Trailways of New England, Inc.

TRAILWAYS OF NEW ENGLAND , INC. 509 misrepresentation .' Furthermore , the elig,ble employees could rea- sonably construe the stated rate as applicable to permanent employ- ees and the annual bonus as being linked with the length of employ- ment during the year. Accordingly, objection 1 is hereby overruled. Objection 2 relates to alleged misrepresentations in another leaflet distributed by the Petitioner at 4:30 p.m ., March 15, the day before the election. This leaflet listed benefits allegedly included in the Peti- tioner's current contract with Quaker Oats Co. whose employees it also represented. The Regional Director found that the Petitioner's statement that Quaker Oats employees received "triple time for holi- days," although less important than the matter of hourly rates involved in objection 1, was also an objectionable misrepresentation because the contract actually provided for holiday pay at two and one-half times the regular hourly rate . We find this misrepresenta- tion, in the context of the entire election campaign , to be insubstantial and an insufficient basis for setting aside the election . We therefore overrule objection 2. Accordingly, as we have overruled the objections and the tally of ballots shows that the Petitioner has obtained a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representa- tive of the employees in the appropriate unit. [The Board certified Retail, Wholesale and Department Store Union (RWDSU), AFL-CIO, as the designated collective-bargaining representative of the employees of the Employer.] * Hollywood) Ceramics Co., Inc., supra. Trailways of New England , Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO. Cases 1-CA-4549, 4639, 4657, 4746, and 4752. August 12, 1966. DECISION AND ORDER On May 11, 1966 Trial Examiner Ramey Donovan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and the Respondent filed a brief in support of the Trial Examiner's Decision. 160 NLRB No. 44. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 [Members Fanning, Brown, 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 and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Amalgamated Association of Street, Electric Railway and Motor Coach Employ- ees of America, AFL-CIO, now Amalgamated Transit Union, AFL-CIO, herein called Amalgamated or the Union, filed charges against Trailways of New England, Inc., herein called the Respondent or the Company.' An individual, Robert M. Parker, filed a charge against the Company on September 24, 1964.2 The General Counsel issued a complaint on September 9, 1964, and, at various dates thereafter amended the complaint , up to and including January 4, 1965. The complaint, described briefly, alleged violations of Section 8(a)(1),(3), and (5) of the Act. Respondent denied the commission of unfair labor practices. A hearing was held in Boston, Massachusetts on 43 hearings days between Janu- ary 4 and April 29, 1965 before Trial Examiner Ramey Donovan.3 In order to understand subsequent developments in perspective, a few words are appropriate about the aforementioned case. The Company and the Union had had contractual relations for many years . On December 31, 1963, while a contract was in effect, a strike of substantially all employees, drivers, ticket agents, and baggage handlers, occurred . Without going into the details or the communications between the parties or their contentions regarding the strike and their negotiations relating thereto, it suffices to state that the Company thereafter discharged over 190 employ- ees. The issue of the legality of the discharges was not litigated before me since, for the purposes of the case, the General Counsel conceded the validity of the dis- charges.4 What was in issue before me was an alleged refusal to bargain over the course of many meetings between the parties and an alleged discrimination in hiring discharged strikers , commencing about January 15, 1964. The discrimination alleged had both group and individual aspects and entailed the appearance of approximately 190 individuals . Additionally, the General Counsel had alleged that on June 15, 1964, Respondent had discriminatorily suspended Robert M. Parker for 4 days and had discharged Parker on September 21, 1964.5 Parker had been an employee at the time of the strike in December 1963 and had been discharged . He had been hired as a new employee on April 24, 1964.6 i Charges filed in the following cases • 1-CA-4549 , April 7, 1964 ; 1-CA-4639, June 10, 1964 ; 1-CA-4657, July 1, 1964, 1-CA-4752, September 30, 1964. 2 Case 1-CA-4746. s The General Counsel filed a 364 -page mimeographed brief on or about October 1, 1965 and the Respondent filed a 194 -page printed brief at that time 4 Contemporaneously , the discharge issue and the arbitrability thereof was being litigated by the Union and the Company in the Federal District Court and Court of Appeals 6 As we have seen , Parker had filed a charge alleging such discrimination in Case 1-CA- 4746. The Union charge in Case 1-CA-4752 was substantially identical with the individual Parker charge. 8 At various dates, commencing about the middle of January 1964, Respondent, upon application , had hired on an individual basis , a substantial number of discharged strikers as new employees. TRAILWAYS OF NEW ENGLAND, INC. 511 Approximately in the latter part of December 1965, the Regional Office of the Board in Boston advised the Trial Examiner's Division in Washington, D.C., that prospects for settlement of the case were promising . I thereafter suspended my work on the writing of a Decision. On April 15 , 1966, the General Counsel, the Com- pany, and the Union filed with me a joint motion to dismiss complaint . Inter alia, the motion recited that the Company and the Union had entered into a settlement agreement providing for the execution of a new contract by the parties and the acceptance of a specified arbitration award .? Various other aspects were referred to in the said motion, including the fact that the settlement agreement was dependent upon the approved withdrawal of all complaints pending before me except for Cases 1-CA-4746 and 1-CA-4752, the Parker allegations . On April 15, 1966, I issued an order granting the aforesaid joint motion, approving the withdrawal of Cases 1-CA-4657, 1-CA-4549, 1-CA-4639 and dismissing that portion of the complaint relating thereto; and retaining jurisdiction of that portion of the complaint relating to the individual case of Robert M . Parker in Cases 1-CA-4746 and 1-CA-4752. Upon the entire record, including observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, the employer, at all material times, has maintained its principal office and place of business in Boston, Massachusetts, where it maintains a bus terminal and offices. At Boston and at other locations Respondent engages in the business of providing interstate transportation service by motor carrier buses to the general public. As an instrumentality of interstate commerce, Respondent causes passengers to be transported from its terminals in Boston , Massachusetts, in New York, New York, and other cities to several other States of the United States. Annually, in the course of its operations , Respondent receives gross revenue in excess of $250,000. It is found that' Respondent is an employer engaged in commerce within the meaning of the Act. U. THE LABOR ORGANIZATIONS Amalgamated Transit Union, AFL-CIO, an international union, and Division 1318, Amalgamated Transit Union, AFL-CIO, a local union, are labor organiza- tions within the meaning of the Act .8 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The suspension of Robert M. Parker; the discharge of Parker General Background I have stated, in a prior portion of this Decision, the general legal background of the overall case. In fairness to all parties involved in the Parker case, a sharper focus must be drawn regarding this background insofar as it is relevant to the issue before me. _ - The December 1963 strike and its aftermath was in - many respects a traumatic experience for the Company, the Union, and the employees . From the Company's standpoint, its entire operation had been almost wholly disrupted by an unexpected strike of substantially all its employees on New Year 's eve. Thereafter, the Com- pany's discharge of over 190 employees , who had seniority ranging from a year or less to 25 years or more, was of profound importance to the Union and to the employees .9 As a result of the strike, the Company operated on a curtailed basis by renting buses and drivers from other companies and by hiring employees who were either 7 The arbitration award related to the grievance filed by the Union respecting the dis- charge of the strikers. 8 As appears , local unions within the Amalgamated are designated divisions , whereas In other international unions the designation would generally be local union. Neither to be magnified nor omitted In the problems confronting the parties was the fact that the International Union had imposed a trusteeship on Its Division 1318. There was collateral litigation on this aspect as well 'as on the contractual arbitrability issue 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonunion or members of other unions. Earnest and repeated meetings took place between the Company and the Union but they did not succeed in resolving the dif- ferences in their respective positions. Approximately, in the middle of January 1964, the Company undertook to hire, on an individual basis, discharged strikers, who applied for employment as new employees. Initially, the Union's position was that the strikers were prepared to return providing that they were reinstated; i.e., with their old seniority. The great majority of the strikers adhered to the union position but some of the strikers, including employees Rutherford, Bolduc, and Adler, sub- sequently applied for employment to the Company on the latter's terms; i.e., as new employees and were hired as new employees.10 With this development, the Union advised its members to seek employment with the Company on any terms available. Thereafter, the strikers applied for employment as new employees. Many were rehired at various times and some were never rehired. Since all strikers, who were rehired after the strike, came back as new employees, the date of poststrike hire determined their respective dates." In the foregoing connection, it is also to be observed that seniority in the bus industry is in many respects a more important factor than it is in other industrial enterprises. Generally, employee seniority in industry bears upon such situations as layoff and retention of employees or upon promotion opportunities. In the bus indus- try, seniority also relates to the foregoing but, additionally, day-to-day work and earnings are affected by relative seniority standing. Thus, the drivers bid for par- ticular routes on the basis of seniority and the senior man is accorded preference. Drivers who are low in seniority receive either the less desirable route or, not uncommonly, work as extras on a standby basis. Thus, a man on such a standby or protection basis, as it is called, may have to standby at a terminal in the event that for some reason he may be needed. Illness of a driver or additional passengers may necessitate the use of an extra driver. Working on such a basis is to be con- trasted with the situation of a high seniority driver. The latter may have a home in Portland, Maine. By virtue of his seniority he secures the Portland to New York route on a regular schedule. To a great degree his working time and his nonworking time is predictable and can be planned accordingly. Also, a driver's earnings are importantly affected by the mileage he drives and the senior man has the advantage in this respect as is apparent from what has been said in contrasting the situation of the regular driver and the extra driver. The relevancy of the foregoing background regarding the return to work of employees after the strike and the matter of seniority will be apparent as we con- sider the Parker case. To ignore and to fail to explain such background factors in considering the circumstances of Parker's suspension and subsequent discharge would be unfair. I have no intention to do anything less than to appraise all relevant circumstances. By the same token, I shall not ignore other background facts regard- ing Parker that are also relevant to my consideration of his case. Parker's Background with the