigned as an especially forthright and credible wit- ness, coherent and detailed as to the statements in the colloquy between Davis and Baker. The failure of Bus 203 in October after inspection by Baker and the inefficient inspection of Bus 227 on November 21, lend credence to the details of Houk's version of the conversation. In addition, Baker's version is not in substantial conflict with that of Houk except as to the statement attributed to Davis in respect to Communists "slipping in on the United States," and the, matter of Baker's deferments from military service during the war period 853336-50-vol. 84-50 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However; as previously shown, Baker's testimony was self-contradictory on the statement of Davis regarding the communists . His testimony on direct exami- nation indicates rather positively by the words, "he mentioned in there then" that the remark about the Communists was made after Mitchell entered Davis' office and was immediately followed by a discussion, in which Losher partici- pated, of Baker 's deferments from military service. On cross-examination, how- ever, he testified that the remark was made while Davis and Baker were alone in the office, before Houk and Losher came in. In view of the self-contradictory character of Baker's testimony in respect to this statement, as well as all the circumstances of the case , the undersigned is unable to credit Baker's testimony respecting Davis' remark about Communists. - Upon ,the entire record, as' well as the undersigned's observation of the witnesses, it is found that the conversa- tion between Davis and Baker occurred as testified to by Houk. The General Counsel apparently contends, in reliance upon the statements attributed to Kraemer and Davis by Baker, that the Respondent seized upon the incident wherein Baker broke the battery as a pretext to camouflage its desire to rid itself of Baker because of his Union membership and activities It is con- ceded that Baker's membership in the Union and his activities in behalf of the Union were well known to the Respondent ; in fact, the Respondent had known of Baker's sympathies in the field of organized labor ever since he had entered its employ. Despite this fact, the undersigned is of the opinion that the credible evidence does not support the complaint's allegations that Baker was discrimi- natorily discharged. As previously detailed, the under signed has not credited Baker's testimony from which the General Counsel would apparently infer the Respondent's illegal motivation in the discharge of Baker. Although it has been found that Davis and Mitchell made inquiries and statements violative of the Act, the undersigned finds such conduct to be insufficient to establish an illegal moti- vation on the part of the Respondent for the discharge of Baker. The undersigned is of the opinion that the facts heretofore found support the Respondent's contention as to the reasons for Baker's discharge. Briefly, the undersigned has found that in October a bus inspected by Baker broke down on the road because of'loose drive-shaft bolts, a condition which Baker's inspection should have remedied . Following this break-down, Baker was warned to be more particular about his work. However, on November he inefficiently inspected the generator of a bus and when, on the following day, the same bus came to the service line with the same defect and with a "dead" battery, Baker attempted to remove the battery without assistance, in violation of a working rule of the Respondent, and broke the battery when it slipped from his fingers. Upon the -entire record, the undersigned concludes and finds that Baker was discharged for just and sufficient cause and that the Respondent has not violated the Act by discharging him.29 "According to Baker , at the time of hie 'discharge he left in his locker in the ' dtessing room a number of books, including a personal diary, and when he returned after his dis- charge to obtain the books , Davis brought out all of the books except the diary and said, "You got what you want; get the hell out of here .. . I know all about you now " Baker testified that the diary covered events in the year 1946 and contained no entries for the year 1947 Inasmuch as Baker joined the Union on September 3, 1947 , and his activities in the Union occurred thereafter, obviously the diary could have contained no reference to such membership and activities. Therefore , this testimony , even if credited, would have no direct bearing upon Baker 's discharge The undersigned accordingly finds it unneces- sary to determine whether Davis made the uncorroborated statements attributed to him by Baker TENNESSEE COACH COMPANY C. Alleged interference, restraint, and coercion 1. Surveillance 735 As heretofore mentioned, the complaint alleged that the Respondent had inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act by "keeping union meetings under surveillance." On November 5, 1947, the Union held a meeting for the Respondent's mainte- nance employees at the Hotel Farragut, one of Knoxville's largest hotels located in the heart of the city at Gay and Clinch Streets. Between 25 and 30 mainte- nance employees of the Respondent attended the meeting. When the meeting adjourned around 9 p. m., Organizer