Queen City Coach Co.

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Queen City Coach Company and Harold L. White, an Individual. Case 11-CA-2684. July 05,1966 DECISION AND ORDER On November 18, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor prac- tices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision. 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 this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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 Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts only those findings, conclusions, and rec- ommendations of the Trial Examiner which are consistent with the following. 1. The complaint alleged that Respondent's Division Manager Marvin Little unlawfully interrogated employees Harold White and Lawrence Meissner about their union membership and activities and that Respondent discriminatorily discharged White on March 22, 1965, because of his union activity. The Trial Examiner found, and we agree, that Manager Little vio- lated Section 8 (a) (1) of the Act on March 16, 19, and 20, 1965, respectively, by asking employee Meissner how White stood, i.e., whether he was for the Union, and by advising Meissner not to act as a union observer in the forthcoming election. On March 20, Little asked White whether he was going to vote for the Union or the Com- pany and White replied he would vote for the Union. The Trial Examiner's findings that such conduct occurred were based on cred- ibility resolutions which we find no basis for disturbing. Accordingly, these findings are affirmed. 2. Three days before the election' conducted on March 25, 1965, Respondent's supervisor of drivers, Vincent Batts, told White that he i For about 2 years preceding the events in question , the Union , Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, had been attempting to win recognition as bargaining representative of Respondent 's driver employees An election conducted on April 14, 1964, was set aside on the basis of objec- tions by the Union as was a second election conducted on August 14, 1964. On April 2, 1965, the Regional Director issued a certification of results that the Union had lost the election of March 25 , 1965, in Case 11-RC-1925 , the representation proceeding 160 NLRB No. 19. QUEEN CITY COACH COMPANY 217 was discharging him for unsatisfactory work. Batts did not further explain his reason to White, but at the hearing Batts testified that he discharged White for "violation of cash fare rules," i.e., on four dif- ferent bus trips White failed to report and to remit cash fares to the Respondent totaling $4.05. The Trial Examiner found that Respondent discharged White because it had confirmed its previous suspicion that White was pro- union and intended to vote for the union at a scheduled election, and that Respondent used "palpably erroneous" reports that White was not turning in cash fares which he had collected as a pretext to conceal the discriminatory motivation underlying the discharge. We do not agree. Respondent employs a number of outside "spotters" and "checkers" to ride its buses for the purpose of observing whether the bus drivers are properly performing their jobs. For the past 16 years it has so used the services of Harry E. Butler, who operates a "Drivers Checking Service." Butler employs inspectors to ride buses and report on driver deficiencies in bus operation, courtesy, safety, and handling of cash fares. At the conclusion of each ride the inspectors make written reports of their findings to Butler, who evaluates them against the driver's trip report, and then turns over his findings to Vincent H. Batts, Respondent's supervisor of drivers. Butler makes his checks for Respondent two or three times a year, whenever he is in the area, or whenever Batts calls him. Early in February, when Butler was in the area, Batts asked him to make a general check. As a result of these checks, Butler submitted four reports to Batts which stated that White had picked up his inspec- tors as passengers on four separate occasions, had accepted cash fares from them, and had not reported the cash fares in his driver reports to Respondent. The occasions were on February 16, March 10, the morning of March 12, and the afternoon of March 12, 1965. Upon the basis of these reports, Batts asserted that he discharged White. According to the Trial Examiner, all four reports were false : the inspectors did not board White's bus or pay a cash fare to White. Moreover, the Trial Examiner concluded "it appears inconceivable that anyone in good faith could have accorded these Butler reports full faith and 'credit, contended that they even indicated dishonesty on the part of White or, in fact presented them in evidence as proof of Respondent's proper and legal motivation in discharging White." The two inspectors who made the controversial reports were called as witnesses at the hearing. Each testified that he had no independent recollection of the trips which were the subject of the reports, but that at the time the reports were made the facts stated therein were 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "true and correct to the best of my knowledge and belief.'' 2 The- Trial Examiner rejected these reports because of what he considered' internal and external evidence of the unreliability of the reports. Thus, as to the March 10 and 12 afternoon reports, the Trial Exam- iner said that the tachographs of each of these trips show that "the bus made only its regular stop at Newton Grove and otherwise never proceeded at less than approximately 15 miles per hour on March 10, or at any lesser speed than about 20 miles per hour on March 12. In other words [Inspector] P. Haake says that he boarded the bus on each occasion at West while on each occasion the tachograph says that he did not-unless the inspector swung aboard the bus traveling- at a speed of at least 15 miles per hour which would appear to have been a feat notable enough to deserve mention in the inspector's reports, both of which, however, are silent on this point." This con- clusion of the Trial Examiner rests on his reading of the tachographs. Respondent in its brief to the Board challenges the Trial Exam- iner's reading.