M & M Charter Bus Lines

M & M CHARTER LINES, M & M Charter Lines, Inc. d/b/a M & M Charter Bus Lines and Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America M & M Charter Lines, Inc. d/b/a M & M Charter Bus Lines , and Chauffeurs , Sales Drivers & Helpers, Local 572, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 31-CA-640 and 31- RC-473. November 6, 1968 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On June 10, 1968, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Finally, the Trial Examiner found that the Union's objections to the election conducted in Case 31-RC-473 were meritorous, and recommended that the election be set aside and a second election be directed. Thereafter, the Charging Party filed excep- tions to the Trial Examiner's Decision and a supporting brief. Respondent filed cross-exceptions and a brief in answer to the Charging Party's exceptions. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross- exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner, with the reservations specified herein. INC. 605 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that Respondent, M & M Charter Lines, Inc., d/b/a M & M Charter Bus Lines, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election in Case 31-RC-473 conducted on March 17, 1967, be, and it hereby is, set aside. [Direction of Election3 omitted from publication.] 1 The Trial Examiner found that "extra" drivers were eligible to vote if they averaged 10 hours or more of work per week during the 6 weeks prior to February 11. Under the circumstances of this case (see, for example, footnote 14 of the Trial Examiner' s Decision), we conclude that this standard is reasonable ; but in so holding, it should be noted that we are adopting a standard for this particular case and not a general rule governing eligibility of part -time workers in all situations. The Trial Examiner found that there were 70 employees in the unit and that the Union obtained valid authorization cards from only 30 employees . The Union contends that five additional employees should be found to have properly designated the Union. We find it unnecessary to determine the validity of this contention since the Union would not have a majority even if the cards of these employees were considered valid designations of the Union. Similarly, since we are finding that the Union did not have a valid majority, we need not determine whether, as contended by Respondent , certain of the cards counted by the Trial Examiner should have been found invalid. 2The Trial Examiner found numerous violations of Section 8(a)(1). In the absence of exceptions thereto, we adopt such findings pro forma. The Union filed exceptions to the Trial Examiner's failure to find additional violations of Section 8(a)(1). Since these alleged violations are simply cumulative and would not affect the Recommended Order which we are adopting , we do not find it necessary to pass on these exceptions. 3An election eligibility list , containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 31 within 7 days after the date of issuance of the Notice of Second Election. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear, Inc., 156 NLRB 1236. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner Based on a charge filed by Chauffeurs , Sales Drivers & Helpers, Local 572, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, hereinafter referred to as the Union, on March 14, 1967, as amended on April 27, 1967, the complaint in Case 31-CA-640 was issued August 2, 1967.1 Said 1The complaint was amended in several respects during the course of the hearing. 173 NLRB No. 96 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, as amended, alleges that M & M Charter Lines, Inc., d/b/a M & M Charter Bus Lines, hereinafter referred to as the Company or Respondent, engaged in conduct violative of Section 8(a)(l), (3), and (5) of the Act. Respondent by its answer denies that it committed the unfair labor practices alleged in the complaint. By order dated October 17, 1967, Case 3l-RC-473 was consolidated with Case 31-CA-640 for a hearing on certain of the objections filed therein to conduct affecting the results of the election. Pursuant to notice a hearing was held in Los Angeles, California, on 19 dates between October 17 and November 16, 1967,2 both inclusive, before me, duly designated as Trial Examiner. Briefs were received from all of the parties within the time designated therefor. Upon the entire record3 in this proceeding and upon observation of the witnesses as they testified, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The parties stipulated as follows: That Respondent is a California corporation engaged in the operation of a fleet of buses, and its gross volume of business annually exceeds $250,000, and its purchases directly from outside the State of California exceed $50,000 annually; and then add to that stipulation that this stipulation is only for the purpose of this hearing.4 During the course of the hearing, counsel for Respondent stated on the record that, for the purpose of this hearing, Respondent admits the allegations in paragraph 3 of the complaint. Accordingly, it is found, as alleged in said paragraph, "Respondent is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act." II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is a labor organization within the meaning of Section 2(5) of the Act. III. RESOLUTION OF THE ISSUES HEREIN A. Background and Summary of Undisputed Facts Respondent operates a fleet of buses in the Southern California area from its place of business