Terry and several employees saw,'Chief Dispatcher Lowry, who was in charge of the Respondent's drivers but whose supervision duties did not extend to the maintenance employees, standing in front of a drug store some 50 or 75 feet from the main entrance of the hotel. Both the drug store and the hotel were on the same side of Gay Street but with Clinch Street intervening. The drug store adjoined the largest motion picture theatre in Knoxville. Organizer Terry testified that he spoke to Lowry and "asked him what he was doing there . . . his answer to that was, if I remember correctly, was he was waiting on his wife." Employee Baker testified that he and Arwood went to the drug store after the meeting and met Lowry at the entrance of the drug store, and that the following conversation ensued with Lowry : 'I asked him how much Big Al Kraemer was paying him to stand'-there and he tried to make excuse that his wife was in the show, and finally admitted that he didn't know nothing about the meeting until 7 o'clock that night. Q. What did he say, Mr. Baker? A. He . . . asked us how we were getting along in our meeting. I said, "You can go ahead and tell Johnnie Hammond when you get back that he is doing us good, that he got us two new members tonight." Q. You say that Mr. Lowry admitted that he hadn't heard anything about the meeting until 7 o'clock that night? A. That's right. Q. Did he say what he was doing there in front of the drug store? A. Tried to say his wife was in the show. Q. Did he give any other reason? A. No, Sir. In regard to this meeting and conversation, Arwood gave the following testimony : Well, I asked him why he didn't come up to the meeting. He-said he -was just standing there waiting to see `who he could see . . Baker 'says, "Did Al pay you to come up here?" Said, "No," says, "Al didn't say anything to me about coming up here. One of the drivers said having a meeting, and I thought I would walk up here." That was about all that was said. I left him standing there. Lowry denied that he had any knowledge that the Union was holding a meeting that evening at the Hotel Farragut and testified that pursuant to a weekly cus- tom, he had brought his family to the Tennessee Theatre about 7 p. in. on Novem- 736 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD ber 5, that while they attended the theatre, he went to his office, that he returned around 9 p. in. to meet them, and that he had just emerged from the drug store, where he bought a cigar, when he met Terry and Baker and other employees Lowry testified that the following colloquy ensued : "Mr. Baker started a conversation. He made some remark . . . I don't re- member just what he did say, but he made some remark about "Al's watching us." . . . at that time I didn't say anything. There was two or three others walked up. Q Was Arwood among them? A. Arwood walked up shortly after Baker did . . . I don't recall of Arwood saying anything at the time. Baker, the next thing he said tome was what I thought of their set-up. And I said, "What do you mean?" He says, "I mean our union we are organizing." I said, "Mr. Baker .. . I have nothing to do with shop force or mechanics in any way, and that's up to you fellows what you do; that's your business, none of mine." After that-Mr Terry walked up. There was two or three words spoken. I don't remember. He spoke to me. And I am almost positive that Mr. Terry didn't ask me why I didn't come up to their meeting. Q. Asked why you didn't come up to the meeting? A. I am pretty sure that was what Mr. Terry asked me. My answer was that I didn't have an invitation. Q. Did any . . . of them ask you what you were doing there?,: A. I don't recall any of them asking me what I was doing there. They asked me to have a Coca-Cola with them, and I explained that I was waiting on my family. As heretofore noted, the undersigned has found Arwood's and Baker's testi- inony not entitled to credence in certain instances. Upon the entire record and from his observation of the witnesses, the undersigned credits the testimony of Lowry and Terry and finds that the conversations occurred substantially as testified to by them and that Lowry was at the theatre to meet h]s family. On the same evening after the union meeting adjourned, some members who had attended the meeting noticed Superintendent Davis and his wife drive by the hotel. No other evidence was adduced by the General Counsel in support of the surveillance allegation of the complaint. The undersigned concludes and finds that the Respondent has not engaged in. surveillance of union meetings so 2. Circulation of petition by opponents of the Union About the first of November 1947, during the Union's organizational campaign, employee Johnnie Hammond, a bus driver of the Respondent's enlisted the aid of a local attorney to execute a petition to be circulated in opposition to the Union. The attorney, who had never served as counsel for the Respondent or for the so Baker testified that on occasions when the Union had scheduled union meetings, Super- intendent Davis had come to the shop and told the employees "Union meeting tonight, don't fail me, be there." Employee Cyril Payne also testified that on one occasion Davis said "There was going to be a union meeting but he laughed and just said it in