- It says that "a correct and proper reading of these- tachographs shows that they say the opposite of what the Trial Examiner declares they say. These two tachographs, properly read, show that on the trips between Goldsboro and Fayetteville, on March 10 and in the afternoon of March 12, the regular stop at New- ton Grove was not the only stop which these buses made." Upon examination of these tachographs, we are unable to resolve- this conflict as to their proper reading. The tachographs were an incidental part of the driver's trip reports ; but they were not intro- duced for the purpose of showing the stops made by the buses, and none of the witnesses at the hearing testified as to whether the dis- puted tachographs showed more than one stop or how to read these- tachographs. Their reading is not self-evident. Absent expert testi- mony on this point, we are not prepared to conclude that the tacho- graphs show that the March 10 and 12 afternoon reports were false. The Trial Examiner found that the March 12 morning report "contains elements of unreliability within it such as would deprive it of the right to be classified as fair on its face." This conclusion is based on the fact that the inspector's report for that trip says that three passengers boarded the bus at a road stop, paid cash fares, but received no cash receipts therefor, whereas the driver's report shows- that cash receipts were given these passengers. Whether or not the- inspector erred in reporting that no cash receipts were given to the- three boarding passengers, we fail to perceive how this justifies the- 2 The fact that the inspectors and Butler did not have independent recollection of the trips covered by the four reports does not prove that they were fabricated. Butler testi- fied-that in February and March 1965, he had made "better than 100" checks for Re- spondent. Inspector Beck testified that he had made out "probably hundreds" of reports from January 1965 to the time of the hearing in July 1965. QUEEN CITY COACH COMPANY 219 Trial Examiner's conclusion. The two report's, that of the driver and of the inspector, agree that three cash passengers boarded the bus at a road stop ; this indicates that the inspector was on the bus. The fact that the inspector may have erred in reporting that the driver had not given cash receipts to these three passengers may prove that he is a poor observer, but is not an adequate basis for inferring that Respondent should have suspected that the inspector was fraudently reporting that he had given a cash fare to the driver for which he had not been given a receipt. The Trial Examiner discredited the February 16 report because, although the inspector who allegedly made the report identified the reports as his, the Trial Examiner, in comparing the signature on the February 16 report with the same signature on two later reports, con- cluded that the signature was not that of the witness. Further, the inspector's report states that he boarded the bus at West, North Carolina, paid his fare of 95 cents and was one of the two passen- gers on the bus. On the other hand, the driver's trip report says that there were four passengers ticketed from Goldsboro to Fayetteville, North Carolina, and one 50-cent cash-fare passenger riding that bus. Respondent's auditing department confirmed the driver's report. The Trial Examiner concluded that the "strange signature" on the inspec- tor's report, and the error in the inspector's report "does not tend to create confidence in the reliability of the inspector. Indeed, it tends to remove this report from the category of being fair on its face." As to the alleged doubtful signature, the Trial Examiner's observations as to differences in handwriting were entirely speculative. The inspector identified the signature as his at the hearing and stated he prepared the reports. This identification was not impeached. Under these circumstances, there was no warrant for the Trial Examiner in his Decision sua sponte to undertake the role of a handwriting expert and to discredit the identification testimony of the witness.a The two reports, that of the driver and of the inspector, do show a discrep- ancy as to the number of passengers, which Respondent's auditing department confirmed in favor of the driver. We have considered this fact in reaching our ultimate conclusion indicated hereinafter. In rejecting the inspectors' reports as unreliable, the Trial Exam- iner ignored testimony by White which lends some confirmation to the accuracy of the reports. White testified as to three instances in February and March 1965, involving cash-fare paying passengers 8 We have examined the signatures of "P FIaake" on the reports of February 16 and March 10 and 12 We do not agree with the T_•ial Examiner that "A casual comparison of these three 'P Iiaake' signatures reveals a striking dissimilarity" between the signatures on the three reports, or that "This dissimilarity is sufficiently startling to the casual observer as to cause questions to arise " On the contrary , we believe that only a hand- writing expert is qualified to say that the signatures on the three reports are different. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he did not report. Two of the incidents involved a young boy, who White judged was under 25 years of age, and whom he picked up twice at West at about 7:30 p.m.4 The third incident involved a woman passenger whom he picked up at about 3 p.m. at Newton Grove. On all three occasions, White testified, the passengers gave him a sum in excess of the fare and he did not have 5 or 10 cents change to give to the passenger. He said that he did not therefore give the passengers cash receipts but instead purchased tickets for them when he arrived at the Fayetteville station and, unable to find the passengers at Fayetteville to give them the tickets and change, threw away the passengers' part of the ticket and kept the change. Although, according to the uncontradicted testimony of Batts and Butler, a driver who purchases a ticket for a passenger is required to account for such purchases in his reports , White's reports for the months of February and March show no such purchases. The dissent emphasizes that Respondent told White at the time it discharged him that the reason for the discharge was unsatisfactory work but at the hearing it gave as a reason for the discharge that White failed to remit cash fares. The dissenting opinion appears to question Respondent's motivation in giving contradictory reasons to White and to the Board. We cannot infer from the fact that Respondent did not tell White the real reason for his discharge that the reason revealed at the hear- ing was a pretext. Supervisor of Drivers Batts testified that, in instances of dismissal for cash-fare irregularities , it is the company policy to tell the employee, without more, that the discharge is for unsatisfactory work. In such instances, he said, "we do not give them the reasons ; we take the position that we don't do anything to hurt his reputation or blacken his name in any manner ; we just tell him he is discharged for unsatisfactory work, and let it go." The sum of it is that we are unable to agree with the Trial Exam- iner's conclusion that it is "inconceivable that anyone in good faith could have accorded these Butler reports full faith and credit, con- tended that they even indicated dishonesty on the part of White or, in fact, presented them in evidence as proof of Respondent's proper and legal motivation in discharging White." Rather, we find on the basis of the entire record, that the General Counsel has not proved by a preponderance of the evidence that Respondent's assigned rea- son for the discharge of White was a pretext. Accordingly, we shall dismiss the allegation of the complaint that Respondent had dis- charged employee White in violation of Section 8(a) (3) of the Act. + Inspector Haake was 23 years old His reports show that he thrice boarded a bus at West, once on February 16, once on March 10, and once on March 12, at approximately the time stated by White. QUEEN CITY COACH COMPANY 221 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board ordered that Respond- ent, Queen City Coach Company, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from interrogating employees concerning