Valley Transit Co., Inc.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. WE WILL request Montgomery Ward & Co., Incorporated , to offer immediate and full reinstatement to Fred W. Wallace to his former or substantially equiv- alent position. WE WILL make Fred W. Wallace whole for any loss of pay he may have suffered as a result of our unlawful request that he be discharged. TRUCK DRIVERS, OIL DRIVERS , FILLING STATION AND PLATFORM WORKERS' UNION, LOCAL 705, AN AFFILIATE OF THE INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting , and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Valley Transit Company, Inc. and Brotherhood of Railroad Trainmen, AFL-CIO. Case No. 23-CA-1486. May 16,196.9 DECISION AND ORDER On January 21, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 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 ex- ceptions and brief and the entire record 2 in the case, and hereby adopts the findings, conclusions , and recommendations, insofar as they are consistent with this Decision and Order 3 1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom , Fanning, and Brown]. 20n March 25, 1963, after the close of the hearing herein, the Board received from Respondent an affidavit of R G. Olivo ; on April 12 , 1963, another affidavit was received from the General Counsel in which Olivo disavowed the prior affidavit. The Board rejects both affidavits as neither constitutes probative evidence. 8 We do not condone or adopt certain gratuitous comments contained in the Intermediate Report. Nevertheless, we find that such remarks do not support Respondent ' s allegation of bias and prejudice on the part of the Trial Examiner . We have made an independent review and analysis of the record herein and are satisfied that the findings and conclu- sions of the Trial Examiner which we have adopted, including his credibility resolutions, are fully supported by the evidence Accordingly , we deny Respondent's request to argue this matter orally before the Board. 142 NLRB No. 74. VALLEY TRANSIT COMPANY, INC. 659 1. 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 (a) engaging in unlawful interrogation of its employees, and (b) threatening employee Benavides with economic reprisal if he continued his adherence to the Union. (a) Our finding of unlawful interrogation is based upon Ferrell's conduct in obtaining signatures to the March 21 petition for the pur- pose of ascertaining which employees voted for or against the Union. Respondent contends that Ferrell is not a supervisor. We agree with the Trial Examiner for the reasons stated below that Ferrell is a supervisor. Ferrell, the assistant dispatcher at the Pharr terminal, makes driver assignments, approves the transfer of drivers from one run to another, and grants drivers' requests for time off. He also issues demerits and suspensions to employees who violate company rules, such as being late for work, failing to file necessary reports, and fail- ing to make a schedule run. Under the Respondent's demerit system, drivers are credited each month with four "merits," each valued at $1. For each rule infraction, a driver receives from one to four demerits and for each demerit the driver loses $1. Suspensions for rule viola- tions are generally for 1- to 3-day periods, whereby the driver loses pay for such days. We reject Respondent's contention that Ferrell does not exercise independent judgment in assessing demerits or sus- pensions, as the very nature of the system affects the earnings of the drivers and necessarily implies discretion 4 Contrary to the Respond- ent's assertion that Ferrell only "takes over" when Harvey, his im- mediate supervisor, is on leave, the record shows that during the 6- month period between June and November 1961, Ferrell issued de- merits and suspensions on 143 occasions, whereas Harvey did so only on 7 occasions. Moreover, Ferrell's initials were listed on the monthly demerit reports as a supervisor who was authorized to assess de- merits. Under all the circumstances herein, we find that Ferrell is a supervisor 5 within the meaning of the Act as he responsibly directs employees and effectively recommends their disciplines According- ly, Respondent is clearly responsible for his conduct relating to the circulation of the petition. (b) Benavides is a driver employed at the Harlingen terminal, where Porter is the dispatcher. Benavides testified that "four or five or six" days prior to the election he had a conversation with Porter. 4 Such discretion exists both in the determination of whether an infraction has occurred, and in determining the number of demerits to be assessed for any specific infraction. 5 The mere fact that Ferrell voted in the March 1962 election without challenge does not affect his actual status as a supervisor. O Pacific Motor Trucking Company, 132 NLRB 950, 952, 953. 712-548-64-vol. 142-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Benavides, "He told me that I was aged and that I should protect my run. That I shouldn't mix up with anybody and that my run would be mine always." At an earlier date, Respondent's officials, Raimond and Foiles, interrogated Benavides concerning his affiliation with the Union and obtained an admisison from Benavides that he had joined. In view of Respondent's knowledge of Benavides' adherence to the Union and its admitted antiunion compaign prior to the election, we find that Porter's statement clearly implied a threat of reprisal if Benavides continued his adherence to the Union. Like the Trial Examiner, we do not credit Porter's denial of the threat. Nor do we agree with Respondent's claim that Benavides' testimony concerning the date of his conversation with Porter lacks sufficient specificity relative to Section 10 (b) of the Act. 2. The Trial Examiner found that Farris' threat of reprisal directed to employee Reyna and Respondent's application of its demerit and suspension system were violative of the Act. We do not agree. Neither the complaint nor the bill of particulars alleges any act by Farris as an independent violation of Section 8(a) (1) of the Act. The pleadings allege that Respondent