Company Parker was hired on August 2, 1957. In the same year, 1957, Respondent acquired the bus company, previously owned and operated by another employer. As far as driving ability and competence was concerned, Parker had an excellent driving and accident record. His appearance and dress as a driver were also very good. With respect to the Union, there is no evidence that Parker was ever a union officer or committeeman or that he was conspicuous for union activity as such, in the period 1957-64, prior to, or during, the strike in December 1963-January 1964. Parker, like over 190 other employee strikers was discharged in early January 1964. During 10 For many years the union-company contract had contained a union-security clause and all the unit employees were members of the Union. Employees such as Rutherford, Bolduc, and Adler, had, like other employees, been discharged on December 31, 1963, and early in January, because of strike participation. n Strikers who had applied for employment at an early date, particularly while the bulk of the strikers were unwilling to return as new employees, became relatively highly placed on the new poststrike seniority roster. Thus, an early returned striker, who had worked for the Company for 2 or 3 years and who had been relatively low on the prestrike se- niority roster, might find himself in a high position on the new seniority roster and ahead of men who had 10-20 years of seniority prior to the discharges and prior to rehire as new employees There was also a relatively small number of employees who had neither struck nor had they been discharged and their seniority on the new roster ran from their original date of employment. TRAILWAYS OF NEW ENGLAND, INC. 513 the strike, Division 1318, the local union , organized, programed, and engaged in a picketing campaign at the Company's Boston and New York terminals, with the picket lines being manned by members of the Union pursuant to the Union's scheduling. Although many of the discharged strikers had performed picket duty dur- ing the strike and such evidence was elicited , inter alia, in the course of the presen- tation of evidence regarding alleged discriminatees in the original instant case, there is no evidence that Parker performed any picket duty. In addition to the evidence that Parker had a good driving record in the 1957-63 period and in the period when he was rehired in 1964, there is evidence regarding other aspects of Parker as an employee which is appropriately considered in this Parker-Company background section of my Decision. On August 28, 1957, a letter was sent to Parker by Sullivan , who at the time was superintendent of the Company's operations . The letter read, inter alia, We are in receipt of a complaint regarding the use of foul language on the loading platform of the Port of Authority bus terminal in New York City ... . Safeway Supervisors and Dispatchers at New York . are entitled to the same courtesy and respect you show the Trailways of New England personnel. You will be penalized 1/4 cent per mile for 30 days as a corrective disciplinary measure. On November 2, 1959, District Supervisor Wirth wrote to Superintendent Sullivan, enclosing a report of Dispatcher Scholem regarding Parker on October 31 , 1959.12 The substance of the incident as described by the supervisors is that Parker came to the terminal and gave the dispatcher "a lot of mouth and argument " because some other drivers were in the hotel room and awakened Parker who was sleeping before his New York to Portland return trip. As described, "Mr. Parker was very boisterous and was using very foul language in front of all the passengers . and "other operators" (drivers ).13 Wirth wrote that a representative of another bus company, who was present , had corroborated Scholem's account. Wirth stated that if he had been present he would have taken Parker out of service and sent him home; Superintendent Sullivan wrote to Parker on November 5, 1959 , referring to the above incident on October 31, and advised Parker that he was suspended for one round trip from Portland to New York and that any recurrence might result in a more severe penalty.14 Stokes came with the Company in February 1962, as operations manager under Powell, who was vice president and general manager . Stokes' office, like that of Powell, was in the Boston terminal . In the fall of 1963 , according to Stokes' credible account, Dispatcher Baxter telephoned Stokes at the latter 's home. Baxter said that Parker was refusing to drive his bus on his scheduled trip to New York because the fire extinguisher on the bus was empty and that it was contrary to ICC regulations. In the conversation with Baxter, Stokes learned that en route with the bus from Portland to Boston , Parker saw a fire in a building and had stopped the bus and had used the extinguisher on the fire . Stokes said to Baxter that Parker knew that the Company did not have a service garage in Boston ; that there were no extra extinguishers at the terminal ; that Parker knew he had already used the extin- guisher's contents and Stokes said that Parker should complete the trip to New York and there replace the extinguisher. Baxter said that he had already told this to Parker but Parker still refused to drive the bus. Stokes then advised Baxter to inform Parker that he was to complete the trip to New York or to go home and not bother to come back . Parker thereafter completed the trip.15 Stokes did not direct Baxter to write up a report on the incident nor did he sub- sequently summon Parker to his office .16 Stokes did speak to Parker one day in the terminal regarding the incident but imposed no disciplinary action. About 3 weeks after the foregoing fire extinguisher incident, Stokes had another call from Baxter to the effect that Parker was refusing to drive his bus from Bos- 12 The Wirth letter is dated September 2, 1959 , which evidently is a typographical error since the attached report of Scholem is dated October 31 and Wirth 's letter cites that date. 12 The quoted portions are from Wirth's letter and Scholem's report. 14 In 1959 or 1960, Union President Harrington was discharged for cursing and using foul language . That matter was arbitrated and the discharge was upheld. 's Stokes testified that Baxter told him that Parker had used some foul language during the conversation with Baxter regarding the extinguisher. 10 Baxter was a dispatcher at the Boston terminal. 257-551-67-vol. 16 0-3 4 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton to New York because the inside of the windshields was dirty. Stokes said, "Well, give him some paper towels and let him wipe them off." Baxter replied that he had already done so but Parker had refused, saying that the inside had to be washed. Stokes said that since Parker had taken the bus from the Portland garage where it was supposed to be cleaned, the time for him to have complained was in Portland where there was a maintenance man to take care of such matters.17 Stokes instructed Baxter to tell Parker either to drive the bus to New York or to go home and stay there. A short time after Stokes had hung up the telephone after talking with Baxter as described, Parker telephoned Stokes. Stokes gave him the same order as he had previously given to Baxter for Parker. Parker then agreed to drive the bus to New York and did so. Later in December 1963 as we have seen, a strike occurred and the strikers, including Parker and some 190 others, were discharged.18 After the Union had advised the strikers to seek employment with the Company on any terms available, Parker, as well as others, applied for employment as a new employee. Parker was rehired by Powell, vice president and general manager of the Company. Among the steps taken by Parker in his efforts to be hired were personal appeals to Powell, including a telephone call to the latter's home and a letter written by Parker to Powell. In the aforesaid letter, dated February 15, 1964, Parker stated, inter alia: I will be the first to admit that I have made mistakes while with Trailways and at a time or two I have spoken out of turn; however, in every instance these events took place years ago and I paid for these errors through discipline with which I accepted. I feel that I also learned from these mistakes and I'm sure you will agree as you and your office have been strangers to me for a consid- erable length of time [presumably this latter statement means, not being called to the office for disciplinary reasons]. Parker's aforementioned reference to past mistakes and speaking "out of turn" evidently can refer to the incidents previously described herein.19 Stokes testified initially that he did not recall specifically that Powell had asked his opinion of Parker in the period prior to Parker's rehire in April 1964. Stokes did state that he recalled telling Powell that there was trouble or a problem between Parker and Baxter. The witness then testified that Powell had discussed the possible rehiring of Parker with him and had asked his opinion sometime prior to Parker's rehire. Stokes states that he told Powell that he did not consider that Parker was a good employee; and he recommended that Parker not be rehired. The witness tes- tified that his opinion of Parker was based on the Baxter-Parker incidents aforede- scribed and Stokes' opinion that Parker had a reputation of being, and was, a "loud mouth." Stokes states that he considered that Parker used poor judgment in mak- ing remarks in various places and under certain circumstances. Stokes testified that quite often he had heard that, in the New York terminal, Parker, while still employed prior to 1964, would hold forth and expound to other employees on some subject or other relating to the Union-Company contract or employment conditions in a loud voice that could be heard "all over the terminal." According to Stokes, there was nothing specific that he had heard about Parker declaiming as abovementioned but simply that it was in the rather open forum of the terminal in a resoundingly loud voice. Stokes stated that as far as he was concerned, "any driver has a right to question the interpretation of the contract. We expect them to do it in a gentlemanly way, and Mr. Parker did not always do it in a gentlemanly way; but he certainly has the right to question it." Parker was rehired by Powell on April 24, 1964, as we earlier noted. The Events in 1964 In the period following his return to work in April 1964, Parker went to the local union office and secured the names of rehired company employees who were delin- quent in their union dues. Over a period of months, according to Parker, he talked to 40 to 50 such employees in hotel rooms or around the company bus terminals. 17 As previously indicated, Parker's regular run was from Portland to New York with a stop in Boston. ' The strike did not involve any incident in which Parker was involved. 