mem- bership in, or activities on behalf of, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its terminals throughout its Fayetteville Division in North Carolina, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 11, upon being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Decision and Order, what steps Respond- ent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the allegation of the complaint that Respondent violated Section 8(a) (3) be, and it hereby is, dismissed. MEMBER ZAGORIA, dissenting in part : I would affirm the Trial Examiner's conclusion that Respondent discriminatorily discharged employee White. The General Counsel's affirmative case is overwhelming. Thus, starting in about January 1963, when White joined, and became active in, the Union, Respond- ent has consistently and persistently indicated its displeasure at White's union loyalties. These indications were more than mere expressions- of opinion, they took the following forms : (1) In August 1963, Division Manager Little told White that he would make a good driver if he "would leave the Union alone and keep his nose clean." (2) Little threatened to dismiss White if White refused to give him a list of prounion drivers just before the first representation election in April 1964. I 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing and Order." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Little ordered White, at the time of the second election in August 1964, to go to a motel room and mark his ballot in the pres- ence of five drivers. - (4) On March 16, 1965, Little asked White for a list of union drivers who rented rooms from White. (5) On March 19, 1965, Little asked the Union's vice president "How does Harold White stand, is he for it [the Union] ?" (6) On March 20, 1965, Little interrogated White, asking him if he was going to vote for the Union or the Company at the coming election. White answered that he would vote for the Union as that is what he believed in. White was discharged 2 days later, and only 3 days before the election of March 25, 1965, ostensibly for unsatisfactory work-at least that was the reason told to White by Batts, Respondent's super- visor of drivers. Finally, at the hearing, Respondent for the first time advanced as its reason for the discharge alleged derelictions on the part of White, specifically, his alleged failure to remit $4.05 in cash fares to the Company. The factors enumerated above are fully supported by the record, and my colleagues do not dispute them. They not only establish a prima facie case of a discriminatory discharge, but could almost serve as a classic example of the proof necessary to establish such a case. Since the function of a Trial Examiner, subject to Board and court review, is to determine why a discharge occurred, it seems to me that such a convincing case made out by the General Counsel could only be rebutted by a clear showing by the Respondent that an impelling reason existed for the discharge. I do not view the facts shown by this record as satisfying that test. At best, from Respond- ent's point of view, it produced some evidence to cast suspicion upon White of having failed to remit $4.05. This is a far cry from the kind of defalcation that would convince me that Respondent's real motive in discharging White was not his continued adherence to the Union after Respondent's repeated attempts to wean him away from his convictions. The Board has many times held, with court approval, that the test is motivation--so that even if a good reason in facts exists, a partic- ular discharge may nonetheless be found violative of Section 8(a) (3). N.L.R.B. v. Overnite Transportation Co., 308 F.2d 279, 284 (C.A. 4) ; N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 523 (C.A. 8) ; Bitumi- nous Material c Supply Co. v. N.L.R.B, 281 F.2d 365, 367 (C.A. 8). When, as here, the reason assigned by Respondent (at the hearing, not to White at the time) for the discharge is tenuous, I have no question at all about the correctness of the Trial Examiner's conclu- sion that White was discriminatorily discharged. In reaching this QUEEN CITY COACH COMPANY 223 result, I do not, and need not, adopt the Trial Examiner's subsidiary =conclusion that there is no basis at all for concluding that White may, have been dishonest. On that issue, I have doubts. As to Respondent's real reason for discharging White, I have none. 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 our employees that : WE WILL NOT interrogate our employees concerning member- ship in, or activities on behalf of, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of Amer- ica, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. All of our employees are free to become, remain, or refrain from becoming or remaining, members of the above -named Union, or any other labor organization. QUEEN CITY COACH 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 732-2911. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on March 31, 1965, by Harold L. White, an individual, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel and the Board, respectively, by the Regional Director for Region 11 (Winston-Salem, North Carolina), issued its complaint dated May 27, 1965, against Queen City Coach Company, herein called the Respondent. The complaint alleged that Respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge, complaint, and notice of hear- ing thereon were duly served upon Respondent and the Charging Party. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held at Fayetteville, North Carolina, on July 27 and 28, 1965, before Trial Examiner Thomas S. Wilson. All parties 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appeared at the hearing, were represented by counsel and were afforded full oppor- tunity to be heard, to produce, examine and cross -examine witnesses, and- to intro- duce evidence material and pertinent to the issues . At the conclusion of the hearing oral argument was heard . No briefs have been received. . Upon the entire record in the case and from my observation, of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Queen City Coach Company is a North Carolina corporation engaged in the transportation of passengers , freight, and mail 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 receives gross revenues from such transportation activities in excess of $250,000. The complaint alleged, the answer admitted , and I find that Respondent is now, ,and has been at all times material herein, engaged in commerce within the meaning ,of the Act. H. THE LABOR ORGANIZATION Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL-CIO, herein called the Union , is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The discharge Acting upon orders relayed to him by Marvin C. Little, Respondent's Fayetteville division manager, driver Harold L. White reported to the Charlotte office of Vin- cent H. Batts, Respondent's supervisor of drivers and equipment, on March 22, 1965. Present in Batts' office at this time was also John F. Ray, Respondent's Gen- eral Counsel. At this time and place Batts told White that he was being discharged because his "services were unsatisfactory." A request for further information brought forth only that White's services were "unsatisfactory." White has never been reinstated. 