Queen City Coach Co.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 14, shall, after being signed by a representative of Respondent , be posted by it immediately upon , receipt thereof and be maintained by uit for .60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily . posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any material. , (c) Notify, the Regional Director for Region 14, in writing, within 20 days from-the receipt of this Decision and Recommended Order what steps the Respond- ent has taken to comply herewith.2' ' 2In the event that this Recommended Order is adopted by the Board, this provision shall be' modified to read: "Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order what steps the Respondent has -taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 interrogate or threaten our employees unlawfully concerning their union membership and activities. WE WILL NOT discourage membership in International Union of District 50, United Mine Workers of America, or in any other labor organization by discriminatorily discharging any of our employees or in any other manner discriminating against any individual in regard to his hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL offer to Frank A. Kohn, Jr., immediate and full reinstatement to his former or substantially equivalent position, and make him whole for loss of pay suffered as a result of the discrimination against him; and if he is presently serving in the Armed Forces of the United States WE WILL notify him of his rights to reemployment under applicable statutes. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. SIGMA CHEMICAL COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1040 Boatmen's Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4156. Queen City Coach Company and Amalgamated Transit Union, Local No.1531. Cases 11-CA-2855, 2885, and 2898. June 13,1966 DECISION AND ORDER On March 28, 1966, Trial Examiner Thomas A. Ricci issued his .Decision in the above-entitled proceeding, finding that 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 Trial Examiner's Deei- 159 NLRB No. 19. QUEEN CITY COACH COMPANY 205 sion. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices, and recommended that those allegations of the complaint be dismissed. Thereafter, Respondent filed a "Statement of Exceptions" to the Trial Examiner's Decision, and the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman -McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in these cases, including the exceptions and brief, and hereby adopts the fmdings,l conclusions, and recommendations 2 of the Trial Examiner, with the modifications noted below.3 [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(b), the present paragraph 2(b) and those subsequent thereto being consecutively relettered: [" (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service i In section III of his Decision, the Trial Examiner erroneously states- "A third election, held on March 25, 1965, resulted in a vote of 102 for and 79 against the Union " It was stipulated that "the result of the March 25, 1965 election was 102 to 79 against the Union " The Board's records in Case 11-RC-1925, the representation proceeding, show that, on April 2, 1965, the Regional Director for Region 11 issued a certification of results showing that the Union had lost the election 9 The Trial Examiner recommends that Respondent be ordered to post copies of the notice at "each of its terminals in Charlotte, Fayetteville, Jacksonville, Wilmington, Greensboro, Asheville, and Rockingham, all in North Carolina, Augusta, Georgia, Myrtle Peach, South Carolina, and Johnson City and Bristol, both in Tennessee" Respondent excepts, stating that "various of such terminals are in no way involved in the present proceeding." We disagree with Respondent. Elections held in July and August 1964 and March 1965 included all of those terminals. The authority of Snodgrass, Respond- ent's agent who is found to have unlawfully entrapped certain employees, spans the terminals named above. Furthermore, the drivers found to have been unlawfully dis- charged worked out of the Charlotte, North Carolina, and Augusta, Georgia, terminals, and drivers from those terminals come into contact with drivers from all of the terminals named above In the circumstances of this case, we find that the unlawful activities found to have occurred can best be remedied by requiring Respondent to post copies of the notice herein adopted at all of the terminals named above. 3 We do not adopt certain of the Trial Examiner's extraneous comments and charac- terizations which appear under the section of his Decision entitled "The Discharge of Ernest Garrison and Parker Love." In the fifth from last paragraph, we adopt his factual findings relating to the financial condition of Joyce Lewis, but disavow all else. In the fourth from last paragraph, we agree with his finding that Snodgrass told tile three checkers to look after the matter of salary deductions themselves, and with his credibility finding as to Snodgrass, but disavow all else. In the third from last paragraph of that section, we disavow the second from last sentence. We do not rely on footnote 1 of the Trial Examiner's Decision 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [A typographical error appears in present paragraph 2(c) of the Trial Examiner's Recommended Order. The name "Greensobor" is hereby corrected to read "Greensboro."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above entitled proceeding was held before Trial Examiner Thomas A. Ricci on January 25, 26, 27, and 28, and February 7, 1966, at Char- lotte, North Carolina on separate complaints of the General Counsel against Queen City Coach Company, herein called the Respondent or the Company. The issues litigated are whether the Respondent violated Section 8(a)(3) and (1) of the Act. No briefs were filed by the parties. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Queen City Coach Company, a North Carolina corporation , is engaged in the transportation of passengers by motor vehicle. It operates routes directly across State lines and maintains terminal facilities in the States of North Carolina, South Carolina, Georgia, and Tennessee . During a typical 12-month period it received gross revenues from such transportation of passengers in excess of $250,000. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Transit Union, Local No. 1531 , herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues presented This case is concerned with the discharge of five of the Respondent's bus- drivers, four released in August 1965 and one the following November 1. As to each man there is testimony , of varying quantitative or probative weight, showing that the Respondent was aware of their prounion attitudes, and the complaint alleges that all five were discharged because of their activities or senti- ments in favor of collective bargaining through the Union. The conduct of the Company now said to have been in violation of Section 8(a)(3) of the Act fol- lowed several abortive attempts by the Board to hold free elections among the total busdriver group, about 180 employees . Successive elections, held in July and August 1964, were set aside by the Board because of improper interference by the Respondent's representatives , clear indication that the Respondent was op- posed to union representation in the Company. A third election, held on March 25, 1965, resulted in a vote of 102 for and 79 against the Union. At the hearing, each of the five drivers admitted certain errors or failures to comply with company operating rules in the course of their work. The extent or severity of their past failures is disputed as to three of them. The other two conceded the wrongdoing which the Respondent asserted, for the first time at the hearing , as the ostensible ground for their discharge. The question, in every instance, is whether despite the mistakes, or willful misconduct , however shown, it must be said , on the basis of the preponderance of the substantial evidence on the record as a whole, that the real motivation in the discharges was instead to discourage union activities among the employees . The, focal point of the evidence offered by the General Counsel to prove union animus in the Respondent is the testimony of Joyce Lewis, a