a joking way " Even if this testimony be credited, the undersigned finds that the statements were made in jest and do not constitute any probative evidence on the surveillance issue. TENNESSEE COACH COMPANY 737 Knoxville Transit Lines owned by the Respondent, drew up four copies of a petition, which bore the following legend : We, the undersigned employees of Tennessee Coach Company hereby express our satisfaction with the past record of our employer in showing its desire and its ability to take care of our welfare, and our belief that our interests will be better taken care of if we can negotiate individually with our employer rather than with any Union and we here and now re-affirm our faith in said employer and express our desire not to join any union and our belief that our best interest will be served if we continue the practice of the past by leaving our interests directly in the hands of the Management rather than in the hands of some stranger or some Union : Hammond circulated one copy of the petition. Howard Horner n sought signatures to a second copy 32 whereas the two other copies were circulated by employees at the Respondent's operations at Rockwood and Bristol, Tennessee. It is clear that the petitions were openly circulated during working hours and that the Respondent had knowledge of the petitions and their circulation" After the election, Hammond gave the petitions to President Kraemer, who refused to accept them. The complaint alleged that the Respondent violated the Act by "condoning, permitting, encouraging, and participating in the circulation of anti-union peti- tions." The undersigned is of the opinioa that the preponderance of the evidence does not support this allegation of the complaint or, in any event, demonstrate that the circulation of the petitions was violative of the. Act. There is no -evidence connecting the Respondent with the formation of the petitions or with active participation in their circulation.34 Although the Respondent was aware of the petitions and their circulation, the undersigned is not persuaded upon the entire record that the evidence establishes that the Respondent treated the Union discriminatorily in its organizational efforts as contrasted with the circulation of the petitions by the opponents of the Union. Organizer Terry's testimony shows that he was permitted access to the Respondent's shops and 11 Howard' Horner was also referred to in the record as Red Horner. He was a non- supervisory employee. 32 This finding is based upon the credible testimony of employees Hammond and Garrett. Baker testified that he observed Relief Foreman H C Horner circulate something which other employees said was a petition. There, were five members of the Horner family in the Respondent's employ. The undersigned places no credence in Baker's testimony. 83 Thus, Foreman Mallonee testified that Hammond showed him the petitions before and after they were circulated and that Mallonee saw Hammond circulate the petition among the employees on Mallonee's shift. Hammond's denial that he ever showed the petitions to Mallonee is not credited. 34 The complaint alleged, in effect that the activities of Hammond were attributable to the Respondent The record contains no probative evidence to support this allegation. As mentioned aho 'e, Hammond was a bus driver and was not a supervisory employee. The complaint also alleged that H. C Horner was a foreman and that the Respondent was responsible for his activities H. C Horner was a relief foreman and his name appears among the signatures appended to one of the petitions. Relief foremen assume the duties of regular foremen one day a week and during the absences of the regular foremen. At other times relief foremen perform the work of non-supervisory em- ployees. The record does not clearly reveal the extent of their supervisor status, if any. -or their wage scale. At least one relief foreman was a member of the Union. Upon the -entire record, the undersigned is of the opinion that the preponderance of the evidence -does not establish their supervisory status. Cf Matter of Ironton Fire Brick Co., '76 N L R. B 764 ; Matter of American Rolling Mill Company, 73 N. L. R. B. 617. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . terminals without restraint for organizational purposes, that he rode buses and sought to enlist the membership of the drivers, and that be talked to other employees during working hours about the Union." In other words, the Respondent permitted both factions to campaign during working hours.` Upon the entire record, the undersigned. finds no probative evidence that the Respondent encouraged or participated in the circulation of the petitions in violation of the Act." 3. Dismissal of superintendent almost resulting from progress of the Union The complaint alleged that the Respondent had violated the Act by statements of certain officers and supervisors to employees to the effect that the progress of the Union had almost caused the dismissal of the superintendent because the latter had not put a stop to such activities. The only testimony elicited by the General Counsel in this regard was that of employee Keith who testified that about December 7, 1947, Assistant Superintendent Mitchell told Keith that Superintendent Davis wished to see him. In addition Mitchell asked Keith, according to the latter's testimony, "If I thought that I needed someone else to talk for me to the superintendent or to whoever, any of the authorities of the company, and.i told him no, sir, that I didn't think I needed anyone." 