16 Parker testified that in one of his interviews with Powell in 19114, before his rehire, Powell referred to Parker's troubled relationship with Baxter. TRAILWAYS OF NEW ENGLAND, INC. 515 The gist of what Parker said was that the men should support the International Union and thereby secure the restoration of their seniority.20 For the most part, the responses were varied and unexceptional. Some men said they intended to pay their dues and a few expressed less than enthusiasm. One of the drivers thus approached by Parker told him, according to Parker, that if the International or the Division was sending Parker out to talk about dues they were sending a very poor represent- ative. Parker, also at different times during this period, told the various supervi- sors, in the course of conversations, that eventually the Union would get the entire situation, including seniority, straightened out, and that Parker would be back on his Portland run. There was no particular visible or verbal reaction to Parker's aforesaid views and the strongest expression was by a supervisor named Hunter. Parker pointed out to Hunter the higher position on the seniority list which Parker predicted he would eventually regain and that he would be again on the Portland run. Hunter simply said that Parker would never make it. Parker testified that he had also said to Stokes that he would be glad to be back in Portland on his run and that, when he did so, he would invite Stokes to his seniority party. Stokes' sole reaction was to laugh at this sally, apparently good humoredly. No one in management appeared disturbed by Parker's views or argued with him or told him to stop his activities. It was evident that the strikers who had remained loyal to the Union would all prefer to have their original seniority rights. The Company, as a result of numerous meetings and communications with union offi- cials and union counsel, was well aware of the union position. It was clear that the Union had not accepted either the discharges or the reinstatements of strikers as new employees and that the entire matter was and would be a matter of litigation and/or arbitration unless either party made some major departure in positions that had already become very firm. The Union had filed charges with the Board. More- over, the Company was aware that practically all the union men who had been rehired after the strike had been union men for years and that no discernible action of repudiation of, or withdrawal from, the Union had taken place among substan- tially all the strikers, rehired or otherwise.21 In any event, in view of the foregoing and other evidence in the record, I cannot agree with the General Counsel's con- tention that Parker's talking to the union men about their dues or his expressed confidence in, and adherence to, the union position and its eventual success, was a bombshell or a cause of great concern to the Company and that Parker had become a marked man in the period after his rehire on April 24, 1964.22 Stokes testified that around the middle of May 1964, various drivers and dis- patchers started telling him that he should do something about Parker because Parker had been making insulting and profane remarks to other drivers in the termi- nals. About this time, Stokes received a telephone call from McShane, the Com- pany's regional manager in the New York terminal. McShane said that Parker was asking for a salary advance because he had rented an apartment which required an advance rent payment. At Stokes' request, McShane then put Parker on the telephone. Stokes said to Parker that since Parker wanted a favor from the Com- pany, Stokes wanted a favor from Parker. Stokes told Parker that he understood that Parker was using some profane and insulting language to other drivers and Stokes said that he wanted Parker to stop such conduct. Parker said he would and Stokes approved the pay advance. Parker testified that on June 5, 1964, he was driving a company bus and stopped at Amesbury, Massachusetts, where a company employee, a driver named Bolduc, 20 As previously noted, all the rehired strikers were hired as new employees Parker had been #22 on the prestrike seniority list but was #83 on the new list. In 1964 Parker was working on the extra (standby) board, whereas formerly he had the regular run from Portland to New York and return. 21 Without going into the Section 8(a) (5) aspect of the original case, which had a great many facets and which is no longer before us, it may be noted that the General Counsel and the Union contended. based on evidence adduced, that at a formal meeting between the parties in March 1964, the Company had admitted that the Union represented a majority of the poststrike working force While denying such an admission, Garrett, assist- ant to the company president, stated that the Company did believe that the Union repre- sented a majority of the rehired strikers but that the Company doubted the Union's majority status among the new employees hired during or after the strike 22 There is no evidence that the Company was aware of Parker's dues activity and knowl- edge of such activity was specifically denied by Stokes and other supervisors. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boarded the bus after presenting a proper pass receipt to Parker .23 It is clear that Bolduc was in his driver's uniform and, in accordance with accepted procedure, was cushioning (riding as a passenger on a pass ) en route to a terminal point where he was to pick up his bus for an assigned run 24 Parker drove the bus to Portsmouth. Passengers were aboard and some left at the latter terminal. According to Parker, Bolduc was sitting toward the rear of the bus Parker states that he went back to Bolduc and asked to see his pass. Bolduc produced his wallet and showed the pass. Parker asked to see the other side of the pass and Bolduc showed it . Parker dis- covered that Bolduc had not signed his pass and told him it had to be signed or Bolduc would have to buy a ticket. Parker states that Bolduc refused , whereupon Parker went into the terminal and telephoned Stokes in Boston , recounting that Bolduc had not signed his pass and apparently saying or indicating to Stokes that Parker would not carry Bolduc on his bus. Stokes told Parker to let Bolduc ride the bus. Parker did this and proceeded to Portland , the terminal point of the trip. At Portland the passengers dismounted and Parker was about to take the bus to the terminal garage. Bolduc moved to a seat in the center of the bus intending to ride to the garage since he was going to drive the same bus on his trip out of Port- land. There was nothing exceptional about another driver staying on a bus until it reached the garage. Parker, however, testified, "And I didn't feel too crazy about that I should take him down to the garage . I told him to get off the bus or I was going to have a cop take him off, which I knew I couldn 't do, but I got out and made believe I was looking for a cop." Parker states that he called Bolduc a "scab" two or three times because Bolduc had gone back to work before the Union told him to do so and because he was not paying his dues. The witness also testified that he told Bolduc he was weak and yellow. Bolduc's only rejoinder to all this, according to Parker , was that the Union was no longer in the Company and that Powell, the general manager, would be interested to know about a "guy" like Parker. Parker dared Bolduc to report him but Bolduc said that he did not intend to do so. I consider the foregoing testimony of Parker basically accurate and it does not conflict materially with Bolduc's version . However, I consider that Bolduc's account accurately reflected some details omitted by Parker and I credit Bolduc. Bolduc states that when Parker came to the rear of the bus at Portsmouth and asked to see his pass there were passengers seated nearby . When Parker discovered that Bolduc had not signed his pass he told him he would have to get off the bus. Bolduc said he would not get off and started to sign the pass . Parker left and called Stokes in Boston . When Parker returned he again looked at the pass, saw it was signed, and said, in the presence of passengers, "There you son-of-a-bitch, we've got that done, didn't we." Some of the passengers commented to Bolduc that they 2' Bolduc had first been employed by the Company in April 1963 and therefore , having about 8 months' seniority before the strike, he was low on the prestri ke seniority list Bolduc was discharged like the other strikers early in January 1964. When the Company thereafter announced that it would receive applications from strikers as new employees, Bolduc was -among the first to apply . He did this before the Union had instructed its mem- bers to apply as new employees Bolduc was hired as a new employee around January 17, 1964, and was considerably higher on the poststrike seniority list than lie had been on the prestrike seniority list. 2'As far as appears the only prior contact between Parker and Bolduc occurred in a hotel room in New York in May 1964 . The room was provided by the Company for its drivers on layover and Bolduc was assigned to a particular room with three beds When Bolduc arrived , Parker and another driver were already in the room Parker placed his feet on the pillow of Bolduc 's bed and told the other driver not to talk to Bolduc because the latter was a G- D- scab . Bolduc then called the company dispatcher and asked for another room, stating that he did not believe he could get much sleep in that room Bolduc was given another room. Bolduc did not report this incident prior to Parker's dis- charge in June 1964 and the incident was not a factor in the discharge However, I regard the incident as having some relevancy on matters of credibility and in my appraisal of the principals involved in this case and their conduct . It was on the same basis that I referred to conduct in 1957 and 1959 however undeterminative of the immediate issues in the case. By the same token , I would have noted the fact, if it existed ( which it did not), that Parker had been chairman of the union grievance committee in 1958 and had incurred company hostility over a legitimate and proper grievance presentation . or, if Parker had, in 1959 , received a national award as best driver of the year or some such fact that could bear, however remotely, on the 1964 events before me. TRAILWAYS OF NEW ENGLAND, INC. 517 did not understand what was going on between the two drivers. The trip resumed, with Parker grinding gears, jamming brakes to the extent that an elderly passenger, who had arisen for his hat, was thrown against a seat and was helped back to his seat by other passengers. At Portland, after the passengers left, and Bolduc remained in order to ride to the garage since he was scheduled to drive the bus to New York, Parker started calling Bolduc "a G- D- scab and bastard and such language as that and acted like he was nuts." En route to the garage Parker told Bolduc that he would be around a hell of a lot longer than Bolduc and that he had his name written all over Bolduc and was going to get him personally. At the garage, Parker called over some of the garage employees, pointed to Bolduc and said that he was a G- D- scab. Stokes' testimony confirms the already admitted fact about Parker telephoning from Portsmouth to Boston about Bolduc not having signed his pass. Stokes states that he told Paiker to let Bolduc ride the bus and that was the extent of the con- versation on the telephone. Shortly after the incident, Supervisor Hunter told Stokes that he had spoken with Bolduc regarding the affair. According to what Hunter told Stokes, Bolduc had said that Parker had made a scene on the bus in front of passengers about Bolduc not having signed his pass and had threatened to call the police to have Bolduc ejected 25 Stokes was apparently prepared to let the above matter rest but about a week or so later he received a telephone call at his home from a driver named Adler. Adler said that there had been a Trailways driver riding on his bus whom he did not know, but he had learned that the individual was Parker. In any event, Adler told Stokes that this man Parker, without provocation, while they were going from the Portland terminal to the garage, called Adler a yellow bellied bastard and said that Adler would not be working for Trailways very long. Stokes testified that Adler was upset and apprehensive concerning the incident. Adler testified that at Portland, while they were on the bus driven by Adler and were about to drive down to the garage, he spoke to the driver in uniform who had earlier boarded the bus with a pass. Adler asked the man if he had the 9:30 bus back and received the reply that it was none of his G- D- business. En route to the garage, without passengers, the aforementioned individual said his name was Robert Parker and he was telling Adler that the latter was a yellow bellied bastard and that Parker would be with Trailways a hell of a lot longer than Adler. Parker told Adler that he had better save the pennies because he was not going to have his job much longer.26 Adler said that he wished that they could all work together. Parker said that he could not work with a "yellow bellied bastard" like Adler. Adler stated that he was not going to report Parker and Parker told him he was too G- D- yellow to do so. Adler did call Stokes later and reported the incident. Parker testified that he was riding the bus because he had a 9:30 trip out of Port- land. Adler asked him if he was going to pull the 9:30 run and Parker states that he replied that he would tell Adler if he thought it was any of his business. Adler then said that "I don't know who you are and if you value your job, you will want to change your attitude." Parker replied that he knew who Adler was, "you went back to work before the Union told us to." Parker told him he had a -yellow streak down his back and was a weakling. Adler said that he had told Powell that he would drive for nothing except breakfast and dinner. When Adler said that he would report Parker to Powell, Parker told him to go ahead, "I will be here long after you are gone when the union gets things straightened out." I believe that Parker used stronger terms than his testimony regarding Adler would indicate and I credit Adler in this respect. In the course of the conversation, n There is no doubt in my mind that Parker knew that Bolduc was a driver for the Com- pany and that he was entitled to ride the bus. The incident was created by Parker because of his animosity toward Bolduc. It is not important whether I approve of an employee's activity if the activity is protected by Section 7 of the Act But, in my opinion, Parker was not engaged in protected activity. I would agree entirely, for instance, that an em- ployee in a plant could engage in union or concerted activity regarding wages But this does not mean that he may, with impunity, stand on a work table in the plant during work- ing hours and denounce and curse the foreman a few times a day. Adler testified at one point that he was afraid but he qualified this by saying that he was not "exactly afraid ; I didn't know who he was or what he was like 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as Parker testified, Adler did refer to his expressed willingness to drive a bus even if he received only breakfast and dinner.27 Parker, following the incident with Adler, then drove the bus to Boston that night. At Boston, dispatcher Forsythe informed Parker that he was removed from service and was to report to Stokes the following morning. According to Parker, "I told him okay. I didn't ask him why. There was no conversation." 