violated Section 8(a) (1) by discriminatorily applying its demerit and suspension system to cer- tain specified individuals. The Trial Examiner, on the other hand, concluded that Respondent violated Section 8(a) (3) by discriminat- ing generally against all employees who had voted for the Union. Additionally, the Trial Examiner's findings with respect to these matters are contrary to his repeated assertions on the record to the effect that he would make no findings except on matters specifically alleged; and that he would not review the nature of demerits which were the subject of "a year's discussion in grievance procedure be- tween the Union and the Company." In view of the foregoing, we reject the above findings with respect to Farris and the demerit- suspension system as these findings are clearly beyond the scope of the complaint and bill of particulars. Moreover, except as discussed hereinafter, we shall make no findings with respect to the application of the demerit-suspension system against named individual employees, as the matter was not otherwise sufficiently litigated to permit such findings to be made. 3. We are in agreement with the Trial Examiner's findings that Respondent discharged employees Casanova, Villarreal, and Solomon in violation of Section 8(a) (3) of the Act? The record shows that 7 The Trial Examiner found that Respondent did not violate Section 8(a) (3) with re- spect to employees Benavides and A. F Garza . As no exceptions have been filed as to them, we adopt these findings pro forma. The Respondent contends that the Board Is precluded from considering the discharges of Casanova, Villarreal, and Solomon for the reason that these matters were disposed of under the grievance procedure of Its contract with the Union. As the contract 's grievance procedure does not provide for impartial arbitration, but reposes In the Respondent's VALLEY TRANSIT COMPANY, INC. 661 Respondent had knowledge that these employees were union adherents. All three wore union buttons on their drivers' caps and none of them signed the March 21 petition which informed the Respondent as to which employees voted for or against the Union in the election. In addition, during the early days of the Union's organizational cam- paign, both Farris and Foiles accused Casanova of having signed a union card ; and Farris told Sanchez, who was then assistant dis- patcher, that he knew of the prounion sentiments of Villarreal and Solomon. Casanova was discharged from his job as extra-board driver at the Harlingen terminal on June 25, 1962. The General Counsel, while conceding that Respondent was economically justified in discharging one of the five drivers in the extra category, nevertheless contends that Casanova's selection was discriminatorily motivated. Casanova had more seniority on the job than the other drivers. Additionally, the names of the other four drivers appeared on the March petition circulated by Ferrell, thus professing that they voted against the Union. Respondent contends that its contract with the Union pro- vided that work performance, rather than seniority, controlled layoff situations, and that Casanova was the weakest driver.' The record does not support the Respondent's position. The contract is silent with respect to the effect of seniority concerning layoffs and, in any event, the evidence does not establish that Casanova's driving record was less desirable than some of the other drivers. In June 1962, no demerits were given Casanova, whereas one each was given to Fonseca and Luis Leal, two of the other extra drivers; in May 1962, three de- merits are shown against Casanova, compared to four demerits and a 7-day suspension against Fonseca ; and for a period of 6 months, begin- ning January 1962, Casanova and Fonseca each received the same number of demerits. We, therefore, find that although the Respondent had economic reasons to release one of the five extra-board drivers, Casanova was discriminatorily selected for layoff in violation of Section 8(a) (3) of the Act. The record is clear that under the Respondent's asserted layoff policy, seniority was a factor to be considered where work per- formance was equal. Absent any discriminatory motive, the objec- tive factors point to the selection for layoff one of the other four extra-board drivers who were not members of the Union, who had less seniority than Casanova, and whose work performance was no better. In view of Respondent's admitted opposition to union organ- general manager the discretion to make all final decisions with respect to grievances, we find no merit in the Respondent' s contention . Cf. Spielberg Manufacturing Company, 112 NLRB 1080. 8 Contrary to Respondent's contention , as late as September 25, 1962, the Union in- sisted that Casanova's discharge was discriminatorily motivated 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ization and its interference by way of the Ferrell petition after the election, we are persuaded that the occasion for an economic layoff was used as a device to eliminate a known union adherent.9 Villarreal was discharged on August 3, 1962, for failing to make a weekend driving assignment. The Respondent contends that Vil- larreal's conduct was deliberate. The General Counsel argues other- wise, asserting that Villarreal was discriminatorily discharged as he was not told to work on that assignment. Following a suggestion by Villarreal, Dispatcher Porter arranged for an extra run on weekends from Brownsville, Texas, to Harlingen, from which point passengers would be transferred to another bus operated by another driver for the trip from Harlingen to Raymond- ville, Texas. Villarreal made the Brownsville-Harlingen trip and R. Garza, the Harlingen-Raymondville run, on the first Saturday and Sunday runs of July 21 and 22, 1962. On the following Saturday, Garza waited at Harlingen to pick up passengers for his trip to Raymondville, but the bus from Brownsville did not arrive. Garza then proceeded to his destination without any transfer passengers from Brownsville. At the Harlingen terminal the next day, Porter asked Villarreal why he had not