in Harbor City, California. The Company furnishes, in the main, five types of services which may be summarized as follows: 1. Regular school runs which continue through the entire school year for the transportation of pupils to and from various schools; 2. Charter runs which are ordered, usually on a one-time basis, by groups or entities such as clubs, schools and various organizations for trips to special events or sites. Included in this type of service are runs chartered by the United States Army to and from various military establishments; 3. Commuter runs which apparently are regularly scheduled runs to provide transportation to the public between various locations; 4. Fog runs which provide transportation to air line passengers between airports serving the Los Angeles area when one or the other airport is closed down by fog; and 5. Racetrack runs which are runs scheduled during the racing seasons at various race tracks in Southern California and Tijuana, Mexico, to transport the public from various points to the tracks. The operations of the Company are handled by two office divisions, the school bus division and the charter division. The office work of the school bus division is handled by Frank Mannino and John Allen. Frank Mannino is the Company's vice president, an admitted supervisor, and is in charge of the school bus division. John Allen, who has the title of head school bus driver, not only works in the office but also spends part of his day driving a bus on a school route. This office operates on a five-day basis during the school week and is charged with the responsibility of operating only the regular school runs. The office work of the charter division, which is charged with the responsibility of operating all the other runs, is handled by John Simpson, Willard M. Gregory and Thomas Nicolello. It appears that other people sporadically help out in the operations of the charter office division. This office operates 7 days a week, although on weekends, particularly Sundays, the amount of work may be light and may not require the presence of someone in the office for an extended period of time, since a call service is utilized. Both of the aforesaid offices are in one building which also contains a contiguous waiting room for drivers. Dominic Mannino, a brother of Frank Mannino, is president of the Company and his office is in another building on the premises. The drivers are divided into four categories: full-time school bus dnvers, part-time school bus drivers, charter drivers and extra drivers. An explanation with respect to these various categories of drivers is set forth in more detail herembelow. Sometime in January 1967, the Union initiated an attempt to organize the Company's employees by soliciting authoriza- tion cards. On February 3, 1967, the Union filed a representation petition in Case 31-RC-473 in which it sought an election for a unit described as follows: All bus dnvers in all lines of service, part-time and full time, in the employer's Southern California operations. By a letter dated the same day, the Union requested the Company to recognize and bargain with it claiming that it "has been designated by a majority of your [the Company's] employees to represent them for the purpose of collective bargaining ..." On that date, however, the Union did not represent a majority in the unit described in the aforesaid petition. By letter dated February 7, 1967, the Company informed the Union that Mrs. Edwin Selvin had full power and authority to represent it. By letter dated February 8, 1967, Selvm informed the Union that the Respondent was willing to 2October 17, 18, 19, 20, 23, 24, 25, 30, and 31; November 1, 2, 3, 6, 77 8, 9, 14, 15, and 16. During the course of the hearing the Trial Examiner ruled that he would receive , after the close of the hearing , additional exhibits from the parties consisting of summaries of exhibits in the record. Accordingly, it is hereby ordered that Resp. Exh. 29-A, 29-B, 29-C, 29-D, 29-E, and 29-F be received in evidence . Likewise, C. P. Exh. 8, 9, 10, 11, 12, and 13 are received in evidence. 4It appears that the Company operates buses in both the Southern California and the San Francisco Bay areas . Only its operations in the Southern area are involved in this proceeding. M & M CHARTER LINES, INC. 607 have an election. The Union continued to solicit authorization cards from the driver-employees, and General Counsel and Charging Party contend that, as of February 11, 1967, the Union had obtained a sufficient number of authorization cards to establish the Union's claim of majority representation. Pursuant to the aforesaid petition filed on February 3, 1967, a stipulation for certification upon consent election was executed by the parties and an election by secret ballot was conducted on March 17, 1967, under the supervision of the Board among employees of the employer in a unit agreed appropriate. The said unit was described as all bus drivers, including regular part-time drivers of the Company, and excluding all other employees and all supervisors as defined in the Act. According to the Report on Objections, a tally of ballots "showed that of approximately 72 eligible voters, 65 cast ballots, of which 16 were for and 41 against the Petitioner, with 8 challenged ballots." On March 24, 1967, the Union filed timely objections to conduct affecting the results of the election. On March 10, 1967, the Company discharged driver Robert Fogle. On April 7, 1967, the employment of driver Eleanor Mayfield terminated and on or about April 11, 1967, the employment of driver