28 When Parker reported to Stokes' office on the following morning, Stokes said that he was going to do the talking for a change. According to Parker, Stokes referred to Parker's harassing and agitating fellow drivers and said he ought to discharge Parker; he said he did not know whether Parker would be there longer than Adler or not (in reference to one of Parker's remarks to Adler); he told Parker that if the latter had strong feelings about the situation in the Company, it was not up to him but that it was up to the courts to decide the issue. Stokes gave Par- ker a 4-day suspension, beginning June 18, 1964. Stokes' version is quite similar to that of Parker. Stokes testified that he told Parker that he was not to tolerate Parker upsetting other employees on com- pany property with passengers and employees around and that he would not tolerate Parker using profane and insulting language to other employees. After his 4-day suspension, Parker returned and again met with Stokes. Parker states that Stokes told him that he would not tolerate any more agitation or harass- ment of employees; Stokes also referred to Parker's having threatened to call a policeman to have Bolduc ejected from the bus and Stokes said that was silly and assinine . Parker testified that he said, "Ya, I guess it is." Parker also testified that Stokes said that "This thing [the strike and its aftermath] was out of their hands . let the courts settle it." Again, Stokes' version is not basically different. I find that Stokes said, among other things, that he wanted Parker's assurance that he was going back to work and that he would leave the other employees alone: he told Parker that he could not control what he did on his own time, off company property, but that Parker could not continue his past conduct. Parker agreed to desist and returned to work. Later that day Parker was told to see Powell. He did so. Parker testified that Powell told him that it was a good thing for Parker that Stokes and not Powell had handled the situation. Powell said that he would not tolerate any more agitation and harassment. Powell said that he did not want drivers operating buses on the high- ways with things on their mind. Parker said that these things did not affect him on the road. Powell, according to Parker, said that the Company needed Parker and Parker needed the Company and he wanted the men in the Company to work together. The letter sent to Parker from Stokes regarding the suspension read: This will confirm the interview held by both Mr. Powell and myself regarding certain incidents that have occurred during the past few weeks in which there was evidence that you were harassing and otherwise agitating certain of your fellow operators. It was pointed out that for the good of the company and the morale of our people, we cannot tolerate such actions as this. 21 In his brief, the General Counsel cites a statement made by Respondent 's counsel in the course of the General Counsel's cross -examination of Adler The statement is • "The pass incident had nothing to do with the suspension ." In context, the situation was that the General Counsel was endeavoring to go into the details of the kind of pass that Parker had shown to Adler when Parker first boarded the bus. Although I did permit the General Counsel to proceed in this area, I believed that the Parker -Adler pass aspect in itself was not the crux of the situation either from Adler 's standpoint or Parker' s. Adler did not probe the pass and made no issue or comment thereon The pass itself had nothing to do with the subsequent conversation between the two drivers However, when counsel for the Union stated that ". .. the pass incident was one of the direct incidents which allegedly led to this suspension ," Respondent 's counsel stated : "The pass incident had nothing to do with the suspension ." The record is clear that the pass incident itself , as distinguished from the ensuing incident on the bus, had nothing to do with Parker 's subsequent suspension 21 If Parker had had only the rather innocuous conversation with Adler that Parker de- scribed, it seems strange that his reaction to what Forsythe told him was as set forth above No surprise was expressed and no question asked. It would appear that Parker was aware why Stokes wanted to see him , namely the strong castigation meted out to Adler by Parker as described by Adler in his testimony. TRAILWAYS OF NEW ENGLAND, INC. 519 As discipline for these offenses, you were suspended for a four-day period from June 18 . . . I believe it was made very clear to you and you thor- oughly understand that any future incidents of this type will result in immedi- ate dismissal. After Parker's return to work on June 21, 1964, Stokes testified that around early August some drivers and dispatcheis, principally drivers, remarked to him at various times that Parker "was up to his old tricks again, nothing specific . ." When the General Counsel asked Stokes if he had investigated the reports at the time, Stokes said that he had not. He said " . . . I had nothing specific to go on, and frankly I didn't like to make the drivers squeal on somebody else. They felt they were tipping me off to something, it was up to me to make my own investigation. But that is difficult to do if you don't have a specific date or time to go on." 29 Before pioceeding with a description of further events, I believe the foregoing paragraph merits some comment at this point. The General Counsel's basic theme regarding Parker's suspension and later discharge is that Parker was an outstanding union leader among the rehired strikers and that in order to rid itself of this leader, the Company, and particularly Stokes, sought and obtained a pretext to discipline Parker and to ultimately discharge him. Commenting on the particular aspects referred to in the preceding paragraph, supra, the General Counsel, in his brief, states: One could reasonably ask why wasn't Stokes "soliciting this kind of informa- tion?" Why didn't he alert the entire Trailways system to Parker's activities? Why didn't he demand that Parker cease and desist from his activities and police such a demand . . . . The answers to all searching questions concerning the motivations of John W. Stokes in his discharge [infra] of Robert M. Parker indicate only one conclusion-that Stokes was interested only in covering his excision of Parker as a union adherent and agitator and these incidents were not the basis of his discharge but were, rather a means to an end ... . The General Counsel does not suggest that the pre-September 1964 incidents did not occur but is critical that Stokes was not soliciting derogatory information about Parker and was not making every verbal report into a major cause, including investi- gation, written reports , and the compilation of a dossier and a voluminous adverse record of incidents .30 While pursuing this contention , the General Counsel is making the basic contention that Stokes regarded Parker as a union leader whom he was determined to be rid of on some pretext and that all disciplinary action, the suspen- sion and discharge, was pretextuous and attributable to antiunion considerations. It would be my opinion that if the evidence showed that Stokes or other management people had been going around to drivers and supervisors asking them if they knew of, or had heard of, any statement or conduct of Parker, that was at all out of line or, if written reports on Parker were at all times required , and if supervisors were alerted to watch Parker constantly, and if severe discipline was meted out to Parker by Stokes at the earliest and less serious incidents , an inference of discriminatory motivation might well be reasonable . But this is not the picture . The evidence, thus far described, and my observation of Stokes and his testimony do not indicate a supervisor out "to get" Parker even for activity that was unprotected by the Act, let alone protected activity. I do not know whether Stokes was a good supervisor or a poor supervisor. Nor do I purport to say whether an aggressive supervisor is good or bad. I do believe, however, on the basis aforementioned , that Stokes was not an ze At an earlier point, there was Stokes ' testimony about an oral report he had in May 1964, about Parker's conduct, and which led Stokes to say to Parker, who was asking for a salary advance , that since Parker wanted a favor , Stokes was asking a favor in return, namely that Parker should cease his improper conduct ( supra). The General Counsel had asked Stokes , in effect , why he had not gone into the May matter more vigorously and thoroughly . Stokes replied , "I usually tried not to say too much to another driver In the first place , I wasn't soliciting this kind of information I appreciated receiving it, but I wouldn't give [go] into detail with the driver and put him in [on] the spot [ of being a squealer]." 30 The incident that the General Counsel , without offering evidence on the point , suggests may not have occurred is one involving driver Swisher . Stokes testified that in early Sep- tember a dispatcher mentioned to him that Swisher had said that Parker had tried to run Swisher 's bus off the highway . Stokes testified that before he had a chance to look into the matter he had another report of a New York incident for which he discharged Parker. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aggressive individual, at least as a supervisor. He was not looking for contention or conflict with Parker or for reasons to criticize him. As long as Parker was an employee, I believe that Stokes would have been pleased not to have any reports about Parker. Far from being "after" Parker, the evidence indicates that the con- frontations were practically forced upon Stokes unless he was to relinquish his supervisory function entirely. Returning now to our chronicle and analysis of events, we come to September 6, 1964. On that date, Parker was on "protection" (standby) at the New York termi- nal. Two other drivers, Devine and Grady, were also present. Grady had been first employed in August 1963. He was a discharged striker who was rehired in March 1964. Devine's employment with the Company began in May 1964. On September 6, Devine and Grady had driven to New York from Hartford, a distance of approxi- mately 117 miles. They were "incomplete." 