made the Brownsville trip the night before. Villarreal replied that he had not been instructed to do so. Porter thereupon told Villarreal to make the trip that Sunday night and Villarreal did, making the connection with Garza at the Harlin- gen transfer point. On August 3 of the same week, Villarreal was discharged for failing to make the second Saturday trip. Porter testified that on Sunday night, July 22, at the Harlingen transfer point, he told both Villarreal and Garza to make the new run every Saturday and Sunday "until you are told different." Vil- larreal, as stated above, and Garza disputed Porter's testimony. Garza stated that when Porter told him about making the run, Villarreal was not present. The Trial Examiner discredited Porter's version and so do we. Accordingly, we reject the Respondent's as- serted defense that Villarreal was discharged for cause in that he deliberately missed a run. Moreover, the record demonstrates that other employees who had failed on previous occasions to make sched- uled runs were disciplined by an assessment of four demerits and a 3- day suspension. Such disparate treatment against Villarreal convinces us that Respondent seized upon the confusion in work assignments to rid itself of another union adherent. Under these circumstances, we find that Villarreal was discharged in violation of Section 8(a) (3) of the Act. e Casanova was reemployed by Respondent on November 12, 1962, at the Pharr terminal. As recommended by the Trial Examiner and for the reasons stated by him, Casanova is entitled to reinstatement to the job he held at Harlingen at the time of his discharge. VALLEY TRANSIT COMPANY, INC. 663 Solomon was discharged, according to the Respondent, for lying to Superintendent Slack at a time when the latter was substituting for Dispatcher Porter. Solomon's testimony reveals that on August 4,. 1962, about 1:45 p.m., he returned to the Harlingen terminal from a, chartered run and informed Slack that he was through with the bus. Solomon then proceeded to the drivers' room to sign out and prepare his schedule for the next day. Slack entered and remarked, as he walked out of the door, that he was looking for an extra driver. Slack did not talk directly to Solomon. Slack testified that while he was searching for an extra driver he was told by Solomon that he was not finished with the charter bus; that he then asked Solomon what time he had to leave and Solomon replied 3 p.m.; and that he learned later in the day that Solomon had signed out at 1:45 p.m. For the reasons stated by the Trial Examiner, who had the benefit of observing the witnesses, we credit Solomon's testimony that he did not lie to Slack.1° At most, as in the case of Villarreal, faulty com- munication led to confusion and misunderstanding. We find, there- fore, that Respondent used this incident as a pretext to discharge an- other union adherent, in violation of Section 8(a) (3) of the Act. 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, Valley Transit Company, Inc., Harlingen, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist: (a) Interrogating its employees concerning their union sympathies and activities in a manner violative of Section 8(a) (1) of the Act, and threatening them with economic reprisal because of such sym- pathy or activity. (b) Discouraging membership in Brotherhood of Railroad Train- men, AFL-CIO, or in any other labor organization, by discharging or by discriminating in any other manner against employees with re- spect to their hire, tenure, or any term or condition of employment, because of their activity on behalf of the Union or any other labor organization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the Union, or any other labor organization, to 10 The record shows that Porter told Solomon , before he left on the charter trip, to "report back to me because we have got a lot of trippers and a lot of extra work and I am sure you will get some more work." Solomon did try to locate Porter upon his return from the charter trip and even asked Slack about Porter's whereabouts In any event, according to Slack's own testimony , he did not request Solomon to work as an extra driver. Moreover, it appears that extra work was performed on a voluntary basis and therefore there was no necessity for Solomon to engage in chicanery to avoid extra work. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer employees J. R. Casanova, J. T. Villarreal, and H. M. Solomon, Jr., immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Re- port entitled "The Remedy." 11 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its terminals in Harlingen and Pharr, Texas, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. n For the reasons set forth in the dissent in Isis Plumbing & Heating Co , 138 NLRB 716, Member Leedom would not grant interest on backpay. 22 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES 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 you that: WE WILL NOT discourage membership in Brotherhood of Rail- road Trainmen, AFL-CIO, or any other labor organization, by discharging or by discriminating in any other manner against VALLEY TRANSIT COMPANY, INC. 665 employees with respect to their hire, tenure, or any term or con- dition of employment, because of their activity on behalf of the Union or any other labor organization. WE WILL NOT interrogate employees concerning their union sympathies and activities in a manner violative of Section 8 (a) (1) of the Act, and threaten them with economic reprisal because of such sympathy or activity. WE WILL NOT in any other 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 the above Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. WE WILL offer employees J. R. Casanova, J. T. Villarreal, and H. M. Solomon, Jr., immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and will make them whole for any loss of pay suffered as a result of our dis- crimination against them. All our employees are free to become, to remain, or refrain from becoming or remaining members of the above-named or any other labor organization. VALLEY TRANSIT COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTE.-We will notify any of the above-named employees if pre- sently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No. Capitol 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The abovenamed labor organization filed an original charge on September 6, 1962, and an amended charge on October 26, 1962. Also on the latter date the General 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel of the National Labor Relations Board issued and served his complaint, alleging that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. On November 1, 1962, the Respondent filed its answer, denying all allegations of the complaint, even the allegation that it existed as a corporation or was engaged in bus transportation Pursuant to notice, a hearing was held in Harlingen, Texas, on December 4 and 5, 1962, before the Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent. Disposition of the Respondent's motion to dismiss, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Although denying such facts in its answer, at the hearing the Respondent con- ceded, and it is found, that: (1) Valley Transit Company, Inc., is a Texas corporation, maintaining its office and principal terminal at Harlingen, Texas, where it is engaged in bus transportation. (2) During the year preceding issuance of the complaint it received from its bus operations gross revenue of more than $250,000. (3) During the same period it rented from the Goodyear Tire Company, at a cost of more than $12,000, tires manufactured at Akron, Ohio, and furnished for its use in its Texas operations. The Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING PARTY Brotherhood of Railroad Trainmen , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Setting and issues So far as the record reveals, in the several years of the Respondent 's operations it was not until the spring of 1962 that its bus drivers formally selected a labor organization as their bargaining representative. Organization by the Brotherhood of the drivers in the Respondent's system, which includes a Harlingen and Pharr division, began in early 1962. The evidence is clear that from the start of such efforts management representatives moved to discourage the drivers from exercising the rights of such representation accorded them by Section 7 of the Act. Indeed, early in the hearing, counsel for the Respondent candidly conceded: Now as far as the opposition to organizational efforts of the employees, we will agree that the Company, during the Union campaign, made every legal effort that it could to induce its employees to not select a Union to represent them. . . . Despite such openly admitted opposition organization proceeded to the point of an election which was conducted by the Board on March 15, 1962. The Union won, and was duly certified. Less than a week after the election Wayne Ferrell, assistant dispatcher at the Pharr terminal and listed as a supervisor on company records in evidence ,' circulated a document among the employees and obtained some 18 signatures . The text follows: We, the undersigned, do solemnly state and will do so under oath, that we voted in the election held by the N.L.R.B. on March 15, 1962 at Pharr and Harlingen, Texas, to the effect that we did not want to be represented by Brotherhood of Railroad Trainmen (AFL-CIO) or belong to or participate in any union activity. 1 Ferrell's supervisory status will be further discussed below. VALLEY TRANSIT COMPANY, INC. 667 This document with its signatures, which so overtly flouted the statute's policy of secret elections, was addressed to a vice president of the Brotherhood, with a copy being sent to and received by President Farris of the Respondent .2 It is undisputed that in soliciting at least one employee to sign the document Ferrell agreed that in circulating it he was "trying to find out who is a Union man or who voted for the Union." In this atmosphere of hostility toward the Union other events occurred which, in addition to this inquisition concerning the election, General Counsel claims were violative of the Act. Such events include: (1) reduction in the number of work- ing hours; (2) application of a demerit and suspension system; (3) the discharge of three employees, and (4) certain remarks to drivers by management representatives. B. Interference, restraint, and coercion Despite President Farris' bland contention, as a witness, that Wayne Ferrell is a mere hourly paid bus operator, more credible evidence sustains General Counsel's claim that this individual actually is a supervisor within the meaning of the Act. That Ferrell may occasionally operate a bus does not detract from his supervisory capacity. According to his own testimony Dispatcher James Porter, an admitted management representative, sometimes "pulls trippers" when drivers are short. As assistant dispatcher at the Pharr terminal Ferrell assigns drivers to their runs and issues demerits for rule violations, action which directly affects drivers' em- ployment and income. In the record are monthly demerit and suspension sum- maries from January 1961 through November 1962, which were posted at both terminal bulletin boards. These sheets show the date of the claimed rule viola- tion, the name of the driver, the number of demerits or of days suspension, the reason, and the initials of the supervisor issuing such demerits. Even a cursory glance through these records indicates that a large portion of such demerits were issued by "WF," the initials of Wayne Ferrell. For example, in March 1962, the month of the Board election and during which Ferrell was circulating the above- described letter, the company-posted bulletin shows that Ferrell issued 54 of the approximate total of 95 demerits for that one month. The Trial Examiner concludes and finds that the Respondent must be held re- sponsible for Ferrell's conduct as a supervisor. And his action in circulating and obtaining signatures upon the March 21 letter, for the avowed purpose of ascertain- ing who had voted for the Union, clearly violated the rights of employees guaranteed by Section 7 of the Act. Competent, credible, and substantial evidence also establishes the following in- cidents of interference, restraint, and coercion: (1) Sometime before the election management officials. Raimond and Foiles,3 called driver Benavidas into the office, where Foiles demanded to know why the employee had previously told him he had not signed "for the Union." After Foiles told him he had a list of those who had signed, Benavidas admitted that he had signed. Raimond then demanded to know who had gotten him to sign. The driver declined to reveal this information, pleading that he was getting old and "the boys might get angry with me." Raimond slammed the door as Benavidas went out? On or about March 10, 1962, just before the election, Dispatcher Porter warned Benavidas that he was getting "aged" and should "protect" his run, and "shouldn't mix up with anybody" and his run would be his "always." 