2. The union activities Harold White was first employed by Division Manager Little as a part-time driver on August 20, 1961. He worked steadily as such part-time driver until August 23, 1963, when Little promoted him to a full-time driver. About a year prior to his promotion to full-time driver White had written to Respondent's President Love in Charlotte about his efforts to secure a permanent position . A few days thereafter Little expressed his displeasure at the fact that White had "gone over his head" in writing his letter to Love and added the remark that he, Little, had had reports that White was talking for the Union. About January or February, 1963, White joined the Union and became covertly active in its organizing campaign among the Fayetteville Division drivers. About the time of his promotion in August 1963, Little told White that, if White "would leave the Union alone and keep his nose clean," White would make a good driver. About March 1964 the Union filed a representation petition covering the Fayette- ville Division drivers with the Board . Subsequently three different elections have resulted from the filing of this petition , two of which, at least, have been set aside by the Regional Director on objections by the Union. The first such election was held on April 14, 1964. Just prior thereto Little called White into his office and demanded on pain of dismissal that White give him a list of those drivers whom White knew to be prounion . White protested that he had no such list, knew of no prounion drivers and claimed that he himself was procompany. The second election was scheduled for August 1964. The balloting for this elec- tion was to be done by mail. On this occasion Little ordered White to go to a certain motel room and there mark his ballot in the presence of five drivers who QUEEN CITY COACH COMPANY 225 would be there. Although White protested, he did mark his ballot before these five drivers at the motel room as ordered. Subsequently this election was also set aside on objections by the Union. In January 1965, White moved into a dwelling 'house close to the bus terminal in Fayetteville where he rented out rooms to certain Carolina Trailways drivers who were unionized. On March 16, Little requested White to give him a list of the union drivers who were renting rooms at his house. White refused, claiming that this had nothing to do with bus business. Sometime early in March 1965 1 it was agreed among the parties and the Board that the Board would make its third try, growing out of the April 1964 representa- tion petition, at holding a fair election on March 25, 1965. About March 19 driver Meissner , a vice president of the Local Union , went to see Little for help in quieting a rumor going around among Respondent 's Fayette- ville drivers to the effect that Meissner had been supplying Respondent with the names of all the prounion drivers. During the course of this discussion Little asked Meissner, "How does Harold White stand, is he for it [the Union]?" Meissner answered that he did not know but felt that White was a "good company man." 2 Later in this same conversation , Meissner informed Little that he, Meissner, had been asked to be the union observer at the election, to which Little replied, "Well, I don't believe I'd do that if I were you." 3 On or about March 20, White, accompanied by a friend, Robert P. Robinson, went to see Little at the terminal about a speeding citation which White had received on March 5 while operating one of Respondent's buses. After telling White that the citation had not yet been taken care of, Little inquired of White if he was going to vote for the Union or the Company at the coming election. White answered that he would vote for the Union because that is what he believed in. Little replied that he would see if he could get the citation taken care of.4 As found supra, 2 days thereafter and 3 days prior to the scheduled Board election White was sent to Charlotte and told by Batts that he was being discharged because his "services were unsatisfactory." 3. Respondent's defense a. Respondent's theory In the face of the above prima facie case indicating that Respondent had been motivated by antiunion considerations in its discharge of White on Maich 22, Respondent chose and undertook to prove that White had been, in fact, discharged by it for "dishonesty " in failing to report and to remit to Respondent cash fares of 95 cents on February 16, of 95 cents on March 10, of $120 on the morning of March 12, and of 95 cents on the evening of March 12. Respondent's proof i At the hearing I requested the date on which the aforementioned determination was made It was agreed that General Counsel would supply this information for the record. No such information has been forthcoming However, Division Manager Little testified that he was notified of this election "about maybe 2 weeks" before the election ii as actually to be held on March 25. Thus, the exact date of the decision to hold the election thus remains somewhat indefinite 2Although denying having asked about White's union "stand," Little admitted having inquired of Meissner about White and having received the answer that White was "a good company man." At this time Meissner's prounion stand was well known whereas White was to Meissner's understanding still attempting to keep his own prounion sympathies as quiet as possible. 8 Little made no denial of this part of the conversation. It is obvious the Meissner- Little conversation concerned the Union and union affairs Little's denials that he in- quired about White's "stand" or ever talked about the Union with employees were not impressive. 4 Admittedly this is the first official notification to Respondent that White was overtly prounion. As Little denied having referred to White's vote in the election during this conversation, the above findings are made upon the credited testimony of White and Robinson who both gave all indications of testifying to the truth, whereas Little's denials of this and other matters pertaining to the Union were unimpressive. I am convinced by all the facts that Little suspected that White's sympathies were for the Union long before White made the aforementioned admission on or about March 20. 