tall, unmarried, and attractive 32-year old woman used by the Respondent to entrap two of the drivers-Ernest Garrison and Parker Love-into carrying her free of charge on a regular bus run and thereby create grounds for summary discharge . She said she was prevailed upon to do this by QUEEN CITY COACH COMPANY , 207 Frank Snodgrass, a professional private investigator recently hired by the Com- pany. Snodgrass corroborated her-story thus far, that with knowledge she had long known the two drivers, he set the stage to ensnare them. Apart from this calculated strategy, there is conflict in the testimony of Lewis against Snodgrass. She-testified he told-,her at the time the reason for attempt- ing to trick these, as well as certain other named drivers , was because they were union members, or officers, and that the Company would pay a bonus to him if he succeeded; indeed, that he also -promised her a portion , of the bonus as a further reward . Snodgrass, at the hearing, denied ever having spoken of the Union, or of union members to Lewis. - The question of credibility between them goes to the heart of the entire complaint , for if in truth - the investigator so directly revealed such a purpose in his activities,. an intent by the Respondent to rid itself of pro- union employees stands stark on,the record. The issue in the discharge of the remaining three drivers-Floyd Byrd, Thomas Home, and Horace Wilkins-falls into a more usual pattern. , There were acts of negligence, disregard of various regulations , lateness; and faults of this type., As will be seen, the conflict in the testimony on this aspect of the case is 'one of degree rather than kind . The empolyees attempted to minimize their errors and the company witnesses enlarged upon them so as to make - the offenses appear more aggravated.,. Apart from understandable exaggerations either way, in sub- stance the things - chargeable, to these employees in major ' portion did happen. The : Respondent asserts, in defense; that they were discharged for these reasons; the General Counsel contends there-Is enough persuasive evidence to'require a conclusion that - these errors -on' their part were but pretexts used to cloak union animus in each case. B. The discharge 'of, Ernest Garrison and Parker Love Joyce .,Lewis was employed - at the Holiday Inn Motel in Florence, North Carolina, as supervisor of the chambermaids;,she earned $65 weekly. On July 5, 1965, she met Snodgrass who 'was staying at the Inn and whose room required attention., Her testimony ;follows: Snodgrass told her the employment office -was closed [this was the Monday following , the 4th of July, when the 'USES was on holiday] and did she know anyone who wanted a job checking busdrivers. She mentioned her brother, Samuel, and Alfred Smith, a, friend of , her young sister. In looking about ,the room Lewis noticed a ".Queen City Trailway Book and a sheet of paper with three names on it=Garrison, Love, and Neal Young.' , She commented she knew Garrison and Love- and Snodgrass asked how long had she known these .men, would she work for him, and did she think she could persuade them to , carry, her as a "passenger, without payment. .At,first ,she refused the job and Snodgrass drove -her home .that; ,evening, where he spoke to, her brother. Samuel Lewis 'and, Smith, agreed to work. The next day, again at,the motel, which Snodgrass used as an office, -he' spoke to Joyce several times ,trying ,to convince her to accept the work. 'In the end she acquiesced . In the' course of <their various conversations, some in the presence of her brother and Smith , and some with the two of them alone, Snodgrass spoke of drivers Garrison , Love,, and Young and "said that two,of them he knew belonged ;to, the ' union, which was Lane Garrison and Neal Young, but he didn't know about Parker Love, whether he , belonged to the union or: not. But said that +6 would like to get something on him because of his 'relations,- I don't recall, , who he , said, was with the Company .. He said that they were trying to , get rid ,of most of them that were • in the Union." At one point, with Lewis still hesitant about changing jobs, Snodgrass told her he would pay $75, a week, more than she was -earning; Lewis mentioned the fact Garrison, at least, had once carried her free. Snodgrass, begged her, on- his knees- according to Lewis' testimony-at least to ride with Garrison, and, that if she succeeded in "catching " him he would give her a $25 bonus. She finally consented, provided -she could first give 2 weeks' . notice to the Inn; she changed her mind and started work'on July 9 instead. ' While Snodgrass, denied having spoken about the Union, there is^ nno. dispute concerning what he'rtold her to do and how , the checking system he used with these three persons operated . He selected certain - scheduled runs on which par- ticular drivers would be working, and had Lewis ; together with Alfred Smith as a' supporting witness, ride from, one designated bus stop to another. At the terminal point he and,Samuel Lewis,'or sometimes Samuel alone , met Joyce and Smith as they alighted, the. men at the end of the run functioning as further .witnesses to her ri de. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,Lewis. had been:a regular passenger ,.,between Florence and Myrtle Beach for 6 or r7 years:and, knew, both, Garrison and Love•ias friends; (she' :had recently spent several weeks in the hospital- and Garrison had, even paid..her.a' sick call once:or twice there..,, Snodgrass told Lewis -to.-tell Garrison she t'_-was, on' her ,way - from Florence to Myrtle Beach -for: medical treatments and because she: was short,.of funds, wished to be, carried free. ..She, made. this appeal and the driver carried her, without charge. Also' as preciselyinstructed' by Snodgrass, she requested Garrison to. speak.to Parker Love 'and,to try to persuade him also td extend this: help to her: It, seems; Garrison) andh(:Love alternated days on this route. . Garrison had no opportunity to speak to Love, and, the next day, following- the 'same'routine7 Lewis made the same appeal -to' Love,_ who xalso-•carried her free. This' went on for 4 days; each of the drivers. obliging her ithus twice. Garrison also gave' Lewis a third free ride, although at the hearing .she recalled .it only,, -vaguely. After 'each incident, Snodgrass drove 'the three :helpers- back to his hotel room in Florence where he dictated a report for -Lewis, to write and- sign, and called Batts, the Respondent's supervisor of all, drivers at the! central office ,in Charlotte, to report his activities. '. Lewis also testified that when she wrote her, report on,, Garrison, Snodgrass-.gave her the $25 bonus heihad promised. ' In: the several weeks following Lewis' rode with a number, 'of other drivers, always' pursuant to precise instructionsrfrom Snodgrass in 'further, attempts to obtain 'free transportation. Again- hei- testimony as to what Snodgrass said when directing her must be considered..,When arranging for her. to--ask Neal Young for a free ride, Snodgrass,said "that he wanted Young -real bad .:.' . He said that he belonged, to the Union."- She rode ,three. times with this man, but, never ' asked for free passage, because, as she testified, she did not think he"=would agree. She did report him for speeding. When back at the motel to report, she heard Snodgrass telephone Batts and say that.asto •Y,oung)'it was "no go." Lewis also rode three times ,with Lawrence Meissner. Meissner had filed a charge with the Board sometime earlier;;accusing the Company-of discharging him in violation of Section ;8(a)(3) of the statute ; he had been reinstated pursuant to a settlement agreement- late in 1964. As- to Meissner, still - according to Lewis, Snodgrass "told me to try to get a free ride'that'he was the' vice president of'the Union." Every time Lewis; asked •Meissner'to 'carry her free, he either 'bought a ticket for' her-out'of his 'own.pocket-'or gave hei the money'to purchase a- ticket at the bus station. Once, when reporting her failure' to' obtain' a free ride with this man, Snodgrass told Lewis he was to receive''a $2,000 bonus if he could trap this man, and promised- Lewis $100 extra for her effort if she succeeded. Snodgrass' also had Lewis ride with Cozart, agairi- expressly to try to- obtain -a free ride, telling- her "he was one of the - big men in the Union." She tried three times and on each occasion he refused, and told her he knew ' she' was a ' company checker: Snodgrass gave her similar instructions respecting 'dr'ivers Barnes and Rogers; always that she should try for free passage. By this 'time, according to Lewis, word had' passed among the drivers and she replied it was futile to- try further. ' She once rode' with a driver- named' McDaniel, but at the end of the run Snodgrass told her "he didn't want-him." - Snodgrass told her' to ride with a driver 'named Smith, and she, did, but it then developed the wrong man had been checked. When she returned as usual to the hotel Snodgrass told her it was Shelley Smith instead, the'man with the moustache, he had wanted, liecause'Shel- ley "was in the Union." None of these other drivers-fell for Lewis' line. "Only one other man, Carty, carried her free once, and she -reported`- formally on' him as she had done for Garrison and Lane. Snodgrass ,took her detailed statement- on Carty's misconduct also, Lewis worked for about ' 3 months; ' but not continuously. 