5 2 As a witness Farris said he referred the matter to counsel. Counsel for the Respondent, a former Board attorney, wisely advised Farris to ignore it. a Foiles is a general manager. The Trial Examiner is unable to determine from the record precisely what office Raimond held at material periods There is in evidence, how- ever, a letter dated as late as August 3, 1962, bearing the signature of R. G. Farris over the title "President," the letterhead itself bearing the word • "Vance D. Raimond, President." And the testimony of Dispatcher Porter at Harlingen shows that also in August he was under Raimond, whatever the latter's title may have been. (Harlingen borders on Mexico, where generals abound.) * Benavidas' testimony about this interview is uncontradicted. Because the employee, on cross-examination, was uncertain of its date, and admitted that it might have occurred as early as January, the Trial Examiner cannot find it to have been an unfair labor prac- tice within the 10(b) period, which began on or about March 6, 1962. As a historical fact, however, it throws light upon the later incident above described. 6 Porter only denied that he "promised" Benavidas "a job if be would vote against the Union " Accepting this as a denial of the language attributed to him by the driver, 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Early in April 1962 , driver Reyna was called into Farris' office regarding demerits given him by Ferrell. Farris, who admitted receiving the letter which Reyna had refused to sign for Ferrell, opened the interview by asking: "Why did you go Union? I always counted on your vote for the Company. But you still have a chance. You can always change your mind. And probably we can ar- range, if you want to change your mind, but if you don't want to change your decision it is up to you, but I still say I am not going to have nobody from the North come over here and tell me how to run this Company. Over here we do as we please." 6 Farris' remarks constitute a plainly implied threat of reprisal if the employee did not "change" his mind and withdraw from the Union.7 C. Demerit and suspension discrimination The complaint alleges and the answer denies that immediately after the Union won the election on March 15 management began applying , discriminatorily and be- cause of union membership, its demerit and suspension system . In response to an order calling for particulars , General Counsel listed nine individuals as having been thus discriminated against. In quick summary, long before the Union began organizing here the Company had established and was following a "demerit" system, whereby at the beginning of each month all drivers who had passed a probationary period are credited with four merits, each valued at $1 . And for each demerit given for rule infraction dur- ing that month he loses $1. Under the contract which the Union signed with the Respondent on June 12, 1962, all of the company rules put into effect in 1956 were "incorporated ." By the same contract, moreover, the Union surrendered to management the exclusive right to "lay off employees because of lack of work , or other legitimate reasons" and the exclusive right to make work rules, schedule all work shifts, transfer employees and to determine "the ability of employees to perform their work." The Union also surrendered the right to negotiate concerning any "bargainable matters" which might arise during the term of the contract . The Union also surrendered , by this contract, the right to have "considered or be subject to grievance procedure" or adjustment any grievance "the basis for which occurred prior to" June 12-although it had been the certified bargaining agent since the election in mid-March Finally, the Union accorded to the Company's general manager the exclusive right of deciding all grievances, on rehearing, with his decision becoming "final and binding" upon the Union.8 Although it appears that the Union yielded to management all grievance rights from the time it became the legal representative of all employees in March until the contract was executed , there seems to be no good reason why the Federal law should not be applicable during that period. In any event, the Trial Examiner will consider, as in issue, the question of demerit and suspension application from Febru- ary through May 1962.9 nevertheless in the light of the previous interrogation by both Ralmond and Foiles the Trial Examiner 'cannot credit the denial as true O Farris admitted calling Reyna into the office . He said they had it "very pleasant dis- cussion" regarding the demerits and declared , at first, "Sir , I remember no conversation about Unions at all " Not until pressed by his ,own counsel • "Did you have any conversa- tion with him at that time with reference to the Union"' did Farris answer, "No, sir." Apparently not fully satisfied with this direct answer, his counsel pursued the matter "You say you don't recall, or you say that none occurredV" Farris then said, "I will say I don't recall I am sure that none occurred , but I don't recall " The Trial Examiner can find no kernel of truth in a denial that thus hops hither and yon like popcorn on the hot griddle of his own counsel's examination. 