25 7-551-67-vol 160-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these alleged defalcations by White were based upon four reports received by Respondent from Butler's "Drivers Checking Service" which on their face indicated that such fares had been paid to driver White by Butler operatives on the afore- mentioned trips but that White had not reported or remitted the same in his trip reports. It is quite true that on their face the four Butler reports made to Respondent indicate that each of these alleged defalcations had in fact occurred. In fact Butler himself reported such shortages at the bottom of the four Butler reports. It appears to be Respondent's theory, as expressed during oral argument herein, that it had the absolute right in discharging White to rely completely on the Butler reports with the Butler findings made thereon without regard to their truth and reliability so long as Respondent in so acting was acting in accordance with its usual and normal business practice. It further appears to be Respondent's theory that, so long as it proceeded against White according to this normal and usual practice based upon these reports, the question of White's actual honesty or dis- honesty in the handling of this money was completely immaterial. Obviously under this theory, Respondent divests itself of all responsibility for the evidence upon which it purported to discharge White by not only granting full faith and credit to these Butler reports made to it by third person or persons unknown, and perhaps irresponsible, and also by making these reports by unknown persons unassailable and irrefutable proof of the charges contained therein by refusing to disclose such charges to the employee directly affected thereby, thus preventing him from any possibility of disproving or discrediting the charges secretly made against him therein. As evidenced in the instant case where these unknown third-party inspectors making such reports did in fact appear at the hearing in person, the testimony of these third parties proves that each of them disclaimed any personal knowledge or memory of the events in question for which Respondent was discharging White other than as such facts were recorded in their reports. The testimony of these third-party inspectors was actually limited to a statement that "to the best of his knowledge and belief" the facts recorded in the reports were accurate when recorded and to an admission by each that he had signed the reports for which he was apparently responsible, a fact which became of somewhat dubious reliability upon a casual examination of such signatures . Hence, under Respondent's theory, these reports became unassailable proof of guilt with no one accepting any responsibility therefor, Respondent having divested itself of any such responsibility and the third-party reporters refusing to assume any such responsibility. Yet upon the basis of these four pieces of paper Respondent justifies its discharge of a driver for alleged "dishonesty." I cannot accept such theory. However, even under Respondent's theory of this case which I accept for the nonce and for the purposes of this case only, if Respondent chooses to grant these reports full faith and credit as well as to cloak them with the aura of infallibility in its employment relationship with its own employees , then it is incumbent upon Respondent, at the very least, to see to it that such reports are fair upon their face and do not carry proof of their unreliability, if not falsity within themselves. This much, at least, Respondent owes to its own employees. If it were otherwise, then Respondent here has uncovered a foolproof method of evading its responsibilities to its own employees as well as evading its responsi- bilities under the Act. It now becomes necessary to discuss in some detail the various and sundry reports and "customary" procedures thereof in order that the remainder of this report be intelligible and to determine if Respondent fulfilled even this minimal duty. b. The reports-their purpose, methods, and procedures As of the time in question here, White was operating Respondent's bus on the Goldsboro-Fayetteville run 7 days per week on the following schedule: Leave Arrive Goldsboro 8:05 a .m----------------------------- Fayetteville 9:20 a.m. Fayetteville 2:20 p.m ---------------------------- Goldsboro 3:35 p.m. Goldsboro 6:30 p.m ----------------------------- Fayetteville 7:45 p.m. Fayetteville 10:30 p.m --------------------------- Goldsboro 11:35 p.m. This run is primarily for freight and mail. The reports in evidence show that there were never more than five passengers on any run. QUEEN CITY COACH COMPANY 227 On this run there was one regular stop: at Newton Junction,5 which is located approximately halfway between the two terminals. However the bus would stop any place along the route to pick up or discharge passengers. When flagged down on the road, the busdriver would collect from the passenger a cash fare for the transportation desired Upon receipt of this cash payment it was the driver's duty to punch duplicate tickets known as "cash fare receipts" show- ing the amount of cash received and, in some cases, the stations between which the transportation was provided. One of these receipts was given to the passenger and the duplicate was retained by the driver for ultimate inclusion in his trip report made at the conclusion of the run. Strangely enough Respondent did not supply the driver with cash with which to make change which might be required in these cash transactions. So if the driver did not happen to have cash of his own to make change with. Respondent per- mitted its drivers to retain the passenger's cash payment and, upon arrival at either Goldsboro or Fayetteville where Respondent maintained ticket offices, the driver would purchase a ticket for the passenger and return the change to the passenger. No cash fare receipt would be issued in a case such as this. At the conclusion of each trip the busdriver made what is known as the "driver's trip report" on an envelope provided by Respondent for such purpose. On the outside of said envelope the driver made his trip report consisting, in pertinent part, of his own name and number, the trip number with scheduled departure and arrival times at the terminals, the number of tickets and cash fares collected, the numbers of the cash fare receipts used, and whether a "tachograph" record of the trip was made.6 The driver then places the tickets and cash collected together with the cash fare receipts and tachograph, when made, into the envelope, seals the envelope, and deposits same into a chute down which his report falls into Respond- ent's safe at the Fayetteville terminal. Thereafter the driver has no control over this driver's report and never sees it again. Each weekday morning Fayetteville Division Manager Little opens this safe, removes all the trip reports present therein, makes a record of each, and stamps each, at least according to the testimony, with a stamp dated the same day as the trip was made. He then ships all these driver trip reports still sealed to Respond- ent's auditing department in Charlotte on the 12:20 p.m. bus. Trip reports deposited in the safe over the weekends are apparently handled on Monday mornings. Upon arrival at the auditing department in Charlotte, the auditors proceed to open and "work" these trip reports, i.e., comparing the contents of tickets, cash, and cash fare receipts with the driver's written report thereof. When this audit discloses a cash shortage, which apparently is not unusual, the auditing department will notify the driver and demand either a cash remittance from him or arrange for a deduction in his next paycheck in order to cover such shortage. Both methods had been applied to White during his employment although Respondent made no claim here of past deficiencies in this regard by White. Any inadvertent cash over- age in the trip report is returned to the driver. It is, of course, obvious that only in unusual circumstances will the auditing department's check disclose instances where a busdriver may be collecting cash fares owing to Respondent and pocketing the same for his own personal use where said driver fails to report such