'After the first few weeks, she checked for smoking by drivers, railroad crossing stops,' courtesy toward customers, drinking' on the job, and things of that kind. She said that overthe entire period she was paid for only about 6 weeks of work. ' -Samuel Lewis, the young brother, also worked for 3"months,'on and off, some- times earning $75 per week, sometimes less. He testified that Snodgrass started b' telling.him to check on the' drivers he named as to many aspects of the work, but that "the main thing was to catch' the drivers." He also said that Snodgrass told him Garrison was "union," but that- he was not sure about Parker Love. There was even talk of the-possibility Parker Love might be related to'a Mr. Love, the president of the Company, and therefore nonunion.- He checked a number of men but discovered only minor violations of the rules, never'obtaining a -,free ride. Before boarding Meissner's bus, Snodgrass 'said "we hard ' to catch Meissner, he was the vice president of the Union, and the one we wanted." On one occasion QUEEN CITY COACH COMPANY 209 he and Alfred Smith, the friend, weie directed to ride with Neal Young, Lewis going in one direction and Smith returning. They crossed signals and each drove the wrong direction with another driver. When they were back at Snodgrass' hotel room Snodgrass said "we didn't want those people, they weren't the ones that they sent me out to catch." Lewis said he did not have to write a report after this trip because of the mistake. Snodgrass has worked for other bus companies in the past, or for organizations engaged in general checking services for such employers, always doing this type of work; more recently he had been employed by sheriffs in Louisiana on inves- tigations. He started with the Respondent on June 1, and the basic purpose of his testimony was to deny explicitly that he ever asked either Lewis or the other two male assistants to attempt to "catch" any particular individual, or told them anything about union membership or activities. In fact, he denied flatly having been told of union activities by company representatives or even knowing any- thing about it or its participants in this Company. He also said he did not prom- ise to pay any bonus to Lewis for her work. Snodgrass' testimony is that his was a routine check of employees-including drivers, station men, and other catego- ries-to assure that all company rules were being observed and that nothing improper in any fashion went on. He did telephone Batts, who had hired him and who received his reports, immediately after some of these scheduled checks, and explained this was so the head office could quickly obtain the men's trip reports or logs and verify the checker's reports of wrongdoings against the drivers' regular turn-ins. Snodgrass' testimony is supported by that of Batts, who also denied having asked the investigator to spy on any particular employees or men- tioning the Union or union activities to him in any fashion. I credit the woman. This was no routine spot check of employees such as nor- mally may be cariied on among employees who, because of the nature of their work, operate alone and in distant places. Roving inspectors throughout public transportation systems are an old institution familiar to both the public and the employees. And indeed the Respondent contracts for such services with an estab- lished organization-called Butler Associates-which checked its employees in the past, continued to do so during the summer of 1965, and does so even now. The system of surveillance established by the Respondent through Snodgrass in this instance was quite different, and of itself suggests a more pinpointed objec- tive than mere general checking. Every ride that Joyce Lewis took was pursuant to specific instructions by Snodgrass, aimed at a particular drivel, and accompa- nied by at least two, and sometimes three, supporting witnesses. An employer whose ordinary checker discovers a delinquent employee and honestly discharges him for misconduct hardly needs such overpowering proof to justify his action. And once having uncontrovertible evidence-here the signed statements of all the three checkers-he would be most unlikely to discharge drivers who had per- formed satisfactorily for over 24 years, as was true of both Garrison and Love, without at least confronting them with the charge. All Batts told these men when he dismissed them without advance notice, or any opportunity to explain or request clemency, was that their "services were unsatisfactory." At the hearing Snodgrass said he was not interested in particular individuals, but the fact remains he did select special runs with an eye to who was driving during certain hours; he literally admitted having selected Garrison in this fashion. And he did not deny having told Lewis it had been a mistake to have checked on one Smith instead of another, or the two boys-Smith and Lewis-to make no reports after a certain run because they had failed to board Neal Young's bus as instructed. Snodgrass' explanation for wanting Lewis to make a direct attempt to ride free with Garrison was that she had told him of such favors in the past by that one driver. But this cannot offset the cumulative testimony of both Lewis and her brother, none denied by Snodgrass, that he also asked her to make the same appeal-feigning illness and need-to prevail upon a number of other named drivers for free passage. I cannot view such a program as mere inquiry into whether or not employees were working properly. A healthy-minded supervisor, and this is all an honest checker is, even using aliases, does not scheme to provoke misconduct to the employee's detriment. He even told Lewis to plead with Garrison to appeal to Parker Love to extend the same courtesy to her and thereby broaden the net for a greater catch. A bad apple is removed from the barrel, not rubbed against the good ones. Unless, of course, as Lewis and her brother testified, Snodgrass was not sure, but only believed Love was in the Union. 