7 The Trial Examiner does not find violative of the At certain remarks attributed to Dispatcher Harvey by the same employee, concerning possible reprisals in the event of a strike It is undisputed that the subject arose when the driver asked what would happen If a strike came about. And the driver himself testified that Harvey immediately retracted the word "fired" and said he meant "replaced." 8 Lest it be forgotten , this contract was entered into by a labor organization : Brother- hood of Railroad Trainmen. B Thus avoiding the issue as to whether, under Board dictum set out in May Department Stores Company ( 59 NLRB 976 , at 981-982 ), to the effect that employees in a bargaining unit are bound during the contract period by surrender of rights made by their bargaining representative, there is merit in the Respondent 's contention that by terms of this contract VALLEY TRANSIT COMPANY, INC. 669 No attempt will be made, however, to appraise the merit of each specific demerit and suspension issued to each employee during this period. Neither the quantity nor quality of the evidence in the record would permit such determination. But company records in evidence, when considered together with other unfair labor practices found, lead inescapably to the reasonable inference and conclusion that General Counsel's general allegation of discrimination is sustained. The following summary of such records seems self-revealing. For the months indicated it lists in separate columns the demerits and suspensions issued to 17 union drivers 10 as compared with the 18 drivers who signed Ferrell's letter stating that they had voted against the Union 11 Month Issued To union members To nonunion drivers Suspensions Demerits Suspensions Demerits October 1961----------------------------___-- None 15 None 16 November ------------------------------------- None 24 21 December 29 None 21 January 1962---------------- --------- None 31 21 February----__ ------------ None 16 None 32 March 65 None 30 April------------------------------ 4 64 None 36 May----------------------------------------- 3 56 28 June------------------------------------------- 2 53 None 12 July------------------------------------------- 26 None 14 August--------------------- ------------------ None 1s None 13 September------------------------------------- None 13 2 32 October---------------------------------------- None 18 None 30 The Respondent offered no reasonable explanation for the sudden quadrupling of demerits and suspensions issued against union adherents in March, April, and May, 1962, while the number issued against those who had signed Ferrell's letter remained substantially stable. As noted above, the record warrants no detailed findings that the specific demerits and suspensions issued against union adherents were without basis of some actual rule infraction, except in a minor incident or two, or that nonunion drivers actually deserved more demerits and suspensions than they received. Even if such evidence were now available it is doubtful if one life would be sufficient to have permitted full investigation of each and every one of the many scores of such demerits and suspensions. (The Trial Examiner has reason to be somewhat sensitive on the subject. He learned more than a trifle about the ways of public transportation systems and the issuance of "briefs" for rule infractions many years ago and dur- ing the weeks of hearing in the Baltimore Transit Company case, 47 NLRB 109. There, when employees attempted organization, the oldest and most reliable em- ployees in service were selected to lead the campaign. One after another were followed by "spotters" who, within a few days, recorded numerous "briefs"-infrac- tions of one or more of the 200 or more company rules. The Company claimed that it then discharged the drivers for such "briefs." It was notable that one old- timer, observing his fellow drivers or motormen falling by the wayside, decided to observe carefully each rule and regulation. He chose the morning rush hour. As a result of his meticulosity, downtown Baltimore was tied in a knot for a consider- able period.) The foregoing summary, however, in the opinion of the Trial Examiner, fully supports the conclusion, here made, that immediately after management learned the identity of union adherents, through Ferrell's letter of March 21, and in resentment against employees because they had voted for the Union, management applied its demerit and suspension system discriminatorily and unlawfully. its general manager's decision on grievances shall be final and binding-even upon the Board. "Also included in the union column are the demerits issued to Reyna, who had refused to sign the Ferrell letter, as found heretofore. 11 The Trial Examiner is not a CPA. Any errors of compilation are inadvertent. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discharges The complaint alleges and the answer denies that the following three drivers were unlawfully discharged on the dates set opposite their names: J. R. Casanova ------------------------------------------ June 25, 1962 J. T. Villarreal ----------------------------------------- August 2, 1962 Hipolito Solomon, Jr.____________________________________August 6, 1962 Casanova: For nearly 2 years before his discharge on June 25 Casanova had been an "extra-board" driver. It is undisputed that in February he was accused by Farris and Foiles of having signed a union card. He denied the accusation. Immediately after the election he refused to sign the letter circulated by Ferrell, thus in effect in- forming management that he had voted for the Union. Moreover, early in June he began wearing a union button openly. In point of service Casanova, on June 25, had more seniority than any one of the other four extra-board drivers, a fact conceded by Farris. Casanova was the only one of the five who was a union member. The signatures of the other four appear on Ferrell's letter. When Farris terminated his employment Casanova was told to look for other work. Nothing was said to him about recall. Yet shortly after being interviewed by Counsel Harper of the Board office during