collection of cash fares. For this purpose Respond- ent employs a number of outside "spotters" and checkers, among whom is one Harry E. Butler of Davidsville, Pennsylvania, who operates what he calls a "Driv- er's Checking Service." Respondent has made use of Butler's services for the past 16 years. During this period Butler has customarily made routine random checks over Respondent's system two or three times per year, the last of which was made for Respondent as late of January, 1965. Butler operates his checking service through the use of operatives whom he calls "inspectors" who are paid to ride buses, note any and all deficiencies on the part of the busdriver which the inspector either remembers or notes down in a notebook or convenient newspaper. It is "customary" soon after the conclusion of each ride for these inspectors to make reports of all such deficiencies in operation, courtesy, 5 Both White and Batts agree on this. 9 Many of Respondent's buses are equipped with a mechanical device known as a tachom- eter which automatically records upon a paper disc known as a tachograph the period of time the engine of the bus is in operation and the speeds at which the bus is being oper- ated throughout and thus, necessarily , when the bus is at a standstill. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD safety, and, particularly, in the handling of cash fares on forms provided therefor by Butler. Customarily these inspectors give their reports to Butler or another super- visor in charge of the operation. Also customarily while operating over Respondent 's system, Butler will telephone Batts, head of Respondent's drivers and equipment, and inform him as to the buses ridden that day by Butler's inspectors . Batts thereupon rushes to the auditing depart- ment in an effort to secure the driver's trip reports for these same trips before they have been opened and "worked" by the auditing department. Customarily also Batts then has the still unopened trip report delivered to Butler at some rendezvous away from Respondent's terminal. There Butler customarily opens the trip reports alone and checks them against his own inspectors' reports, particularly noting any and all cash discrepancies between the two at the bottom of the Butler form in his own handwriting or printing. The inspectors' reports with Butler's findings thereon are then somehow returned with the trip reports to Respondent which takes whatever action in connection with such unsigned reported findings as Respondent cares to, take.? The particular Butler reports here involved were the work of Butler operatives Arthur S. Haake and David R. Beck, each of whom testified that he was 23 years of age, a high school graduate and had been employed by Butler since January, 1965. The testimony of each further showed that, outside of what appeared in the written reports and outside of what was "customarily" done, he had no personal memory or recollection of the trips involved, the facts of those trips, when the reports thereon were made or how, where, or to whom the reports were delivered. Indeed neither was able to testify where he had been working the week prior to the hearing. Each did testify at the hearing, however, that at the time of making the reports the facts stated therein were "true and correct to the best of my knowledge and belief." This admission corroborated the signed statement found upon the reverse side of the Butler reporting form that: "I certify that this report is a true statement of facts to the best of my knowledge and belief as they occurred during this trip." It is now time to examine the particular reports themselves. c. The February 16 reports White's trip report dated February 16, 1965, for run 324 leaving Goldsboro at 6:30 p.m. and arriving at Fayetteville at 7:45 p.m., shows four passengers with tickets from Goldsboro to Fayetteville and one 50-cent cash-fare passenger with one cash-fare receipt issued. This trip report bears the stamped date of "Febru- ary 16, 1965," on its back where District Manager Little customarily stamped them together with a second stamped date of "February 19, 1965," on the front thereof. This second stamped date remained unexplained. The auditing department had noted on the report the receipt of four tickets and one 50-cent cash fare. The contents of the envelope were missing as the auditing department had worked the report before Batts requested it. The Butler report in hand-printed letters relating to this same trip indicates that the inspector boarded the bus at West, North Carolina, a crossroads between 5 and 6 miles beyond Newton Junction toward Fayetteville, paid a cash fare of 95 cents but received no cash-fare receipt at any time. The inspector reported two passengers were on the bus at West including himself and that the two disembarked at Fay- etteville.8 The customary certificate on the reverse side of this report reading "I certify that this report is a true statement of facts, to the best of my knowledge and belief, as they occurred during this trip" was over a signature reading "P. 7 The word "customarily" has been used advisedly above because the testimony of both Batts and Butler prove that neither had any personal memory as to the time, method, or procedures used in checking the particular reports involved here In fact Butler deduced from the fact that his inspectors' reports were uncreased, as would be necessary if they had been mailed to Respondent, that these reports had remained in his own possession until after he alone had checked them against the driver's trip report Even though Butler had noted apparent cash defalcations on each of the four reports in evidence, a serious offense, he was still unable to recall when or how the reports were returned to Respondent 8 This count contradicts the reports of both White and Respondent's auditing department, each of which indicated five passengers QUEEN CITY COACH COMPANY 229 Haake." 9 At the bottom of this report in printing which Butler identified as his were the words "driver's envelope show [sic] no record of inspector's cash fare. 95" d. The reports of March 10 White's driver's trip report for run 324 on March 10, starting 6:30 p.m. at Golds- boro and ending at Fayetteville at 7:45 p.m., shows three passengers ticketed from Goldsboro to Fayetteville, no cash-fare passengers and no cash-fare receipts issued. The division date stamp on the back of said envelope was "March 11, 1965." The contents of the report envelope were three such tickets 10 and a tachograph for the trip showing that the bus made one stop, the regular stop at Newton Grove. The Butler inspector's report in handwriting shows that the inspector says he boarded the bus at West, North Carolina, where the driver asked him for an 85-cent fare to Fayetteville and subsequently requested an additional 10 cents, as the fare from West to Fayetteville was 95 cents, which the inspector paid but for which he received no cash-fare receipt." The inspector reported four passengers on the bus at West and four leaving the bus at Fayetteville. In handwriting, which Butler testified was his, at the bottom of this report appeared the notation: "Driver's report shows no record of inspector's fare-short .95." The usual certificate on the rear of this Butler report was over a signature: "P. Haake." The signature on this report is strikingly different from the signature "P. Haake" on the Butler report of February 16. e. The morning report of March 12 White's trip report for run 326 on March 12 leaving Goldsboro at 8:05 a.m., and arriving Fayetteville at 9:20 a.m. shows one passenger with a Goldsboro-to- Fayetteville ticket, one 50-cent cash-fare passenger and two 30-cent cash-fare passengers with three numbered cash-fare receipts issued in similar amounts. The division date stamp on the reverse side is "March 14, 1965." 