243-084-67-vol. 159-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is a case of entrapment, pure and simple. Snodgrass was not asking him- self whether the men were honest; he was expecting, and hoping they would weaken to the woman's appeal-partly out of sympathy and partly out of friend- ship-and fall into the snare. It is against the format of events that the credi- bility issue between the lady and the investigator must be viewed and their rela- tive integrity-or honesty as witnesses-appraised. Lewis was confused more than once in her extended testimony. At one point she said it was she who first mentioned knowing some of the drivers; elsewhere she indicated Snodgrass asked her. She also` vacillated as to precisely at which point in their conversations he spoke of the Union, and exactly when or where she changed her mind and decided to accept the job. Clearly, Snodgrass spoke to her several times, as he himself admitted, within a short period, in the attempt to persuade' her to help him, and if in the recollection of many talks she confused one with another, the matter is not of great moment. What is more important is the fact that despite long and intense cross-examination, she held firm to her tes- timony that Snodgrass told her who the prounion drivers were and that his reason for selecting some instead of others was the Respondent's need for dismissal cause. Snodgrass was more articulate and precise in his story. He came straight to the point and said it was he who asked her, before anything else, did she know any of the employees of the Company. And he explained why this was his pri- mary concern: And I did first ask her, as I always do whenever I interview employees, if they know anyone who works for trailways-Trailways? And the reason I do this is because they could have a brother or someone who is a driver or something and if they told their brother, then word would get around that I was checking on them and it would-wouldn't be very effective. She told me that her brother and a friend of hers may be interested, and also I had asked her if she knew anyone who worked for Trailways, and she told me that she knew some people that worked for Trailways. And I asked who these people were? And she told me, and then she named Lane Garrison and Parker Love, and she told me that she had known Lane Garrison and Parker Love for a number of years. If Snodgrass' intent at that moment was only to do the job that he always does, as he said at the hearing, he would have discarded this woman as an assistant then and there. She fell precisely into the category which under normal checking opera- tions is completely disqualified. She answered him that she knew some of the drivers 6 or 7 years, and even added Garrison had once or twice, years ago, given a free ride. He knew, and did not care, that one word from her to a single driver would have alerted all to what was about to happen. He had to appeal to her several times before she agreed; his attention to Garrison must have been very great indeed for such a drastic departure from his fixed rule. I must, and do believe that he fell on his knees and begged that if she did nothing more would she please try to fool Garrison at least once. The Respondent did not file a brief after the hearing, and its counsel made no oral argument on the record. His examination of the witness, however, constitutes an argument that Lewis is not to be credited because her participation in the decep- tion leading to discharge of her friends brands her as unworthy of belief. Asked again and again why she did this, she could not answer but sat mute. Company counsel also drew from her the admission that during an interview in the hotel room with Attorney Ral and Snodgrass after the critical events, in answer to the lawyer's question whether she had received any bonus for this work, she answered no. The frailties in Joyce Lewis' character are to be judged against the nature of Snodgrass' activities revealed on this record. She lured her friends into wayward- ness; she was not nice that day. No need for classical allusion here; acceptance of gold for selling out friends marks the scoundrel as of old. In extenuation, she lives with an invalid father, a mother who earns $146 monthly, a young brother, and two teenage sisters. Snodgrass offered her a raise, and bonuses to boot. But for her fall from grace in this instance, all that appears is that her worldliness extended to the dusting of hotel rooms and the making of beds. It is different with Snodgrass. Deceit, and even illegality are his stock in trade. He taught the woman to lie and at the outset built fraud as the touchstone of their joint activity and relationship. With Supervisor Batts assisting, he attempted to befuddle the question of exactly who her employer was. And when the three checkers, always paid off in cash, asked about social security, or other salary deduc- QUEEN CITY COACH COMPANY 211 tions required by law, he told them to look after these matters themselves. Between such a sharpster , on the one hand, and a chambermaid on the other, come the words of the Lord: "Thou shall . . . not put a stumbling-block before the blind . Leviticus, XIX, 14. If moral fibre be a standard of credibility in administrative hearings, I find Frank Snodgrass the less credible of the two. On August 6, after all the testing of the busdriveis had been completed, John Ray, lawyer and full-time employee of the Respondent , appeared in Snodgrass' hotel room in Florence to write out in longhand a statement he then had Joyce Lewis sign before a notary public in town . It is a brief and precise affidavit, and was received in evidence . Lewis sat in the room facing Ray and Snodgrass as the law- yer wrote . At one point he asked her how she had been paid and had she received any bonus for checking on particular individuals. She answered him no, but at the hearing testified that as the lawyer spoke , Snodgrass looked straight at her and with a wink of the eye signaled her to deny the bonus he had given her for catch- ing Garrison , and that she complied. She also denied from the witness stand the accuracy of a statement Ray wrote in the affidavit to the effect she had "been rid- ing free with Lane Garrison between Florence and Mullins for 7 or 8 years." She insisted throughout the hearing that in fact, as far back as 7 years, Garrison had carried her free only once or twice and never again urtil Snodgrass showed up. The lawyer took liberties with whatever he was eliciting from Lewis in that room. He also wrote , for her to sign; "As a checker I have ridden a Queen City Trail- ways bus driven by L. R. Mcissner on two occasions without being charged a fare." This is not what she told him , and Ray admitted as much at the hearing. He testified: "I understand that Mr. Meissner paid Miss Lewis' fare ." Twist one, twist two; it seems Lewis just signed whatever Ray wrote down . I believe her oral testi- mony, that she had only ridden free with Garrison years ago . As to the wink, which Snodgrass denied, it must be remembered that he had bent her to his will, and that the entire relationship he had established was one of deception, with things regularly passing between them under the table, as it were. If lying to underlings was the method he taught her, deceiving superiors only fulfilled the pat- tern. I saw the woman testify; in considering the inherent probabilities of the moment, all the related facts of record , and the demeanor of all the witnesses, I believe her.' That the Respondent set out to discharge Garrison and Love because it was con- vinced they were members of, or at least favored the Union, is thus clear. Snod- grass' admissions to Lewis are direct evidence . The Company knew, at the same time, that driver Carty also had fallen under the woman's appeal and carried her free. He was not discharged ; instead Ray admitted no one ever talked to Carty, or criticized him at all for the same offense committed by the other two men. The lawyer explained the disparate treatment on the ground "it was felt . . . that it had been a mistake or any other number of reasons when he would not ride her free again." Had he permitted Garrison and Love to explain he might have felt the same about them. If it was truly the misconduct of carrying a passenger free which offended the Respondent , there was really no reason for treating Carty differently. On the record in its entirety I conclude that the Respondent used the errors of these two men , brought about by the Company's planned entrapment , as a pretext to color their discharge , which was in fact motivated by an intent to discourage their union activities and the activities of its employees generally, and thereby violated Section 8(a)(3) and ( 1) of the Act.2 C. The discharge of Floyd Byrd Byrd, 3 years an employee, was discharged on November 1, 1965. A month before he had returned to his bus terminal at Fayetteville, "running hot" on his last run ; he arrived before 1 a.m . instead of at the scheduled time of 1:30. It was 'A historian recently wrote: It is sometimes essential for a state, even a democratic state, to undertake clandestine operations . . . but, when such operations are undertaken, it is important never to forget that the relationship between an intelligence agency and its instruments tends to be a corrupting one. The agency has a natural desire to control its operations as completely as possible and therefore a natural preference for compliant people. If people are not compliant to begin with , they are made so. Arthur H. Schlesinger, Jr., A Thousand Days, 230. The Coachman's Inn, 147 NLRB 278. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his misfortune that the motor, in the rear of his bus, was on fire when he reached the terminal, the readily available but long unused fire extinguishers failed, and the fire department had to be called. Luck compounded his ill destiny when, as the bus filled with smoke, Byrd ran back among the seats and discovered two soldiers asleep; they had boarded the bus to return to camp at Fort Bragg but slept through- out the trip both ways. Although it is nowhere suggested the driver was at fault for the momentary danger to the soldiers, the excitement seems to have centered attention upon the incident and he was suspended immediately. Following an investigation by the Company, when the various employees who had been present, and the supervising manager were questioned, he was called to Charlotte, and, with the usual cryptic words-your services are unsatisfactory-sent home for good. There is belabored testimony as to exactly what moment Byrd reached Fayette- ville that night, all of it of no material importance. Give or take 5 or 10 minutes he was definitely back before 1 o'clock. It is equally clear that he was supposed to leave Fayetteville at 12:05 but left before that time, that the distance is 30 miles both ways, that there does exist a printed, schedule showing 12:55 as the time of departure from Fort Bragg for the return run, that Byrd left,there much earlier, and that the alarm reached the fire department precisely at 1:02 a.m. Byrd also admitted he was aware of the existing schedule for that run, which called for arrival of the bus at fixed points along the route at specified times between 12:05 and 1:30 a.m. Batts, the night supervisor, said he discharged Byrd essentially because he had returned too early on his last run that night, and that he delayed doing so from September 23 to November 1, because. it took some time for the Fayetteville dis- trict manager to check the facts with other employees, and because he, Batts, had been on vacation for a period during October. Against this there is the testimony of Byrd, and of another driver, Sessons, that it was not unusual for a driver to return a little "hot," or early, on such a last run, as there seldom were passengers of any significance at that hour of the night. Regardless of what minor deviations from the schedules may have been permitted in the past, there is no basis for find- ing the 30 or 40 minutes accelerated return of Byrd to have been no more than an ordinary occurrence. To prove that all this was not the real reason for his release, Byrd testified that in the fall of 1963 his divisional manager, Marvin Little, asked him to listen for union talk among employees at the Fort Bragg busyard and station and to report back anything he heard. Byrd refused, and, as he recalled, Little dropped the mat- ter with simply saying "okay." Byrd also quoted Manager Little as saying to him sometime in September of 1964 ". . . you are messing around with the wrong fel- low, . he will get your job if you don't watch out." Byrd recalled that Little also used the phrase "the big fat boy" as synonym for the "wrong fellow." Byrd, explained at the hearing that he took the language of his superior at that time as a reference to Meissner, the driver who was then in layoff status and who had filed charges, as yet unresolved, against the Company, and that his reason for the inter- ference was because the evening before, as he sat at a cafe with Meissner, Bobby Pulley, a dispatcher, "walked by and paused." Meissner, who was also a witness, is a stocky, man. Little denied asking Byrd to inform on union talk of a fellow-employee, but, in view of the blatant activities of Snodgrass in 1965 and of other company repre- sentatives in 1964 leading to cancellation of employee elections that year, I credit Byrd on this score . I cannot agree, however, that the complaint allegation of ille- gal motivation in this instance has been proved by substantial evidence. Little was not shown to have been greatly disturbed when Byrd refused to spy on others. And at best the ambiguous remark, 14 months before the discharge, about the "wrong fellow," or "fat boy," is too tenuous a form of evidence to offset the plau- sibility of the asserted affirmative defense. However clear an employer's opposition to self-organization among employees, it cannot be said that discharge of anyone from among perhaps 200 men, on its face for what must to be called at least a reasonable ground, automatically becomes a violation of Section 8(a)(3) of the Act. There must be persuasive evidence of intent to select that man for discrimi- nation. That burden not having been met in this instance, I shall recommend dis- missal of the complaint as to Floyd Byrd. D. The discharge of Horace Wilkins Wilkins worked as a driver about 4 years also, out of Fayetteville, and his dis- charge on August 9, 1965, somewhat parallels the story of Byrd. Driver Thomp- QUEEN CITY COACH COMPANY 213 son, president of the union local formed in April, testified Wilkins became a mem- ber before the discharge but that he had no reason to believe the fact was known to the Company. In the "latter part" of 1964, Wilkins was subpenaed,to appear at a Board hearing involving the alleged illegal discharge of a driver named Beverly. He testified that one evening about that time Divisional Manager Little asked ". what was I doing talking to Ronald Beverly,'the previous night, up town." The .next day Wilkins told the supervisor "the reason Ronald was talking to me and asked me if I knew the hearing had been put off." 'Little answered, still according to Wilkins ". . . I want you to know that you are,going to have a hard enough time keeping your own job, much less trying to help somebody keep theirs." In March of 1965 Meissner asked Wilkins to act as a union observer at the imminent election and he said yes. Wilkins testified he then saw Meissner in con- versation with the dispatcher, Rufus Home, and that Meissner later told him it would be necessary to obtain Little's permission for Wilkins to have time off for this purpose. Wilkins did not hear what' went on between Meissner and the dis- patcher. And finally, Wilkins also related how "in the latter part of May or June." Little said to him: . that he wanted to let me know that he wasn't no FBI agent or nothing, but he had learned through a friend of mine in confidence that I had said that I had learned to keep my mouth shut, and leave everything else alone, just keep my mouth shut, and do my work." The secondary character of Wilkins' testimony intended to impute knowledge in the Company of his willingness, in March, to act as union observer, makes it diffi- cult to find that in fact the Respondent then learned of his attitude. If Wilkins spoke truthfully in quoting his manager, it would,appear the Company believed him to be sensitive toward: the Union at least in late May or June. Little contra- dicted the driver as to. these conversations, and while I would be inclined to credit Wilkins, in view of the pattern of company conduct, I think it unnecessary to make precise findings about such talk because, even assuming Little said these things, the total evidence respecting this discharge does not suffice to support the complaint allegation. The defense here' is that Wilkins was discharged. for too many accidents. In the 5 'years he drove he said he had, seven accidents, all "small." The last two occurred on June 26 and August 4; he was 'released 5 days later.' Who was at fault, how much damage resulted, what are the Company's reporting rules and did Wilkins comply with them after the first accident these and like questions pro- voked much testimony, all of it inconclusive, vague, and exaggerated in both direc- tions. Batts said both were accidents from "the rear," and therefore bad for Wil- kins. The driver explained how things happened, but a fair appraisal shows some admissions by him that he did hit each of the two passenger cars involved from behind, or at least obliquely. He said there were no personal • injuries and no noticeable property damage in the first; the company officers testified, and I have no reason to disbelieve this, that the accident cost $675 in settlement. A little girl was hurt in the second, and the Company paid $775. The Respondent is par- tially self insured. Wilkins reported the, June 26 accident to his terminal dispatcher as soon as he returned from his run on a Saturday night, but the divisional man- ager learned of it only Monday morning. The assertion that Wilkins was espe- cially delinquent in not reporting the accident to Little immediately is not at all established by the vacillating testimony of the company witnesses. - What is impor- tant to the issue here-is that he was suspended from work, called to Charlotte to be interviewed by the company lawyer, lectured to be more careful, and returned to work on July 7. He was placed on probation for 6 months as a warning. A month later, after his last accident, he was recalled to' Charlotte, and, with- the usual "Your services are unsatisfactory," discharged. In further, justification of the discharge for cause, Batts, who made 'the decision, said he considered the driver's entire record, and that it included seven accidents before these last two in June and August, and that the man had been put on pro- bation four times during his period of employment. The question is whether the evidence in its entirety compels an inference of ille- gal motivation. Unlike the case of Byrd, the supervisory statements indicating a concern over the employee's prounion attitude come closer to home-only late May or June, instead of 14 months earlier. Moreover, it was shown that another driver-Helms-in' 1963 was involved in an, accident in which a woman was killed and $15,000 of damages caused to his bus. He was not discharged. The Com- pany's explanation is that he had to be retained as a possible witness in the event of a negligence suit trail, and this is not an impossible idea. ' 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In any event, there is also evidence that other drivers have been released in the past because of bad accident records, and it cannot be gainsaid that on its face the discharge of Wilkins immediately after a second accident in so short a period, while on probation for the same type of error, seems perfectly proper action. It is very significant that only 1 month earlier the Company overlooked as costly an accident with no more than a warning. Under the General Counsel's theory, and as the evidence stands, the Company was no more opposed to him then than a month later. If Manager Little's statement in early June that he was pleased Wilkins had decided to "keep his mouth shut" proves union animus against the man, the June 26 accident provided perfect pretext for discharge. It is a matter of balancing the evidence. Even considering the Company's opposition to the Union generally, I conclude that this allegation of the complaint of illegal discrimination as to Hor- ace Wilkins has not been proved by a preponderance of the evidence, and I shall therefore recommend dismissal of the complaint as to him. E. The discharge of Thomas Horne Horne started with the Respondent as a part-time driver in January of 1963 and went to full-time status in June of 1964. He worked out of the Augusta terminal, 155 miles away from Charlotte, under Manager Guy Wilkinson, and became a member of the Union a month before his discharge on August 27, 1965. Without any warning of imminent release he was told to travel to Charlotte to see Batts; there, with Attorney Ray also in the office, Batts said no more than that he was discharged because his "services were unsatisfactory." It was not until the start of the hearing, 5 months later, when' Batts was called as the first witness by the General Counsel, that Horne, or, anyone on his behalf, learned why he had been dismissed. Batts testified Home had long been an impossible employee, and he listed a se- ries of faults: "Many, many complaints . would not follow instructions prop- erly . . . in the 12 to 14 months that he drove, we got as many as 12 to 14 .. . complaints . . . an accident ... completely avoidable . . . reckless driving . speeding . . . running 'vehicles off the highway . a man wanted a charter bus and he requested specifically that driver Home not be allowed to drive his bus .. . reporting late fof work . . . incorrect driver's logs . . . 40 minutes late in meeting this charter group .. . Batts also said reports on Home's failings had been coming to him "most always, 8 or 10 months I would say," and that finally they "reached a point by the nature of the last complaint, there was no choice but to discharge him because of performance and his duties in my opinion were not satis- factory to be a driver for our company." As will be detailed below there is no significant dispute as to the facts concerning the mistakes and violation of company rules in Home's history with the Company. As to some of the incidents, Batts spoke of them repetitiously and in varying descriptive phrases so as to create an impression of greater number. Home took issue with the number, and at times with their severity; he candidly admitted, however, the substance of the clearer ones. In view of the real issue to be decided, the minor frills in the story are of little meaning. The theory of the complaint as to this man is that nothing significantly different was shown in Home's record to explain persuasively Batt's determination, at that particular time, to reach a discharge decision which, despite his knowledge of all previous reports, he did not deem proper before. And to prove that the real reason, instead, was an intent to discriminate against this man also because of his union activity, the General Counsel offered the following testimony by Home. In January 1965, a month after Meissner, the man who filed the charges against the Company, had been reinstated, several men were talking with him in the termi- nal baggage room. When Meissner left, Manager Wilkinson said, according to Home, ". . . that man is an enemy of mine and an enemy of the Company, and if I catch you 'talking to him, you are going to be working for him." The manager denied having said Meissner was an enemy of the Company, or that if any employee talked with him he would be working for Meissner. As he recalled it, he said the man "used to be a real good friend of mine, but . . . acts now like he is an enemy. Home went on to relate how shortly before the March election Wilkinson asked what did he think of the "hearing and the election that was coming up," with him answering he was "satisfied." Again in the last of May or the first of June, the manager "said to me in reference to an accident I had in 1964, I thought that you were a good company man and told me that he went to bat for me and he said QUEEN CITY COACH COMPANY 215 if he had thought that I had not been a good company man, he wouldn't have helped me any." As to this conversation Wilkinson testified only that he spoke of Horne having been a good company man, he was becoming dissatisfied because the man could not obey instructions. The truly significant part of Horne's testimony concerns a conversation which took place "in the middle of July" in the terminal after the Union had posted a notice listing the newly chosen officers. There was talk of people paying $5 for a union card, and Wilkinson asked Home how much he had paid for his. As Horne related, the manager then said he would give the men cards himself. that "the com- pany didn't recognize the union. And that as far as he was concerned, that they were fighting a losing battle." Wilkinson also told Horne, according to the employee, "that my name had been sent to Charlotte and said your name has been sent to Chailotte along with three others, and he said E. L. Cozardt a driver had sent it in. And the man in Charlotte knows all of the names of men in the union." Here again Wilkinson's version differs. Someone had added his name to the list of union officers, and he jestingly suggested he would enter the business himself, organize the employees, and call for $5 for cards payable to ham. He said it was all a joke, and denied telling Horne his name had been sent to Charlotte, or that any person in Charlotte knew who the union men were. It was at this very time-mid-July-that Snodgrass, at Florence, North Carolina, was explaining to Joyce Lewis just who the union drivers were. He could only have learned from the company authorities in Charlotte who hired him. His very activities aimed at ferreting out the