investigation of the charges in this case, Farris reemployed Casanova although assigned to the Pharr division instead of his regular job at Harlingen. He was recalled on November 12, 1962. As a witness Farris claimed that he selected Casanova for layoff, when economic necessity to cut runs occurred, because he was "weaker" and had more demerits than the four drivers with less seniority. It is true that company records show that during the month of April, after he had refused to sign the Ferrell letter, he was given 13 demerits and one 3-day suspension. The Respondent offered no credible evidence that any one of these penalties was deserved. In view of the above con- clusion that during this period the Respondent was unlawfully applying its demerit system and the recorded fact that Casanova had received but 12 demerits in the preceding 6 months, the Trial Examiner believes that the burden was upon the Respondent to show something more substantial than such questionable records to support Farris' claim. The Trial Examiner finds no merit in Farris' claimed reason for selecting Casanova for either "discharge" or "layoff," whichever term is applied. And although he has been put back to work, at the same pay, the evidence shows that he has not been reinstated to his regular position at Harlingen. The Trial Examiner concludes and finds that Casanova was unlawfully discharged to discourage union membership and activity. Villarreal: This employee had had some 6 or 7 years of service with the Respond- ent when summarily discharged on August 2 or 3, 1962. He had worn his union button openly and had not signed Ferrell's letter. His interest in company business-as well as his own paycheck-is established by the admitted fact that in July he suggested to Dispatcher Porter that passenger traffic warranted an extra run on weekends to Brownsville, Texas. Upon his rec- ommendation Porter set up such a run for him and further arranged that another driver, Ramiro Garza, should meet his bus at Harlingen to take passengers on to another destination. Garza and Villarreal made their respective runs and connec- tions on one Saturday and Sunday. According to Porter when the two drivers made their connection that Sunday night he told them both to "pull these trippers every Saturday night and Sunday night until you are told different." Both Garza and Villarreal, however, disputed Porter's version. Garza admitted that Porter told him, but supports Villarreal's testimony that the latter was not present when instructions for the next week were uttered. In any event, unable to locate Porter the following Saturday and not find- ing the extra posted at the terminal Villarreal failed to make the run that night. At the terminal the next day, Sunday, Porter asked him why he had not made the extra the night before. Villarreal replied that he had not been so instructed. He willingly made the run that Sunday night, but was suspended and fired the next week by Farris. As a witness Farris claimed that he fired the driver because his failure to make the "tripper" on that one occasion was a "deliberate act against company instruc- tions that resulted in loss of business to the Company." Hardly a more extravagant and unfounded accusation is conceivable. The extra runs themselves, and whatever profit the Company made, were the direct result of the driver's suggestion. The Trial Examiner believes the testimony of Villarreal and Garza to the effect that the former was not present the preceding Sunday when Porter said to continue VALLEY TRANSIT COMPANY, INC. 671 the trippers the next week. It is reasonable to believe, and it is found, that Villar- real failed to make the run that Saturday night only because he did not understand that he was supposed to. At worst it was a mere misunderstanding, and clearly not an act of insubordination. There was no refusal. Under these circumstances, and including the Respondent's concurrent unlawful conduct, the Trial Examnier concludes that Villarreal was unlawfully discharged to discourage union membersip and activity. Solomon: This driver also had about 7 years' service when he was summarily dis- charged on August 6, 1962. He also had not signed Ferrell's letter and wore his button. It is the claim of Farris that Solomon was discharged because he "lied" to Super- intendent of Transportation Slack at a time when he was "filling in" for Dispatcher Porter. According to Slack on a Saturday, shortly before the discharge , he came into the dispatch room looking for a driver to assign to an extra "tripper." He saw Solomon standing by the "sign-out sheet," he testified, and asked him if he was "through" on the charter run from which he had lust returned , the bus then being "cleaned out" just outside the office at his own instructions . Also according to Slack, Solomon answered "No," whereupon he inquired what time he had to leave. He quoted Solomon as saying "Three o'clock," so he turned around, went out, and tried to locate another spare driver . About 4 o'clock, Slack continued, he "happened to look out the window from my office and there sat the bus that I thought Solomon was going to use." He then returned to the dispatcher 's room and on the "sign-out" sheet discovered that Solomon had "signed out at 1:45 ." When Porter finally came in, apparently sometime after 4 o'clock, Slack told him that Solomon had "pulled a cute one." Porter reported what Slack told him to Farris. According to the more credible testimony of Solomon , when he reported in with his chartered bus at 1:45 p .m. that Saturday, he inquired of Slack where Porter was. Slack said he did not know. Solomon then told him that he was through with his charter bus, but that the "charter people" had left a "beer barrel and some other things" in it. Shortly after this , according to the driver, he heard Slack say some- thing about "looking for an extra-board driver," but that he did not understand Slack to be talking to him. The following Monday, August 6, Solomon was suspended and on August 9 per- manently discharged , being told by Farris that it was because he "lied" to Slack. The Trial Examiner believes