33 The next day, Keith met Davis and the following conversation ensued accord- ing to Keith's testimony: I wanted to talk to you about this voting and this union . . . I don't see what the union has got against me . . . The union has got me in trouble with Mr. Kraemer. He thinks that I am not doing my job or the union would never have started. The conversation ended with Davis requesting Keith to vote against the Union in the coming election. As to this request, Keith's testimony was in a sense cor- roborated in part by the testimony of employee Charles Eugene Clabough who testified that about October or early November 1947, Davis asked Clabough if he were a member of the Union and Clabough admitted that he had "signed up for it." Thei ,upon Davis requested that Clabough "go around to the other boys and get them not to vote for [the Union] and he didn't believe we should vote." 35 Dispatcher Lowry, a witness for the Respondent, testified that in early 1947 he noticed Terry talking to "one of' the [drivers] on Track 3" at the Respondent's bus terminal. Lowry requested Terry not to talk to the drivers at the terminal while they were loading and unloading their buses as such conversations interfered with their work. Terry did not testify as to this incident So far as the record shows, this was the only curtailment of the Union's organizational activities during working hours. Under the circumstances, the undersigned is of the opinion that such curtailment was not so un- reasonable as to constitute discrimination between pro-union activities and anti-union activities of employees during working hours 36 As found above, certain statements made by Fritts when he was soliciting the mem- bership of two employees during working hours were the cause of Fritts' discharge. However, it is clear that he was discharged because of his unlawful statements made is connection with the solicitations of membership and not because of the solicitations alone. 37 See Matter of Union Screw Products, 78 N L R B. 1107. 33 Since this statement of Mitchell contains no "threat of reprisal or force or promise of benefit" the undersigned finds that it was not violative of the Act For the same reason, the undersigned finds that a letter sent by Piesident Al Kiaemer to all employees on December 6, 1947, was not violative of the Act TENNESSEE COACH COMPANY 739 As heretofore stated, the undersigned is reluctant to credit uncorroborated testimony attributing unlawful statements to Davis. For the reasons heretofore more fully stated, the undersigned does not credit Keith's testimony that Davis, in effect, told him that Kraemer was'displeased with Davis because the Union had commenced its organizational campaign. It is further found that that allegation of the complaint referred to at the begipning of this section has not been sustainQd by the evidence. In view of the mutual corroboration of Keith's and Clabough's testimony in respect to Davis' requests that they vote against the Union, as well as the fact that the undersigned has heretofore found that Davis inquired as to the union affiliation of employees, the undersigned credits their testimony to the effect that Davis inquired as to Clabough's membership in the Union, urged both of them not to vote for the Union, and requested Clabough to persuade other em- ployees to refrain from voting for the Union The undersigned further finds by such statements of Davis, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 30 4. Threatened withholding of Christmas bonus ,and wage increases, The complaint also alleged that the Respondent violated Section 8 (a) (1) of the Act by "stating, advising and warning that the Christmas bonus would not be paid if the activities on behalf of the Union did not cease" and by "advising, promising and inducing employees to vote against the Union on the promise of receiving a wage increase." No evidence was produced by the General Counsel to support these allegations , which apparently were based upon a change in the payment of the Respondent's Christmas bonus and in its wage adjustment policy necessitated by a decrease in its income and in no way violative of the Act The Respondent customarily adjusted the wage rates of employees annually in July. Having incurred a financial loss in its operations in late 1946 and early 1947, the Respondent was unable to increase its wage rates in July 1947. During that month it filed with the Tennessee Railroad and Public Utilities Commission a petition for an increase in intrastate rates and in December 1947 the Com- mission denied the petition. At the time of the hearing, an appeal was pending from the order of the Commission.40 In respect to the payment of the Christmas bonus, the Respondent had for a period of years customarily given its employees at the holiday season a bonus 30 Clabough further testified that about the first of December 1947, a bus which he was washing slipped off the wash rack and was damaged When he repoited the accident to Davis, Davis stated , in the presence