prounion personnel, even by creating grounds for discharge, lends credence to Home's testimony against the denials of the divi- sional manager. Further, the basic opposition of the Company toward the union campaign altogether in itself supports a finding that Wilkinson would say the Union was a "losing battle." His questioning of Horne as to how he felt about the election, or even the earlier statement that persons associating with Meissner would be working for him-a broad hint they may have to leave the Company-are at best tangential and cannot strengthen the conclusion, which I do reach, that the Company had Horne singled out as favoring the Union and marked for special attention. Mere inquiry of one out of many employees as to how he "felt," shortly before an elec- tion, with the ambiguous answer "I am satisfied," adds nothing to this aspect of the case, and the threat that Meissner's associates might be in danger, was not directed to Horne individually, as I read the man's testimony. The question here is whether the Company discharged him when it did because of his own union propensities. Considering all the facts of record, as well as the demeanor of the witnesses, I credit Horne and find that the manager told him his name, as one of the union drivers, had been sent to the main office in Charlotte. By this statement Wilkinson committed an unfair labor practice in violation of Section 8(a)(1) of the Act chargeable to the Respondent. Such clear proof that only 1 month before the dis- charge the Respondent told Horne it was keeping a special eye on him as unioneer, and by clear implication threatened him in the advice, coupled with the simultane- ous illegal discharge of Garrison and Love that same month, on this record con- stitutes a very persuasive prima facie picture of illegal discrimination against him also, as alleged in the complaint. The case at this point leads to appraisal of the affirmative defense of discharge for cause. It seems that about August 23, the representative of a social group arranging a charter of buses told District Manager Wilkinson he did not want Horne as a driver, and that the manager sent a note advising Batts of the fact. Batts testified that this note, quoting the customer as saying Horne was "no good" and "just didn't please them at all," caused him to reveiw the driver's central office file, which had in it 12 other communications from Wilkinson, and that therefore on the basis of Horne's total record, he was discharged What lay at the bottom of the customer's displeasure was that the year before, when two buses carried the social group for a 1-day beach outing, Horne transferred the members' personal belongings into a single bus which remained at the beach for their convenience, and drove his own to a garage for brake repairs which could not be effected nearby. Batts added that a second note from Wilkinson, dated August 13, further prompted his review of Horne's record. In this one, sent to Charlotte "for your information," the district manager wrote that 5 days earlier Home had "passed a lot" while driving in "heavy traffic, and had caused several cars "to take to the shoulder and one to the ditch " According to the testimony of W. T. McDaniel, 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a driver who on the 8th had ridden together with Horne on a two-bus charter, this matter came to the attention of Wilkinson because, on the 13th, when McDaniel "happened to be up at the bus station," the manager said "he had heard some com- plaints on Mr. Horne for reckless driving. And asked me what happened on the trip to Atlantic Beach." Of the various notes, all from Wilkinson to Batts, the only other one arriving after "mid-July" is dated August 10, and says that on one run Horne had failed to clean the restroom facilities on his bus at'the "specified time or location as required. The remainder' of the file notes relating to Horne span the period November 2, .1964, through July 13. Some involve relatively trivial matters: a reminder to warn young people not to stand on bus seats; another to arrive 30 minutes before starting time and not later; failure to fill out his trip log properly; neglect in not accepting three pieces of express freight on one trip; forgetting to turn in a log on one occasion; parking his personel automobile "in the middle of the parking lot" instead of "in an out of the way spot"; neglect in not "checking in advance" for a proper lunch stop when carrying a group of preachers.' :1"' The much later coriclusionary defense assertion by the overall supervisor of drivers that the August-23 report by a customer for a charter busdriver other than Horne was the provoking cause which led him to reexamine the total record with the result that the driver was then summarily discharged without warning, is unper- suasive on the record as a whole. Why any of the other like reports from Wilkin- son should not have had the same effect is unexplained. There was nothing par- ticularly pressing contained in the last report-indeed it only cast reflection upon something Horne may have done wrong a year earlier. In consequence, therefore, he was bemg released for an error a year old. Not does the August 13 slip reveal so grave an offense as to distinguish it meaning- fully from others covering so long a period. While it did deal with a more current aspect of Home's work, it is highly significant that on this matter of having early in August passed other cars carelessly, and even causing one or two to drift to the shoulder of the road, the incident did not come to the attention of the divisional manager in the regular course of his supervisory duties. Instead it was he, Wilkin- son, who searched out further fault in Horne 5 days later by questioning McDaniel as to any reckless driving Horne may have committed. The Respondent's apparent indifference to all the past notes calling these matter's to Batts' attention strongly indicates that errors of the kind shown on the exhibits- especially the-really minor things such as incorrect drafting of drivers' logs or improper parking of personal cars-reflect the normal failings of its employees generally and disadvantage which, absent extraordinary reason to react otherwise, the Company simply accepts in the regular course of business. This inference is especially warranted in the light of Batts' failure, only the month before Horne's name was sent to Charlotte, to do anything about two other rule infractions by Horne. In June he overslept in a hotel in Columbia where he was scheduled to pick up a long run at a specified hour; in consequence a bus load of passengers sat and waited for about 30 minutes before continuing their trip. [This was not one of the mistakes reported in writing by Wilkinson to Batts, and the record does not make clear whether Batts was aware of it when he discharged Horne or first learned of it when later the man's past record was exhaustively examined for purposes'of defending against the complaint in this proceeding.] And on or about June 20 Horne returned an empty bus from Memphis at his home terminal; he was required to stop over in Atlanta and rest at least 8 hours. He stayed there only 1 hour instead, and falsely reported he had taken the rest period and submitted a bill for hotel lodging. Although this incident was reported in writing to Batts on June 21 he ignored it. I do not credit his explanation that he simply did not see this particular report. Of all the wrongdoings charged to Horne this was the truly serious one, for it coupled disregard of ICC safety rules with a false claim for reimbursement of hotel expenses. It is therefore the one which both Wilkinson and Batts would particularly have acted upon if in fact the Company's concern respecting this driver had been his quality as a workman. Batts said all reports of this kind from district managers reach his desk, and that he underscores the drivers' name after reading each one so that his secretary can file them correctly. He took the emphasis off the manager's note of June 21 by saying that it led him„ late in August, to look at the log, or expense sheet Horne had filed in June, and that it was only then that he discovered the false report. But Wilkin- son's note shows on its face that the man had not stayed in Atlanta and submitted QUEEN CITY COACH -COMPANY - 217 a bill nevertheless .3 Moreover, Batts testified "if he [the divisional manager] feels that the man is falsifying his expense ... he should do something, . . ." Wilkinson, too, did nothing about this one. --, -- - ,Clearly, then, it was not the relatively minor deficiencies in Horne's work per - formance brought to his attention in August which , caused Batts to take such a, close look at his past record ,-and to discharge him in so offhanded a manner: In the light of Batts' - demonstrated animosity toward drivers Garrison , and Love' because of their union activities during the very month of August , and of Wilkin-- son's statement to,Horne in mid-July that his name, among others, was known to the main office as among those who favored the Union , I can only, conclude that when, on August 27, the Respondent released Home it utilized his old record, never deemed sufficient reason for discharge, as a pretext to cloak its union animus against ,him also. On the record in its entirety I find that by the discharge of Thomas - Horne the Respondent violated Section 8(a)(3) and ( 1) of the Act. F.