Solomon, not Slack. No evidence was brought forward by the Respondent to show that Solomon throughout his long service was of an untrustworthy character. Company records show that for the entire 15- month period from January 1961, through March 1962 , Solomon had never been suspended for any rule infraction and had received a total of only 12 demerits. Yet in the 3-month period of April , May, and June, 1962, after the election, he was given not only a suspension but 19 demerits . None of the demerits , with or without merit, were for deceiving or attempting to deceive a dispatcher in order to avoid a run, according to the records. Moreover, upon analysis Slack's account is incredible on its face . He admitted that he had the bus "cleaned out," thus supporting the substance of Solomon's testimony to the effect that he told him he was through with the charter. It is hardly reasonable to believe that he would have removed the beer from the bus if he really expected the charterers were to be back or be picked up later by the same bus. Nor does his testimony reveal reasonable explanation for the fact that he was apparently immobile or unobservant from 1.45 to 4 o'clock, and did not until the latter hour discover that Solomon had "signed out" at the former hour- with the bus itself just outside his window all this period. The Trial Examiner is convinced and finds that Solomon did not "lie" to Slack, and that Farris discharged him, as he had Villarreal and Casanova , to discourage union membership and activity. E. The alleged discrimination against F. Benavidas It appears that shortly after the election Benavidas ' regular run, along with that of several others , was cut back, reducing the number of hours for the drivers concerned . General Counsel makes no claim that these several cutbacks in service were not brought about by economic necessity or that-except for Benavidas' run-they were unlawfully discriminatory . Yet he offered no evidence that this employee's run was unnecessarily cut, or that he actually suffered discrimination. Under these circumstances the Trial Examiner finds that the evidence is insufficient to support the allegation of discrimination concerning this driver. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Alleged discrimination against A. F. Garza General Counsel alleges and the Respondent denies that driver A. F. Garza was discriminatorily suspended for about a week in July 1962 to discourage union membership. In the opinion of the Trial Examiner the preponderance of evidence fails to sup- port General Counsel's contention. In quick summary, the circumstances were these. For some time before his suspension Garza had been, as part of his regular duties, delivering a certain bus from the shop to the Pharr terminal. One day he failed to make the delivery because, according to his own testimony, he preferred to take care of certain personal matters. He did not notify management before- hand that he would not or could not make the delivery. After the suspension the matter was taken up as a grievance, and the union representative apparently agreed that the delivery was a part of the assigned duties. In any event, Garza has con- tinued to make the bus delivery since the suspension. Whether the suspension was over-severe or not is not for the Trial Examiner to decide. Substantial evidence supports the management contention that it was im- posed because of his failure to perform his duties. G. Conclusions The Trial Examiner concludes and finds that by discharging drivers Casanova, Villarreal, and Solomon, and by discriminatorily applying the demerit and suspen- sion system, for the purpose of discouraging union membership and activity; and by the circulation of the Ferrell letter and the implied threats of reprisal by Porter and Farris, herein described, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer employees Casanova, Villarreal, and Solomon immediate and full reinstatement to their former or substantially equivalent positions-in the case of Casanova to the position at the Harlingen ter- minal from which he was discriminatorily discharged-without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings they may have suffered by reason of the discrimination against them, by pay- ment to each of them of a sum of money equal to that he would normally have earned as wages, absent the discrimination, from the date of such discrimination to the date of the offer of reinstatement, in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 The backpay obligations of the Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716. In view of the serious and continued nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from in any manner in- fringing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Brotherhood of Railroad Trainmen, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating as to the tenure of employment of employees Casanova, Villarreal, and Solomon, and by discriminatorily applying the demerit and suspension system, thereby discouraging membership in and activity on behalf of the above- LLOYD A. FRY ROOFING CO. INC., ETC. 673 named labor organization, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Lloyd A. Fry Roofing Co. Inc. and Volney Felt Mills, a Division Thereof and Oil, Chemical & Atomic Workers International Union, AFL-CIO Lloyd A. Fry Roofing Co. Inc. and Volney Felt Mills, a Division Thereof and Oil, Chemical & Atomic Workers International Union, AFL-CIO, Petitioner. Cases Nos. 11-CA-1978 and 11- RC-1661. May 16, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On February 8, 1963, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that certain of the above unfair labor practices engaged in by the Respondent affected the results of the Board election in the above-captioned representation case and rec- ommended that the said election be set aside and that a new election be held at such time as the Regional Director for the Eleventh Region deems that circumstances permit the employees a free choice of a bargaining representative. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 142 NLRB No. 78.