12 The contents of the envelope were one $1 bill 13 and one dime, three cash-fare receipts respectively punched 30 cents, 30 cents, and 50 cents, one Goldsboro to Fayetteville ticket or a total of four passengers. Also enclosed was a tachograph indicating five stops made during the trip. The driver's penciled date on this driver's trip report had obviously been changed from March 11 to March 12. The Butler report in handwriting for this trip, whose certificate on the back is over the signature of "P. Beck," 14 which agrees with the name given by the inspector when he testified, records that the inspector boarded the bus at the regular stop at Newton Grove, handed the driver a $1 bill and two dimes but received no cash-fare receipt therefor. The inspector reported that three cash-fare passengers boarded the bus at a road stop and that none of them received cash-fare receipts. During his check of the reports Butler noted the fact that, contrary to his inspector's report, three cash-fare receipts had been issued and were among the contents of the driver's trip report. At the bottom of the Butler report in printing, which Butler identified as his own, appears the following: "Drivers report shows no record of inspector's cash fare-Short 1.20." f. The evening reports of March 12 White's trip report for run 324,15 leaving Goldsboro at 6:30 p.m. and arriving at Fayetteville at 7:45 p.m., showed two passengers ticketed from Goldsboro to Fayetteville, no cash fares received and no cash-fare receipts issued. The contents of the envelope consisted of the two tickets aforementioned and a tachograph which 0 The inspector who testified at the hearing testified that this signature was his also testified that his name was "Arthur Stephan Haake " 10 Actually there were four ticket stubs enclosed but two of these stubs have the same printed ticket number and are, therefore , parts of the same passenger 's ticket. 11 White's report shows no cash fares received or receipts issued. 1 Respondent's testimony indicated that drivers' trip reports placed in the safe over the weekend were worked the following Monday. March 14, 1965, was a Sunday. 13 The serial number of the $1 bill contained in the envelope was not the serial number of the $1 bill which the inspector recorded on the Butler report as that given by dial to the driver. 14 The handwriting on this report and the signature appear to be the same. 15 On this report the run number was obviously changed from 323 to 324. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed one stop made during the trip, at the regular stop at Newton Grove, and otherwise no speed less than 20 miles per hour. The division date stamp on the reverse of the report is "March 15, 1965." The Butler report in pnnted letters records that the inspector boarded the bus at West and paid the driver one -half dollar, one quarter, and two dimes for his passage but received no cash-fare receipt therefor . The inspector also reported that there were three passengers including himself, on the bus at West and three departed at Fayetteville. After his check Butler wrote in handwriting on the bottom of this report: "Driver's report shows no record of inspector's fare-short .95." The certificate on the reverse side of this report is over the signature "P. Haake" in handwiiting similar to that on the March 10 Butler report but still startlingly dissimilar from that on the February 16 report. g. Conclusions as to the reports Thus, according full faith and credit to these four Butler reports, the claimed defalcations have been proved as noted heretofore. However, it now becomes Respondent's duty to cast at least a casual eye upon these reports to determine that these four reports were fair on their face and thus entitled to full faith and credit given , even under Respondent's theory. One of these Butler reports purports to be the work of inspector "R. Beck" while the other three purport to be that of "P. Haake." The R . Beck report for the morning of March 12 appears to be in the neat, compact handwriting of the individual who signed the certificate on the reverse side thereof. This report says that three persons boarded the bus at a road stop, paid cash fares but received no cash receipts therefor. The driver's report says that three cash-fare receipts were issued and the contents of the driver's report con- tained three properly punched cash receipts plus the cash to prove it . Even Butler noted on his report to Respondent this obvious inaccuracy in the observation and reporting of his inspector. However, despite this notation, Butler claimed the $1.20 fare allegedly paid by this same inspector was not reported or remitted by the driver. If R. Beck boarded and paid the fare, Butler's claim is correct despite this other obvious error . But it is hard to believe that any inspector actually aboard the bus could have missed observing the driver punching out three cash-fare receipts . At the very least this Beck report contains elements of unreliability within it such as would deprive it of the right to be classified as fair on its face. The remaining three reports contain certificates over signatures reading "P. Haake" which a witness testifying under the name of "Arthur Stephan Haake" claimed were his. A casual comparison of these three "P. Haake" signatures reveals a striking dissimilarity between the handwriting of the signature on the February 16 report and that on the March 10 and 12 reports . In fact the neat, compact signa- ture "P, Haake" on the February 16 report appears more like the R. Beck hand- writing than it does to the large, scrawling signatures on the other two Haake reports. This dissimilarity is sufficiently startling to the casual observer as to cause questions to arise. P. Haake's first report of February 16 states that he boarded the bus at West, North Carolina , paid his fare of 95 cents for which he received no receipt and was one of the two passengers on said bus . On the other hand the trip report, without its contents available, says that there were four passengers ticketed from Goldsboro to Fayetteville and one 50-cent cash-fare passenger riding that bus. Respondent's own auditing department confirms the driver's trip report in this regard . In addition to the strange signature thereon, this report thus indicates a rather notable inability to observe and report correctly for a person who was actually on the bus . Such a reporting error, especially when confirmed by Respond- ent's auditing department, does not tend to create confidence in the reliability of the inspector. Indeed it tends to remove this report from the category of being fair on its face. P. Haake's next two reports , dated respectively