of one of the drivels , according to Clabough , "Well, you see how easy it is for a man to get fired if he belongs to the union ," but he then patted Clabough on the shoulder and said , "That would be all right " Again, there is no cor- roboration for the statements attributed to Davis. For the reasons heretofore given as to similar uncorroborated testimony attributing statements to Davis , as well as the fact that it seems somewhat improbable that Davis would have made such a statement to Cla- bough since Clabough had previously informed Davis of his union membership , the under- signed does not credit Clabough 's testimony as to this conversation with Davis 40 Possibly, the General Counsel relied upon the testimony of employee James C Butler to substantiate the allegations of the complaint in respect to the wage issue. Butler, who was employed as an upholsterer in the body shop, testified that at the request of one of the body-shop employees , Davis addressed the employees of the body shop during the Union's organizational campaign and explained the financial status of the Respondent and the reason for the failure to adjust wages in July 1947 . Davis' statements made no reference to the Union and were clearly privileged ; the undersigned finds that Davis' statements were7notviolative of the Act. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD computed on the basis of $5.00 per month of service for the preceding year. For example, $60 in the case of an employee who had worked the entire year for the Respondent. Inasmuch as no wage adjustments had been made in 1947, the Respondent, in December 1947, determined to increase the Christmas bonus to $90 for each employee with 12 months' prior service with the Respondent .41 The undersigned finds that the allegations of the complaint in respect to the bonus issue and the wage increase issue have not been sustained .42 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the fi ee flow of commerce. V. THE REMEDY It has been found that the Respondent engaged in certain unfair labor prac- tices as alleged in the complaint, in that it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by inquiring as to the reasons for, and the progress of, the Union's organiza- tional campaign, the union sympathies of employees, and the identity of employees who were members of the Union; by threatening to sell its operations to a com- petitor if the Union succeeded in its organizing campaign, and by urging em- ployees to vote against the Union and to persuade their fellow workers to vote against the Union. The undersigned will accordingly recommend that the Respondent cease and desist from engaging in these unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Having found that the complaint's remaining allegations of unfair labor prac- tices on the part of the Respondent have not been sustained by a preponderance 41 As previously mentioned, the Respondent owned and operated the Knoxville Transit Line. The non-supervisory employees of this corporation received a wage increase in 1947. No Christmas bonus was given them in 1947, but supervisors and officials of the Knoxville Transit Line, who did not receive a wage increase in 1947, were given a $90 Christmas bonus. 41 Butler's testimony regarding the circumstances of his resignation from the Respond- ent's employ may have been offered by the General Counsel as evidence pertaining to the bonus-payment allegations of the complaint. Butler entered the Respondent's employ on January 10, 1947, joined the Union on September 4, 1947, and was elected to the position of committeeman by the membership. Prior to the election conducted by the Board in December 1947, Butler informed his foreman, J. C. Boatman, as well as fellow employees of the body shop, that Butler would quit the Respondent's employ if the Union failed to win the election On December 15, 1947, the Monday following the tally of ballots of the elections on December 12 Butler reported to work and asked Boatman to secure an appoint- ment for him with Kraemer. According to Butler, Boatman reported, after telephoning Kraemer, that the latter "had nothing to say to" Butler. Butler asked Boatman again to telephone Kraemer. Boatman complied and, according to Butler, "Came back and said Mr. Kraemer said, `Why don't you be a man and quit?' " Butler then told Boatman "I hate to quit with a possible bonus coming up in a few days." Boatman replied that as far as Butler "was concerned there would be no bonus " Thereupon, Butler said, "Well, in a case like that I will quit." Butler further testified that several months later lie telephoned Kraemer and asked for a job and that Kraemer refused to rehire him, saying, "I am glad you quit . . . It is too late to come whining back to me for a job now." Even if Butler's testimony were credited, the undersigned finds that it does not relate with sufficient definiteness to the specific allegations of the complaint as to the bonus payment to be considered as evidence in support thereof. TENNESSEE COACH COMPANY 741 of the evidence, the undersigned will recommend that these remaining allegations of the complaint be. dismissed. - Upon the basis of the foregoing findings of fact, and upon the entire record- In the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Amalgamated