31 Parker had not driven at all.32 A driver named Rybacki drove his bus into the terminal.33 Shortly thereafter, Rybacki was sent out again on another trip. Parker, Devine, and Grady were in the area and speculated together as to where Rybacki had come from on his trip into the New York terminal, and whether he had been complete or incomplete. Parker went to the dispatcher's booth and asked dispatcher Gola where Rybacki had come from. Gola said that Rybacki had been incomplete. Parker returned to Grady and Devine with the aforementioned intelligence. Parker suggested that Devine ask Gola the same question since Devine was scheduled to be the next driver to go out. Devine did so, and returned with the same information as had Parker. The three men dis- cussed among themselves the question of what made a man complete or incomplete. They did not know the answer but felt that a man who had driven 160 miles or more was or should be considered complete. Not long after the foregoing, Supervisor Lonnie Walsh came over to the men and, according to Parker, asked Parker whether he was trying to stir up trouble with the men 34 Parker replied that all he did was to ask where Rybacki had come from. Walsh said, where did he come from? Parker said he did not know and all that Gola had said was that he was incomplete. Walsh and Parker then walked toward the dispatch booth. Walsh asked Gola where Rybacki had come from. Gola said, Worcester.35 Walsh departed and Gola said to Parker that Parker had been a "ball- breaker" ever since he had known him. Parker was surprised since Gola was a mild individual who had always been friendly toward Parker and the latter said he had never caused Gola any trouble and simply wanted to know where Rybacki had come from. Gola said that from then on he would go strictly by the book in any dealings with Parker. About 5 minutes later, Gola returned and apologized to Parker, saying he had been upset and tired, and they shook hands. Later, on this same date, Walsh came and talked with Parker and the other two men. Parker and Devine told Walsh that they felt that Rybacki had been complete and that 160 miles made a man complete; they told Walsh, however, that there was nothing in the company rules defining completeness. Walsh said that he did not know what constituted completeness either, but indicated that he would find out. The next day Walsh came to Parker and, in friendly fashion, placed his hand on Parker's shoul- der. He said he had talked to Powell 36 on the telephone and it had been decided that 160 miles should constitute completeness.37 Walsh said to Parker that this should answer his question. It is apparent that the foregoing incident constituted a proper and legitimate exercise by Parker of his rights under the Act. Judging from Walsh's conduct, as 31 The terms "complete" and "incomplete," in effect, refer to the number of miles a driver has driven insofar as such mileage either does ("complete") or does not ("incom- plete") constitute sufficient work Thus, to take an obvious example, a man who had secured and had driven a run of 50 miles would ordinarily be incomplete and would be en- titled and/or required to have another trip in preference to another man who had just driven 375 miles " Parker testified that of the three, Devine would have been the next man to go out on a run. 33 Rybacki had been first employed in February 1962 He was a discharged striker, re- hired on January 23, 1964, after the strike, and after the Union had directed the strikers to apply 3a Apparently, the reference was to Devine, the only new man involved. This and sub- sequent events are described by Parker. 35 Approximately 187 miles from New York. 39 Walsh testified that he had talked to Stokes 37 A bulletin or notice was then issued to that effect. TRAILWAYS OF NEW ENGLAND, INC. 521 described by Parker, above, when Walsh was informed by Parker what the incident was all about, Walsh did not resent Parker's conduct 38 The only person disturbed by the affair was Gola and he apologized to Parker39 No report was written up about Parker and he was not disciplined in any way The event appears to have been a minor incident. On or about September 7, 1964, Parker had "cushioned" (rode as a passenger) to Boston from New York on a company bus. When he received his paycheck on September 7, he noticed that he had not been paid for 100 miles. The next day he spoke to someone in the office named Kearney, pointing out the foregoing shortage. Kearney said he knew about it and it was because dispatcher Max Songer had said that Parker had cushioned to Boston on his own and did not cushion pursuant to Songer's telling him to do so . Parker said he would like the shortage to be made up in his next check. Kearney told Parker that Parker would have to talk to Stokes about it before this could be done. Parker then telephoned Stokes and said that he had been shorted for 100 miles in cushioning to Boston from New York . Parker testified that Stokes said that he had noticed that Songer had written up a report on the matter but Stokes felt that Parker was not at fault and that there evidently had been a misunderstanding as to what Songer did or did not tell Parker . Parker asked Stokes to arrange a meeting for Parker with Lonnie Walsh in New York. Stokes said he would try and that day when Parker arrived in New York he had a meeting with Walsh .40 Parker told Walsh his story. Walsh said that Songer had told Walsh that he had not told Parker to cushion to Boston and opined that there must have been a misunderstanding. Parker testified that he, Parker, said , "Lonnie, there is no misunderstanding here. This man [Songer ] told me to cushion to Boston ." Parker went on to tell Walsh that Songer was "a very arrogant person" and that "a lot of the boys . really detest the man." Parker states that Walsh said that he had spoken to Songer several times about his conduct ; but Walsh then advised Parker to take care of himself and not to mind other people 's business . Parker said he liked his job but he could not work and be afraid of Songer and, according to Parker, Walsh agreed . Walsh told Parker he would be paid for the 100 miles and he was. Walsh testified that he had received a telephone call from Stokes to check into Parker's complaint and he did .41 Walsh asked Songer what the incident was all about. Songer, in substance, stated that he had not told Parker to cushion to Boston but had told him to report or standby in New York. Walsh suggested that there might have been a misunderstanding . Songer said that possibly this was so. Walsh then said that if there was a misunderstanding Parker should be given the benefit of the doubt and should be paid. Thereafter , Walsh met with Parker. Walsh told Parker of Songer's version and suggested that there had been a misunderstanding. Parker felt that Songer had a grudge against him and that he was deliberately trying to do Parker out of his cushioning pay. Parker said he wanted to take up the matter with the company president , Marvin Walsh, brother of Lonnie Walsh. Lonnie Walsh said the Company wanted to be fair and would give Parker the benefit of the doubt as to whether he had misunderstood Songer's order and would pay Parker.42 as In this connection , it is clear that no one knew at the time what constituted com- pleteness If two trips covered a total of 400 miles, the Company would have to pay for the driving whether one driver or two drivers performed the task From the standpoint of safety and efficiency as well as employee morale, it was probably better that two men divided the trips The man proximately affected by the Rybacki affair was Devine and he was a new employee hired after the strike and most likely was either a nonunion man or a member of some other union In any event, there is no evidence that Gola or the Company had any desire to treat him unfairly 39The circumstances indicate that when Walsh first came out to speak to Parker, his only information had come from Gola and his initial approach to Parker apparently re- flected whatever Gola had told him Walsh testified that when lie first came out he told Parker not to be chasing the new drivers up to the dispatchers ' booth because it was a lot of trouble for the dispatcher After speaking to Parker , Walsh's words and actions were sympathetic or tolerant rather than hostile 10 Stokes had arranged the meeting , as he testified , at Parker 's request 41 Songer testified and I have also resorted to his testimony 42 Songer testified that the only incidents ( other than the 1964 cushioning matter) he had had with Parker occurred in 1962 or 1963 and these were minor "run-ins " He had told Parker on these occasions to put on his driver ' s cap and Parker always had given him an argument. Diivers were required by compary rules to wear their caps as part of their uniform. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 18, 1964, near midnight, Parker was on "protection" (standby) duty, in uniform, in the New York terminal. He was in the drivers' room immedi- ately next to the dispatch office.43 Parker testified 44 that, while he was in the drivers room, driver Rutherford was also there talking to dispatcher Gola. Parker did not hear the conversation. After Rutherford left the drivers' room and was outside, Parker said to Gola, what is he (Rutherford) doing, complaining that he does not have a new bus. Gola said, no. Parker then said, the damn scab is lucky he is work- ing. About 30 minutes later, according to Parker, Lonnie Walsh came in and asked Parker to step over to one of the exits to the New York terminal.45 When Parker did so, Walsh asked, what is this I hear about you calling Rutherford a scab. Parker said he had not called him a scab but had referred to him as a scab. Walsh told Parker that he had better learn to keep his mouth shut around there or Walsh would make an issue of it, remarking that he did not know what all the friction between the men was about. Parker returned to his protection duties and in the morning was told by dispatcher Sheridan that Parker was to go to Boston to see Stokes. Parker went to the New York terminal and headed for the dispatch office to speak to Walsh. Instead of Walsh, Parker encountered McShane. The latter asked Parker, "what's this about the incident last night?" Parker said that Walsh had told him that he would not make an issue of it if Parker kept his mouth shut. McShane said that it was kind of late for Parker to keep his mouth shut and that he could have had a long career with the Company but chose to do otherwise. McShane said that he, McShane, was making an issue of the incident. He said he had a form 99 on the matter 46 and had called Stokes. McShane said that he did not know what Stokes would do with Parker but McShane knew what he would do if Parker was his employee. McShane said that Parker was and has always been a wise guy and referred to Parker calling Rutherford a scab "last night . .. [Rutherford] was just walking out of the dis- patch booth." Parker said he referred to Rutherford as a scab but did not call him one and that Rutherford had left the booth. Parker went to Boston and saw Stokes on Monday morning, September 21. Stokes told Parker that he had warned him about harassing and agitating certain drivers and had warned him that, if there was any more of such conduct, Parker would be discharged. Stokes then referred to Parker calling Rutherford a scab. Parker said he only referred to Rutherford as a scab. Stokes then got a copy of the letter he had given Parker when he suspended him earlier in the month. Stokes said that he could not understand why Parker, who said he valued his job, engaged in such harassment. Stokes said that he had to discharge Parker in accordance with the 43 We have a drawing, photographs, and a good deal of testimony relating to the locus Both the dispatch office and the drivers' room were in the immediate area where buses loaded and unloaded passengers There is a wall separating the terminal lobby from the area where the buses stand. Doors in this wall provide ingress and egress from the lobby to the buses. The dispatch office is a rectangular walled structure approximately 12 feet by 71/2 feet. The front width of this office is contiguous with the wall separating the lobby from the bus area If there was no dispatch office, what is the front width of the office would simply be part of the aforedescribed wall The rear width of the office is approxi- mately 12 feet from the front width. There is a door in the aforedescribed rear width wall into the lobby area The two solid lateral walls of the office are, naturally, approxi- mately 12 feet long Approximately in the middle of the front width wall of the office is a window. If there had been no other construction, a person in the office could look through the window into the bus area However, the window, in fact, opens into the drivers' room. The latter is also rectangular with solid lateral walls approximately 13 feet long The width of the drivers' room is approximately 6 feet The office window is roughly in the middle of the rear width of the drivers' room. The front width of the latter has a door that opens into the general area of the buses but a bus parking or standing space is not directly in front of the door A person coming out of the drivers' room door who stopped in the doorway and turned his head or head and body to the right would see a bus parked at an angle if a bus was in that parking space The right front of the bus would be ap- proximately 6 feet from the side wall of the drivers' room The right front of the bus and the bus door would be about 10 feet from the doorway to the drivers' room. " Until otherwise indicated, all the following is Parker's version. 