-Surveillance • On the , afternoon of January 20, 4966, 5 days before the hearing opened ,in, this proceeding, Williamson, attorney for the General' C-ounsel,. was , interviewing ,sev- eral employees in preparation for trial at a motor lodge in* Fayetteville . About 30 minutes after he started, Bob Taylor, a regular company driver, arrived at the motel parking lot with Andy Barklay, shop foreman in the Fayetteville terminal, sitting; next to him in -his car.-' The two circled the parking lot twice, driving 'very slowly, and - stopped briefly;,behind the parked , car of- Wilkins, ,the :discharged employee who testified to the incident . He added that the motel room door was, open, that the men saw the foreman ,, and that they stepped out to look and, William- son waved at Taylor and Barklay. , It is conceded Barklay is a shop foreman; the evidence indicates he is responsible for repair and maintenance of buses and has 10 or 15, men working under him. •I-am,. satisfied , he is a• supervisor within the mean- ing of the Act. , • - ' • , Taylor testified he•drove through the parking lot at that time because he had an, appointment to meet a -friend- there, that he paused to_ examine a car because-he thought it might belong to his' friend,, but) that , he, did not find her. Both he and Barklay denied having seen either Williamson , or any of the , employees. • I. do not credit Taylor's explanation of his presence and slow ride in front_ of the meeting place when the Government attorney was speaking to employees to prepare for trial in this case . He said his friend was not planning to check into the motel , and that he though she might be in the motel restaurant , but he also said he did not enter the restaurant to see if she was there . Moreover, he admitted that that very eve- ning, when Williamson spoke to him at his home and asked what he had been doing in the vicinity of the conference , he, said nothing, about any appointment with a, -friend ., In the circumstances , it is a reasonable inference that Barklay was there to check upon the identity of"'any employees who might be speaking to the General Counsel's, representative. ' Such surveillance by,_ supervisors of 'union activities ^ by employees, or of investigation; in preparation- for hearing in complaint - proceedings, unlawfully restrains and coerces' employees inthe exercise of the ' rights guaranteed' by Section 7 of'the Act and constitutes an unfair labor practice in violation of Sec-' tion 8 (a)(1) of the Act. 'I find that by thus keeping Williamson's conference with the employees under surveillance Barklay committed an unfair labor practice, chargeable to the Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III , above, occurring in con- nection with the operations of the Respondent set out 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 com-, merce and the free flow of commerce. 3 In part the district manager's memo of June '21 reads as follows , Attached is a memo from Dispatcher R. L Ferguson stating that Thomas Horne did' not take his time off in Atlanta as required . Mr. Horne checked up with Dot Henry in my absence - and his expense form shots that he turned in for a hotel bill in-, Atlanta- and Memphis . He did not =use a hotel in Atlanta , according to this information 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease - and desist from such conduct, and to take certain affirmative action designed to dissipate its effect. The Respondent hav- ing illegally discharged M. Parker Love, Ernest L. Garrison, and Thomas Home, it must be - ordered to reinstate them to their former or equivalent position. The Respondent must also be ordered to make these employees whole for any loss of earnings they may have suffered a consequence of the illegal discrimination against them in their employment . Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the assessment of interest shall be computed in the manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2 of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging M. Parker Love, Ernest L. Garrison, and Thomas Home the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct , by District Manager Wilkinson's statement to employees that their names had been sent to the Respondent 's central office as known union adherents, and by spying upon the investigation activities of Govern- ment lawyers, the Respondent' has engaged in and is , engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 5. 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon ,the entire record in the case, I recommend that Queen City Coach Company, Charlotte, North Carolina , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their exercise of the right to self-organization or to join labor organizations. (b) Telling employees that the Company is aware of the identity of the union adherents and is maintaining a list of such names in its office, spying upon the investigation activities of Government lawyers, or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Amalgamated Transit Union, Local No. 1531, 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, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer M. Parker Love, Ernest L. Garrison, and Thomas Home immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the dis- crimination against them, in the manner set out under "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records, and reports, and all records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at each of its terminals in Charlotte, Fayetteville, Jacksonville, Wilming- ton, Greensobor, Asheville, and Rockingham, all in North Carolina, Augusta, QUEEN CITY COACH.-COMPANY 1 219 Georgia, Myrtle Beach, South Carolina, and Johnson City and Bristol , both in Tennessee, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 11, shall , after being duly signed by the Respondent's representative, be posted by Respondent inimedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, 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 Region 11, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith IT IS HEREBY FURTHER RECOMMENDED that the complaint be dismissed with respect to the allegation of illegal discharge of Floyd Byrd and Horace Wilkins. 4In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 5If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 11, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership by any of our employees in Amalga- mated Transit Union, Local No. 1531, or in any other labor organization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL offer M. Parker Love, Ernest L. Garrison, and Thomas Horne immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of pay they may have suffered as the result of the discrimination against them, in the man- ner described in the Trial Examiner's Decision. WE WILL NOT tell our employees that the Company knows the identity of union adherents among our employees and maintains a list of their names in our central office, spy upon the investigation activities of government lawyers, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. QUEEN CITY COACH COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Buildine, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Te!ephone 723-2911, Extension 302.