Association of Street, Electric Railway & Motor Coach Em- ployees of America, A. F. L, Local Division 1423, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The-Respondent has not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 (a) (3) of the Act. 5. The Respondent has not engaged in unfair labor practices as alleged in the complaint by "condoning, permitting, encouraging and participating in the cir- culation of anti-union petitions," by "stating, advising, warning and threatening discharge because of activities in support of the Union," by "stating, advising and warning that the Christmas bonus would not be paid if the activities on behalf of the Union did not cease," by "keeping union meetings under surveillance," by "adivising, promising and inducing employees to vote against the Union on the promise of receiving a wage increase," and by "stating and advising that the progress of the Union had almost caused the dismissal of the superintendent be- cause he had not put a stop to such activities " RECOMMENDATIONS . Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Tennessee Coach Company, Knox- ville, Tennessee, its officers, agents, successors, and assigns, shall: 1 Cease and desist from : (a) Interrogating its employees concerning their knowledge of the reasons for, or the progress of, any union organizational activity in its operations ; (b) Interrogating its employees as to their union sympathies and member- ship in Amalgamated Association of Street, Electric Railway & Motor Coach Em- ployees of America, A. F. L, Local Division 1423, or any other labor organiza- tion ; . (c) Threatening to sell its operations if Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, A F. L., Local Division 1423, or any other labor organization, Succeeds in unionizing its employees ; . (d) Urging employees to vote against, and to persuade other employees to vote against, Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, A. F. L., Local Division 1423, or any other labor organiza- tion, in any election conducted by the Board ; (e) In any like manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, A. F. L., Local Division 1423, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to. engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will ef- fectuate the policies of the Act : (a) Post at its operations in Knoxville, Tennessee, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Re- spondent's representative; be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that the complaint, insofar as it alleges that the Respondent discharged James B. Arwood, Homer P. Fritts, and James M. Baker in violation of Section 8 (a) (3) of the Act, be dismissed. It is also recommended that the complaint, insofar as it alleges that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by "condoning, permitting, encouraging and participating in the circulation of anti-union petitions," by "stating, advising, warning and threatening discharge because of activities in support of the Union," by "'stating, advising and warning that the Christmas bonus would not be paid if the activities on behalf of the Union did not cease," by "keeping union meetings under sur- veillance," by "advising, promising and inducing employees to vote against the Union on the promise of receiving a wage increase," and by "stating and advising that the progress of the Union had almost caused the dismissal of the super- intendent because he had not put a stop to such activities," be dismissed. It is further recommended that unless, on or before ten (10) days from the date of the receipt of this Intermediate Report and Recommended Order, Re- spondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or'briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of excep- tions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue TENNESSEE COACH COMPANY 743 orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become' its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 17th day of September 1948. FREDERIC B. PARRIES, 2ND, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 interrogate our employees concerning their knowledge of the reasons for, or the progress of, any union organizational activity in our operations. WE WILL NOT interrogate one employees as to their-union sympathies and membership in AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, A. F L, LOCAL DIVISION 1423, or any other labor organization. WE WILL NOT threaten to sell our operations if AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., LOCAL DIVISION 1423, or any other labor organization, succeeds in unionizing our employees. WE WILL NOT urge our employees to vote against, and to persuade other employees to vote against, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., LOCAL DIVISION 1423, or any other labor organization, in any election conducted by the Board. WE WILL NOT in any like 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 AMALGAMATED ASSOCIATION OF STREET, ELEC- TRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., LOCAL DIVISION 1423, 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, as guaranteed in Section 7 of the Act. TENNESSEE COACH COMPANY, Employer. Dated -------------------- By -------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.