4" No passengers or others would normally be around this area 40 Form 99 is a report form in which supervisors and employees are supposed to write up any unusual incident. TRAILWAYS OF NEW ENGLAND, INC. 523 warning in the aforementioned letter but that Parker could appeal to Powell. "At that time I [Parker] told him I would accept his decision and I dropped it." Although Paiker later changed his mind and 2 days later did appeal to Powell, the question is, if Parker believed that all that he had done was to make a simple and unprofane reference to Rutherford as a scab when Rutherford was not present, and that this was the only allegation made to him by Stokes, why did Parker at the time accept his discharge from Stokes with such mildness, as he testified. Not long before, in the Songer incident when only a few dollars were involved, Parker's apparent dedication to his principles and his propensity, that can be described at least as a disposition to willingly argue, was such that he was reluctant to accept his money on the basis of the proposition that he and Songer might have misunder- stood each other on the matter of cushioning to Boston. Parker had insisted on his own view of the facts. He was right and Songer was wrong and deliberately wrong. Parker had wanted to appeal to the president of the Company for total vindication where it was his word, not against another employee, but against a supervisor; the supervisor, although he believed in his own version as against Parker's, was willing to admit that Parker could have misunderstood his order. This and all the other evidence in the case concerning Parker is a picture of a man who does not easily accept matters that are contrary to his own views and convictions. In fact, the General Counsel's basic theory is that Parker was a courageous union leader who always stood up for the right and for his view of the right. Yet, on September 21, Parker has described his acceptance of total discharge premised solely on a reference to a man as a scab. Nor can it be said that the evidence in the case, including Parker's versions of his contacts with Stokes, projects a picture of a tough, irascible, closed-minded supervisor to whom some sheep-like employee might be afraid to argue his discharge or to at least say that he would appeal it or fight it. Indeed, even in discharging Parker, Stokes took the initiative in suggesting to Parker, that he might appeal to Powell but Parker said he would accept Stokes' decision discharging him. These considerations have raised a question in my mind whether Stokes, on September 21, did confront Parker as described by the latter or whether heavier ammunition had been produced on that occasion and thereby accounted for Parker's acceptance of the discharge at the time. As mentioned, Parker changed his mind a few days after September 21 and appealed to Powell. Stokes and Powell were both present. Parker started off by ask- ing Stokes to suspend him for 10 or 30 days rather than to discharge. Stokes said the previous suspension had been ineffectual and that Parker was a rotten apple or a weak link. Stokes said he was not going to tolerate harassment from any driver and, in effect, said that, if it had not been for men such as these that Parker had harassed, the Company would have foundered and "we would all be out of job." Stokes asked Parker, according to the latter, why he had called Rutherford a scab. Parker said that he was not paying his dues and Parker had referred to him as a scab. Powell interjected with some heat that this is a free country and that, in sub- stance, it was up to Rutherford whether he did or did not want to pay dues. Also, according to Parker, Powell said that five dispatchers were "down on" Parker because he was so "outspoken." 47 Powell then said he had another engagement and told Parker to return the next day. When the parties met again, the meeting was brief with Powell saying that he was not going to tolerate harassment and agitation. Parker states that Powell said that a lot of the new men would be swayed by Parker and were following him and he was bad for morale 48 Powell made it clear that he was affirming the discharge. Parker announced to Powell that he was going to the National Labor Relations Board since "you [the Company] have fired me because I referred to a man as a scab .. ." Powell said that they would see each other at the Board and they shook hands. "Without, at this point , assessing the other aspects of Parker's testimony , I do not believe that Powell ever described Parker by the word "outspoken " 48 On this, I believe only that Powell may have said that Parker was bad for morale. I do not believe that he said anything about the new men being swayed by Parker and following him The new men were those hired during the strike or thereafter Many of them had relatively high seniority compared to reinstated strikers like Parker and with an- tagonistic interests , they were not being swayed by Parker. There is no evidence that Parker sought to organize new employees hired during or after the strike or that they were following Parker in castigating persons whom he referred to as scabs or otherwise follow- ing him. Indeed, there is a question of what Parker was doing that could be followed by other employees. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before leaving Parker's testimony, some mention is to be made of certain testi- mony elicited on cross-examination. Parker was asked, inter alia: Q. Do you remember referring to one guy as a God-damned scab-do you remember that? A. I don't know. If I can recall, no. It's possible I was talking about Ruth- erford that I could have said that, yes, sir, very possible. Q. And do you remember referring to somebody else as a no good son of a bitch of a scab-do you remember that? A. That probably could have been also when I was talking about Rutherford. Dispatcher Gola testified that around midnight on September 18, Rutherford came into the drivers' room of the terminal and spoke to Gola who was on the other side of the window separating the dispatch office area from the drivers' room. As every driver customarily does, Rutherford asked Gola what bus number he had. Gola told him the bus number and the track where the bus was. There were two other drivers in the room when Rutherford entered but their names were not recalled by Gola Parker was standing at the open door to the drivers' room through which Rutherford had entered 49 After the aforedescribed brief conversation between Rutherford and Gola, the former left in the same way in which he had entered, through the open door. As Rutherford passed Parker and was beyond him, going to the right toward the bus area, but still visible to Gola, Parker called Rutherford "a God-damn-son-of-a-bitch of a scab." At the time, Parker had his back to the open door facing to the right of the doorway toward a parked bus that was loading passengers. Gola, who was at the other side of the window in the dis- patch office, testified to the foregoing. It is undisputed that Rutherford heard no remark by Parker on this occasion. Gola was scheduled to conclude his work that evening and leave some time between 12 and 1.30 a.m. Before leaving he wrote a form 99 report. The report said: It irks me and I think the Company should feel that when a man degrades another's character note should be made. Operator Parker on previous occa- sions and today was the last straw when Parker called operator Rutherford a "scab," in more words than this. Rutherford does an excellent job and more men like him we need. I thought it high time to bring this to attention.5° Assistant Dispatcher Forster testified that around midnight on Friday, Septem- ber 18, he was working in the dispatch office in the area near the open window that looked into the drivers' room. Gola was also in the same area. Parker had been standing at the door of the drivers' room or just outside for some time. When Gola was at the window, Parker came into the relatively small drivers' room and when he was approximately halfway in or around 61/2 feet from the window he started saying something to Gola. Forster had been on the telephone and was generally conducting his business and did not hear the conversation between Gola and Parker. Forster went over to speak to Gola about some business matters and about that time Gola had to answer the telephone. Parker was still talking and, seeing Forster, he concluded whatever he had been saying and, looking at Forster, remarked "Well, that is it. That is this f-ing company" and started walking out of the room. Forster did not see Rutherford coming in or leaving the drivers' room.51 Forster did not discuss the incident with Gola. Shortly after midnight on this night of September 18, Lonnie Walsh stopped by the dispatch office as was his practice 52 Gola told Walsh that, shortly before Walsh's arrival, Parker had been cursing and making derogatory remarks about Rutherford. Walsh went out to the bus area where a bus was parked and where there were several drivers as well as passengers standing. Parker was standing in 49 Gola states that the door was normally left open about 80 peieent of the time The door was open the night of September 18. 50 Gola was at one time a seminary student, studying, evidently, for either the priesthood or the minstry. He testified that he was generally reticent insofar as speaking with others was concerned and that he seldom used even the word "hell " A day or two later Gola wrote a second report on the incident but, while longer, the second report is about the same as the first report. 51 Parker in his testimony, above, stated that at the time he spoke to Gola the only other person present was the "teletype mail clerk." The dispatch office has telephones and a teletype machine and evidently receives mail We believe that the man Paiker referred to was Forster. The latter testified that he was not acquainted with Parker and had never spoken with him but that he knew Parker by name and by sight Si What follows is Walsh's testimony. TRAILWAYS OF NEW ENGLAND, INC. 525 this locale which was outside and to the right of a person emerging from the door of the drivers' room. Walsh asked Parker to accompany him to a nearby terminal exit, away from other drivers and passengers. Walsh states that he told Parker "what had been told me [Walsh], and he didn't deny it." Walsh then said, "Parker, we are not going to have you doing this. You are a pain. You keep to yourself. And this is the second time I told you to mind your own business." Respondent's counsel then asked Walsh various questions about the location of the exit and details about the bus and passengers and where Parker was when Walsh first came out of the terminal to take Parker over near the exit and why he took Parker aside to talk to him. Counsel then said: Q. All right. Is that the extent of it? A. That was just about the extent of it. Counsel then asked Walsh if anyone else around that time had told him about other cursing by Parker. Walsh, for the first time, then stated that Forster had told me that Parker had referred to the Company as "the God-damn f'in company." Forster testified that on the night of September 18, shortly after the Parker inci- dent, Walsh had come into the dispatch room. Gola spoke to Walsh,53 according to Forster, and Forster then told Walsh what he had heard Parker say. As Walsh testified, he then went out and spoke to Parker but, in speaking to Parker, he referred only to the contents of the Gola report, not to what Forster had told him. In short, we have evidence in this posture , regarding the Forster aspect: (1) In describing , on direct examination by Respondent's counsel, what occurred on September 18, Walsh initially mentions only that Gola reported to him, and