March 10 and the evening of March 12, both say that the inspector boarded the bus at the flag stop at West, North Carolina, and on each occasion paid a 95-cent fare to Fayetteville without receiving a cash-fare receipt. Neither these fares nor cash -fare receipts therefor appear on or in the driver's trip reports. Each of these drivers' reports contained tachographs of the respective trips. These tachographs say that on each of these trips the bus made only its regular stop at Newton Grove and otherwise never pro- ceeded at less than approximately 15 miles per hour on March 10 or at any lesser speed than about 20 miles per hour on March 12 . In other words P. Haake says QUEEN CITY COACH COMPANY 231 that he boarded the bus on each occasion at West while on each occasion the tachograph says that he did not-unless the inspector swung aboard the bus travel- ing at a speed of at least 15 miles per hour which would appear to have been a feat notable enough to deserve mention in the inspector's reports, both of which, however, are silent on this point. Despite these internal conflicts in the reports Butler charged the driver with 95-cent cash shortages on each occasion for money allegedly paid by the inspector upon his boarding said bus. In the light of these obvious and serious conflicts nobody could contend that these inspector's reports were fair upon their faces or worthy of full faith and credit.16 Of course, it is obvious that, if the Butler inspectors did not board White's bus and pay the fares they reported that they paid, there were no cash fares for White to report and remit to Respondent and Respondent's claim of "dishonesty" on the part of White in the handling of such alleged fares evaporates. In each of the instances in evidence here, there is persuasive evidence that no inspector ever boarded the bus or paid a fare. In the light of the internal conflicts disclosed by even a casual inspector of the reports, it appears inconceivable that anyone in good faith could have accorded these Butler reports full faith and credit, contended that they even indicated dis- honesty on the part of White or, in fact, presented them in evidence as proof of Respondent's proper and legal motivation in discharging White. B. Conclusions as to the unfair labor practices I am convinced and, therefore, find that Respondent through Fayetteville Divi- sion Manager Marvin Little intended to interfere with, restrain, and coerce Respondent's employees, and Harold L. White and Laurence R. Meissner in par- ticular, in the exercise of the rights guaranteed them in Section 7 of the Act in vio- lation of Section 8(a) (1) of the Act when Little: (1) on or about March 16, 1965, requested White to supply him with the names of the union drivers renting rooms from him; (2) on or about March 19, 1965, interrogated Laurence R. Meissner, whose prounion sympathies were well known to all, as to how White "stood" on the union question and then warned Meissner against acting as the union observer at the representation election scheduled to be held on March 25; and (3) on or about March 20, 1965, interrogated White as to how White intended to vote in the representation election scheduled 5 days thereafter. As to the discharge of Harold L. White, the facts are quite clear. Respondent, an antiunion employer, was facing on March 25, 1965, the third attempt by the Board to hold a fair representation election under "laboratory conditions" after two pre- vious attempts within the previous year had been foiled by actions of this Respond- ent. Respondent had long suspected driver White of holding prounion sentiments. On March 20, 1965, 5 days before the scheduled representation election, Respond- ent through Little confirmed these long-held suspicions when, in answer to an inquiry by Little, White acknowledged his intention to cast his ballot for union representation. On March 22, 2 days later, and still 3 days before the election, at a time when news of such discharge would have its maximum effect upon the voters in that election, Respondent discharged the now publicly known prounion White upon a false charge based upon patently unreliable evidence as indicated heretofore. This chronology alone, which Respondent referred to as "mere coincidence," coupled with the past history of Respondent's suspicions as to White's prounion sympathies and thereafter strengthened by the patent unreliability, if not falsity, of the charges for which Respondent purported to discharge White on March 22, con- vince me that the aforementioned chronology was no mere "coincidence" and that Respondent discharged Harold L. White on March 22, 1965, because it had con- firmed its previous suspicions that White was, in fact, prounion and intended to vote for the Union at the scheduled election and further that Respondent used these palpably erroneous reports as a mere pretext in an attempt to conceal the 16 Under Respondent's theory of this case, it is not incumbent on me to resolve this conflict between P. Haake and the tachographs. However, if it were, I would have to decide this conflict in favor of the tachographs because, in all three instances where the tachograph was available and in evidence, that mechanical device gave all appearances of being in perfect mechanical condition and operation. On the other hand Arthur Stephan Haake• appeared on the witness stand to be an unduly uncomfortable, nervous, and perspiring youth, even for a witness appearing on the stand for the first time. 14 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actual reason for its action against White in violation of Section 8(a)(1) and (3) 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 Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated in regard to the hire and tenure of employment of Harold L. White by discharging him on March 22, 1965, it will be recommended that Respondent offer him immediate and full reinstate- ment to his former, or substantially equivalent, position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of his reinstatement, less his net earnings during said period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum. Because these unfair labor practices engaged in by Respondent go to the very heart of the Act, I sense an opposition to the policies of the Act in general and hence deem it necessary to order Respondent to cease and desist from in any manner infringing on the rights guaranteed its employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Harold L. White on March 22, 1965, thereby discriminating in regard to his hire and tenure of employment and discouraging union membership and activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, 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.] Wards Cove Packing Company, Inc. and The Nakat Packing Cor- poration Waterfall Plant and New England Fish Company' and International Longshoremen's and Warehousemen's Union, Independent, Petitioner. Cases 19RG-3863, 3864, and 3865. July 26,1966 DECISION AND ORDER Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, hearings were held on March 4, 1966, and 1 The name was amended during the hearing to Nefco-Fidalgo Packing Company, to reflect the joint venture under which the Company is operating in 1966. 160 NLRB No. 23.