that Walsh then spoke to Parker about the Parker words heard by Gola. (2) After the foregoing, and following a question by Respondent's counsel about other reports, Walsh for the first time, mentioned what Forster had told him. (3) From Walsh's description of what he told Parker, including the admonition that this was "the second time I told you to mind your own business ," it is clear that the contents of the Forster report were not referred to. The Forster statement that Parker had called the Company a vulgar and derogatory name was the first instance of this type attributed to Parker in this record. It is a different type of conduct from Parker's past harassment and agitation involving other drivers and Parker's speaking of the issue of completeness , above. Calling the Company a derogatory name is not and was not intended to be encompassed in the warning, to mind your own business. (4) Moreover, Walsh testified that, in speaking to Parker on September 18-19, he did not bring up the contents of what Forster had reported. (5) Walsh reported to McShane regarding the September incident. He was asked, Q. What exactly did you tell Mr. McShane? A. I told him exactly what Dispatcher Gola told me and what I said to Parker. Again, no reference to what Forster had told him. A few questions later, in response to a direct question about the Forster report, Walsh did say that he also told McShane about what Forster had reported although he admitted not having mentioned that aspect to Parker. (6) Forster who testified, as we have seen, that he reported orally to Walsh on the night of September 18 that Parker had called the Company, "a f-ing Com- pany," was later told to make a written report on the incident. Forster did so on September 20. His reports read: While working in the dispatch office, operator Parker came to the window and started talking to Tom Gola and me. He seemed to be bitter and had a few remarks which were not called for and I did not pay too much attention to him and went about my work. I do not remember what he said but I remember he was a little outspoken. Respondent's counsel, apparently aware of the difference between Forster's testi- mony and the contents of his written report, called to the witness' attention that neither the words attributed to Parker nor "words to that effect" appeared in the report. Foster said that the explanation was that he had never seen such language as Parker's set forth in an official company form and that is why he wrote the report as he did. I might be persuaded to reconcile the testimony with the report if the latter had recited that Parker used vulgar, or improper, or highly improper, or obscene, or insulting, or derogatory, or extreme terms or words or language in 51 As Gola and Walsh testified, the former told Walsh about Parker. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referring to the Company. But "seemed to be bitter"; "a few remarks . . . not called for"; "do not remember what he said" [the pithy and succinct phrase attrib- uted to Parker] ; "a little outspoken" are hardly reconcilable with the testimony. Although not offered as an explanation, by Forster, I have considered the possibil- ity that Forster wrote his report as he did because he was reluctant to get Parker in trouble. This does not hold up, however, since Forster and Walsh testified that Forster had previously told Walsh exactly what Parker said and the "fat" was already in the fire. Moreover, Walsh later had instructed Forester to write up the incident and the report was the result of this order. (7) As we shall see, McShane, Stokes, and Powell testified that McShane, in reporting the September 18 incident to Stokes and Powell, reported verbatim both Parker's castigation of Rutherford and Parker's obscene references to the Company. In interviews with Parker, admittedly, neither Stokes nor Powell referred to the latter. They spoke in substance of harassment of other drivers, past conduct of a similar kind and past warnings and discipline relating to this same kind of conduct. There was no past record of epithets describing the Company and no past warnings or discipline relating thereto. If, which seems unlikely , Stokes and Powell regarded Parker's references to the Company as unimportant or tolerable , it would appear that it at least would have received a "moreover" reference. That is, you Parker have again been insulting and harassing your fellow employees in spite of past warnings, moreover, you have shown an intolerable contempt and dislike for your employer by referring to it as "a f- company." The letter that was written to Parker after his discharge and which recited the reason for the discharge does not mention the obscene or vulgar reference to the Company. The letter refers to the June suspension for continued harassment of fellow drivers ; it recalls that Parker had been warned that repetition "of this type of incident" would result in discharge; and then states that on September 19 two such incidents were called to Stokes' attention.54 I am now at a point where I am prepared to answer one of several questions before me. Among the questions are: (1) what Parker's conduct and statements were on September 18; (2) what was reported to Stokes who discharged him (and to Powell); (3) why did Stokes discharge Parker? It is possible that Parker made the statement attributed to him by Forster but, on the evidence before me, described above, I have substantial doubt that he did. I am not prepared to find and do not find that Parker called the Company, "a f- company," on September 18. I find that, although the aforesaid alleged remark may be asserted to be one of the reasons for Parker's discharge, it was not one of the reasons. The ultimate question still remains, what was the reason for the discharge and whether the discharge was in violation of the Act.55 The next question to be answered is what did Parker do and say on Septem- ber 18. I have considered Parker's testimony , both on direct and on cross- examination and I have given the same consideration to the testimony and reports of Gola and Forster, all three 'of these men being the most immediate witnesses; as well as to the testimony of Rutherford, Walsh, McShane, Stokes, and Powell; and to the other evidence in the case that bore upon the issue.56 I believe that on September 18, Parker, being on protection duty, was in the drivers' room, in various parts therein, and that he moved about in the course of time, sometimes standing in the doorway, sometimes outside, and again inside. "Besides the Rutherford Incident, Parker testified that Stokes also mentioned, on Sep- tember 19 , the incident regarding driver Moses , described hereinafter. es In the light of my findings regarding the statement attributed to Parker about the Company, the matter has been considered with respect to credibility issues and motivation throughout the case. I believe that the assertion, that Parker had referred to the Company in the words described heretofore , arose either in September 1964 , at the time of the events and emanated originally from either Forster, Walsh, McShane, Stokes, or Powell, either from the top to the bottom of that chain, or from some intermediate point, or from the bottom to the top, or from some intermediate point , or the matter emanated after Parker's discharge. w Although the view has been expressed often that a fact finder's findings are entitled to practically unassailable weight if he has based his findings of credibility on Ills observa- tions of the demeanor of the witnesses (or, more importantly, if lie so states), and that it is otherwise if witness demeanor and impression are not invoked , I, as fai as I ani aware, have always made, or, have endeavored to make, findings on the basis of the entire record which always includes my appraisal of the witnesses as well as all other evidence in the record The same situation prevails in the instant case TRAILWAYS OF NEW ENGLAND, INC. 527 Around midnight, Rutherford entered the drivers' room, spoke briefly to Gola at the window aforedescribed and headed out of the room. Parker was either near the doorway or around the center of the room when Rutherford first entered. Almost immediately after Rutherford had finished speaking to Gola and headed out, Par- ker walked nearer to the vicinity of the window and spoke. In substance, Parker said, either, what is the "G- D- scab"; or what is the "s-o-b of a scab"; or what is the "G- D-, s-o-b of a scab," complaining about, that he is not get- ting a new bus . . .? Gola and Foster on the other side of the window made no comment. Parker's remarks were probably made as he was half turned toward the open doorway through which Rutherford had just gone. Parker then walked to the doorway and stood there looking toward the parked bus. I do not believe that Parker was in the doorway when he made his remarks or that Rutherford was next to Parker at the time of the remarks. If Parker had made his remarks at the door- way and Rutherford was near him and in sight of Gola from the window, as described by the latter, then Rutherford would have heard the remarks. He did not 57 As a matter of fact, the distance from the doorway to the window was about 13 feet and Gola was beyond the window, a foot or more beyond, and the window was not large, about 3 feet high by 2 feet wide. If Parker spoke at the doorway, Rutherford was more likely than Gola to have heard the remarks. Gola reported to Walsh; the latter reported to McShane and McShane to Stokes and, later, to Powell. The testimony of each has been considered on this aspect. The report that reached Stokes, who discharged Parker, is the most important. There might have been some variation in phraseology in their various oral reports among the various persons involved. I find that, in substance, the report that came to Stokes from McShane, as well as the other reports, was that Parker had called Rutherford a "G- D- s-o-b of a scab" while in the doorway of the drivers' ioom at the New York terminal. It is possible that the report to Stokes was that the words were, "G-D- s-o-b," but, while I think otherwise, and have so stated, the variation, in my view of the matter, is not material. Considering the testimony of Parker and Stokes, as well as the other evidence in the case, I find that Parker was discharged in September 1964, for substantially the same reason for which he had been warned and suspended for 4 days in June 1964. The reason was that Parker persisted, while on duty and in uniform and while on company property, in publicly referring to certain fellow employees in profane or obscene and insulting language. The continuation of such conduct had a reasonably anticipative consequence of harassment, provoking overt strife among employees, a possible exchange of blows, and a generally serious effect with respect to reasonable working harmony and the conduct of business. The passenger aspect was also to be legitimately considered since with such overt conduct by an employee on more than one occasion, passenger awareness of open internecine hostility and anger among company personnel driving the buses was not to be dismissed as a tenuous factor or possibility. I do not believe that the incidents leading to Parker's suspension a few months earlier can be divorced from the occurrence on Septem- ber 18. Although Rutherford did not hear the September remarks and although I do not believe that they were heard by passengers who were about 10 feet from the opened-door drivers' room, these considerations, in this case, are not determina- tive. Nor was the Company obliged to await some dramatic denouement of Parker's conduct. The incident on September 18 indicated that Parker, while on duty, in uniform, on company property, was either unwilling or unable to exercise reason- able control over himself as an employee. His opinions and his legitimate union or concerted activity were not the issue. Nor was it the issue that Parker was being required to like certain individuals, or to associate with them socially, or to refrain from supporting the Union in its efforts to restore the seniority of Parker and other strikers. In the circumstances of this case, I do not regard Parker's conduct as activity protected by the Act. It is not my position that when a union man uses profanity, obscenity, or the word "scab" in referring to a nonunion employee or to an employee of whose con- duct he does not approve, that the union man may therefore be discharged per se. There are many situations where strong personal views and terms may be used without reprisal. Aside from physical violence, there is a broad toleration of name calling in the rough and tumble of a picket line. Also, if Parker's views and epithets had arisen during the course of a discussion or argument between two employees in which each had expressed strongly opposite views on the union situation, my opin- ion might be a different one. Certainly, if Bolduc, Rutherford, Adler, and others, 57 Rutherford testified that he heard no remarks of Parker on this occasion 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had taken the initiative in goading Parker about his lower seniority or had other- wise been bringing up the topic of the strike and the contending positions, strong rejoinders by Parker, including epithets, might well have constituted protected activity. But in no instance in this record did any employee initiate any discussion, let alone aggressive and provocative words, with respect to Parker on the subject of the Union or with respect to Parker personally. Parker had a right to his views and no one required that he like Bolduc, Ruther- ford, Adler, and others. Parker was not required to associate with any individual, eat dinner with him, go bowling with him, or otherwise fraternize. But, the Com- pany had the right to expect that Parker and other employees, while on duty and on company property, would conduct themselves with reasonable civility toward each other and to refrain from cursing and insulting one another. By way of analogy, an employee might have very strong feelings against a fellow employee because of the latter's race, color, religion, or political views.58 The employer has a legitimate interest in having his employees work together harmoniously and, as a minimum, that they exercise enough control so that one man is not hurling insulting racial or religious epithets at another while on company property and time. If one man displays such an uncontrollable tendency to use insulting and profane racial or religious epithets in referring to certain other employees, the employer could rea- sonably remove such an employee even though none of his utterances may not have been heard by the employee against whom it was directed. Section 7 of the Act protects the right to engage in union activities or to refrain therefrom. An employer has not only a right but an obligation to exercise reason- able control when one employee or group of employees, on company time and property, seeks to infringe upon the rights of other employees. If all the conduct in the instant record was reversed, i.e., Parker, as a union man, was being repeatedly harassed and referred to as a union goon or union racketeer , or union pimp, plus some profane adjectives, the Company would have the right and the obligation to protect him. A union employee, who quits his job because of excessive harassment on company time and property by antiunion employees, may well succeed in proving a constructive discharge in violation of Section 8(a)(3) of the Act if the employer countenanced such conduct and did nothing to prevent the harassment. The same would be true in reverse, if a nonunion man was forced to quit. The employer need not stand by mutely and helplessly until someone quits his job; or until one man punches another because of being cursed ; or until the entire plant is split into open warring groups , engaging in overt statements and acts of hostility against one another while in the course of their employment. Parker was at liberty to be strongly loyal to the Union and to work for its suc- cess. He could sign up in the Union those nonunion employees hired during the strike; he could solicit dues payments and engage in any other legitimate union activity. If he found conditions intolerable he could go on strike or picket or other- wise seek to advance his own and the union cause. But, in our opinion, he could not, with impunity, engage in the personal guerilla warfare of invective and harass- ment against fellow employees while at the same time deriving the benefits of active employment. I can understand his feelings of resentment ; I can appreciate the ele- ment of courage displayed; but I cannot conclude that his conduct was protected by Section 7 of the Act. It is my opinion that Parker's role in the Union was actually a very minor one. In addition to the fact that he at no time was a union officer or committeeman or that he even engaged in picketing during the strike, his union activity upon his rehire was limited. He asked some rehired employees to pay their dues. There is no evidence that Stokes, Powell, Walsh, or any other supervisor was aware of this activity. Moreover, in my opinion, the Company was not concerned with whether the union men paid their dues or not. The Company was aware that many of the rehired strikers had been union members for years and no rehired striker had noti- fied the Company of revocation of his dues checkoff authorization 59 Indeed, the sa We are all familiar with the insulting racial epithets and the epithets used with regard to other areas. "Scab" happens to be one of the epithets used to express contempt In the labor field and it is meant to be insulting and to express contempt GU Even discharged strikers, who returned and were rehired before the Union had so directed, denied that they had told the Company that they no longer wished to be rep- resented by the Union. Among those making such denials in their testimony were Ruther- ford, Bolduc, and Adler. TRAILWAYS OF NEW ENGLAND, INC. 529 General Counsel states in his brief that "almost all of the employees who were rehired continued their adherence to the Union.so I do not believe that Parker's role was that of the bellwether of the Union whose removal was deemed essential by an employer who was determined that its employ- ees would never be represented by the Union. Parker did engage in some activity that was protected under the Act, such as raising the matter of when a driver was complete. This particular episode irritated one of the lower supervisors, Gola, and, possibly, to a lesser degree, Walsh. However, in my opinion, Parker was not dis- charged for such activity and if he had not engaged in the conduct for which he was discharged and for which he had earlier been suspended, he would have remained in the Company's employ. This is also true with respect to the episode regarding Parker being paid for cushioning to Boston, supra. Parker's discharge was not based on a pretext. The Company suspended him in June and discharged him in September for harassing his fellow employees and not because he was loyal-to the Union or because he had spoken up for his rights.si I do not conclude that Parker's suspension or discharge were in violation of the Act and dismissal of the complaint allegation is recommended 62 B0 Although Parker's activity of speaking to employees about dues was protected under the Act whether he or the Union had initiated the idea, the fact is that there is no evidence that any union officer or trustee asked Parker to check up on dues or that they were aware that he was doing so Parker states that he secured the list of names from the secretary of the Union in Boston. Apparently, the secretary was not the secretary officer of the Union but a female clerical employee who performed secretarial work in the local union office and who was acquainted with Parker This secretary was in the bus atter other passengers had left and was riding from the terminal to the garage in Portland with Parker when he unleashed his castigation of Bolduc, as earlier described. In short, while I can commend Parker's initiative regarding the dues, proper perspective does not place Parker in the role of the beleaguered standard bearer to wlioni the Union and other union members had entrusted their cause and their hopes for the future. ai The General Counsel states in his brief . "It is clear, Parker's discipline of June 1964 resulted directly from his `harassment and agitation' of other drivers " I agree but ap- parently we differ on the question of whether Parker's harassment of others is conduct protected by the Act 63 There are some other items cited by the General Counsel on which I wish to comment. I do not regard it as significant that a week after Parker's discharge, McShane agreed with an employee's comment that if it had not been for the strike, Parker would still be working One reasonable construction is that, if there had been no strike, Parker would have still had his old seniority and would not be resentful of people taking his place; also, if there had been no strike, there would have been no scabs and harassment and, hence, no discharge. About the time of the Rutherford incident, Stokes testified that he had word of the Moses incident from a dispatcher. Moses had been hired during the strike and he came from the South. On one occasion, Moses, who apparently was scheduled to drive to Port- land, observed to the dispatcher or someone other than Parker, that it was cold in Port- land. Parker told him he should go back down South where lie came from if lie did not like the cold Suppose employee A does not like employee B because of the latter's race B makes some comment about conditions to someone other than A. A then interposes and asks B why he does not go back to Africa or wherever he came from If he does not like conditions. This is a form of uncalled for comment and needling calculated and.intended to harrass. It was not an expression of solicitude or friendliness as Parker sought to portray it in his testimony. Its counterpart would be, if, when Parker made some comment about conditions or working conditions at the Company, a nonunion employee interposed with the comment, "if you do not like conditions, why don't you leave or go to work else- where, or go back where you came from " While not a major incident in itself, the Moses incident was in contemporaneous context with the Rutherford and other incidents in June to September 1964. The fact that the Company, after Parker's discharge, secured written reports from var- ious persons concerning Parker's conduct, is not determinative. Obviously, matters of which the Company was unaware prior to the discharge could not be reasons for the dis- charge Since Parker had told Powell and Stokes that lie was going to the NLRB over his discharge, the Company was entitled to secure the aforesaid material since it could at least bear on reinstatement As indicated previously, if the Company had been soliciting written reports on Parker prior to his discharge, an element of a discriminatory plan might be discernible 25 7-551-67-vol 160-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I have found that the Company is an employer engaged in commerce within the meaning of the Act and that the Union is a labor organization within the meaning of the Act. I have also found that Robert M. Parker is an individual employee within the meaning of the Act. Finally , I have concluded that a preponderance of the evidence on the record as a whole does not sustain the allegation that Parker was suspended , in June, 1964 , or discharged, in September, 1964, in violation of Section 8(a)(1) and ( 3) of the Act. RECOMMENDATIONS It is recommended that the complaint alleging violations of Section 8(a)(1) and (3) of the Act with respect to Robert M. Parker be dismissed. Luisi Truck Lines and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 524, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independent. Case 19-C,A-30041. Au- gust J5, 1966 DECISION AND ORDER On April 27, 1966, Trial Examiner Wallace E. Royster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. Ile also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party filed an answering 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 this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The National Labor Relations 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 brief, and the entire record in this case, and hereby adopts the find- ings,' conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. i The Respondent 's exceptions to the Trial Examiner 's Decision are directed, in part, to the credibility resolutions of the Trial Examiner . We will not overrule the Trial Exam- iner's resolutions as to credibility unless a clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here Standard Dry Wall Products, 91 NLRB 544 , enfd . 188 F 2d 362 (C A. 3). 160 NLRB No. 45.