John Pottorff terminated. B. The Issues 1. The unit and the employees therein, (a) Description of Unit and "eligible voters." The first issue is as to the appropriate description of the bargaining unit. This issue involves the matter of determining the "eligible voters" as of February 11, 1967. (b) The "extra drivers." The first related issue is whether or not the "extra drivers" as a class, or certain individuals among them, should or should not be counted in determining the number of employees in the unit who, as of February 11, would have been considered as eligible voters, in order to determine whether the Union did or did not represent a majority of them as of said date. (c) The employment status of four individuals. A second related issue is whether four certain individual drivers were employed as of February 11, 1967. (d) The supervisory status of Allen and Nicolello. A third related issue is whether Allen and Nicolello are or are not supervisors, in order to determine whether they are to be counted among the eligible voters in the bargaining units 2. The authorization cards. The chief issue relating to the authorization cards is whether or not various of the authorization cards may be properly counted toward establish- mg the Union's claim of majority representation (as of February 11, 1967) in order to determine whether the Union possessed a sufficient number of valid authorization cards to establish its said claim. There is also a related issue as to whether Donald McGuire's possession of an honorable with- drawal card from the Union is sufficient evidence to establish that he authorized the Union to act as his bargaining representative. 3. Union's claim of majority representation. Whether the Union was designated as bargaining representative by a majority of the "eligible voters" as of February 11, 1967. 4. Independent violations of Section 8(a)(1). There are a considerable number of issues as to whether Respondent violated Section 8(a)(1) of the Act by the following conduct (a) Unlawful interrogation, threats of reprisal, and re- stramt; (b) The posting of antiunion propaganda in its offices; and (c) Unlawful surveillance of a union meeting on March 14, 1967 6 5. The discharge of Robert Fogle. Whether Fogle was discharged in violation of Section 8(a)(3) and (1) of the Act. 6. The termination of Eleanor Mayfield's employment. Whether the circumstances leading up to the termination of the employment of Eleanor Mayfield would support a finding that Respondent engaged in conduct violative of Section 8(a)(3) and (1) of the Act. 7. The termination of Garland Pottorff's employment. Whether Respondent constructively discharged Garland Pottorff in violation of Section 8(a)(3) and (1) of the Act. 8. Warning notice to Ed Blando. Whether or not Respon- dent violated Section 8(a)(3) and (1) of the Act by a warning notice given to driver Ed Blando. 9. The alleged unlawful refusal to bargain. Whether or not Respondent refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. A related issue is whether or not the Bernel Foam7 remedy is warranted in the circumstances of this case. 10. The objections to the election. Whether certain of the objections filed by the Union to the conduct affecting the election are or are not meritorious. C. Resolution of the Issues 1. The unit and the employees therein (a) Description of the unit and "eligible voters: " The General Counsel and the Union contend that the description of the unit set forth in the complaint is that of an appropriate bargaining unit. The Respondent contended, during the course of the hearing, that the appropriate unit should include all bus drivers without regard to the regularity of their employment. It is noted that for the election held on March 17, 1967, which was based upon a stipulation for certification upon consent election, the unit was described as "all bus drivers, including regular part-time drivers" which is the unit set forth in the complaint. It is well established that, as a general rule, "casual" employees are not eligible to vote in a Board-conducted election on the principle that such employees do not have a sufficient community of interest with those regularly em- ployed to-be given a voice in the determination of a bargaining representative. It is concluded that the description of the unit set forth in the complaint is an appropriate bargaining unit. The record discloses that the parties litigated the issue of whether certain of the bus drivers should or should not be 5The resolution of the issue of Allen's supervisory status is also required in order to determine whether certain acts he is alleged to have engaged in constitute violations of Section 8(a)(1) of the Act. 6Although the complaint , as amended, alleges that the Respondent engaged in unlawful surveillance on both February 22, 1967, and March 14, 1967, there is no evidence in the record relating to the allegation of a violation on February 22, and, therefore , there is no issue with respect thereto. 7Bernel Foam Products Co., Inc., 146 NLRB 1277. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD classified as casual employees, in order to determine who, among the bus drivers, would have been eligible to vote if the Board had conducted an election on February 11, 1967.8 The Respondent contends that there were 77 drivers in the employ of Respondent as of February 11, 1967, and that they all should be counted as eligible voters on said date. The parties stipulated that, of this number, 59 employees may be characterized as "eligible voters." Thus, the status of the remaining 18 must be determined. Twelve of the 18 were in the category of extra drivers. The status of an additional four of the drivers requires a determination as to whether or not they were in the employ of Respondent as of February 11, 1967. As to the remaining 2 of the 18, the issue is as to whether or not they are within the category of supervisors within the meaning of the Act. The issues concerning these three categories are considered hereinbelow. (b) The extra drivers: While the Union contends that extra drivers, as a class, cannot be considered as eligible voters, the Respondent contends that all of them should be considered eligible. On the other hand, the General Counsel only contends that certain of them should be excluded. It does not appear that the extra dnvers, as a class, can be considered to have an insufficient community of interest with the other drivers to permit the determination that they cannot be counted among the eligible voters, or, as a class, have a sufficient community of interest to be considered as eligible voters. The record discloses that Respondent divides the drivers into four categories- full-time school bus drivers, part-time school bus drivers, charter drivers and extra drivers. The full-time school bus drivers are guaranteed a certain number of hours per day of work during the school week. The part-time school bus drivers are also guaranteed a certain number of hours per day of workweek, but a lesser amount than the full-time school bus drivers. Some of the charter drivers are guaranteed a certain number of hours per day depending upon the type of run to which they are assigned. These include the charter dnvers who have regular commuter runs. Also included are others who have regular runs during certain seasons such as those seasons when various race tracks are operating. Most of the charter runs are not regularly scheduled and generally the drivers are compensated for the number of hours required for the run. All categories of drivers are assigned from time to time to charter runs; i.e., to those trips which are assigned as single runs. It appears that, in dispatching drivers for charter runs (other than those regularly scheduled), selection is made firstly from the part-time school bus drivers, secondly from the full-time schoolbus drivers, thirdly from the charter drivers and lastly from the category of extra drivers.' It further appears from the record that there are approximately 50 regular school bus runs and it is frequently necessary to find substitutes for the regular drivers who fail to report for their scheduled runs. It appears that substitutes are selected first from the category of extra drivers and then from the category of charter drivers. 10 The record discloses that all of the drivers with the exception of Allen' 1 receive the same rate of pay per hour, based upon the type of run and type of bus. The only other compensation the dnvers receive, according to the record consists of the fringe benefit of health insurance. This benefit is made available to employees who average a certain number of hours of work. This fringe benefit does not afford a criteria for determining whether extra drivers are or are not casual employees, since a considerable number of the 59 who were stipulated to be eligible voters do not have this fringe benefit. There is some evidence in the record to the effect that certain categories of the drivers are required to be available at all times and may refuse trips only for good reason, whereas extra drivers are available only at certain times and may refuse trips. The record is far from clear that the Company has a set policy with regard to the right to refuse trips. Consequently, this type of evidence does not present a factor to be considered in determining whether the extra drivers should be excluded as a class from those eligible to vote. A number of the extra dnvers have full-time employment elsewhere. For example, certain of them are employed as firemen and have regularly scheduled days off when they make themselves available to the Company. The fact that certain of the extra drivers have employment elsewhere does not appear to be a criterion which would establish a basis for finding that they should be excluded from the list of eligible voters. These drivers are available throughout the year and are not in the category of seasonal employees, such as teachers and students, who are generally excluded from eligible voters in a unit.' ' It is concluded that full-time employment elsewhere is not, of itself, a factor which would establish a lack of sufficient community of interest with the other categories of drivers for extra drivers to be excluded from the ranks of eligible voters. The record does not reveal that there is a greater rate of turnover of employees among the extra drivers than in the other categories of drivers.13 There is one characteristic which does distinguish the extra drivers from those in other categories, the average number of hours worked per week. However, the number varies consider- ably among the extra drivers. Some of them work sporadically and average only a few hours per week, while others work rather consistently and average a fairly substantial number of hours per week. Thus, it is concluded that the only factor which can appropriately be considered in determining the community of interest of the extra drivers is the number of hours worked and that such a determination must be on an individual basis. It would appear appropriate to include as eligible voters only those extra drivers who averaged 25 percent or more of a 40-hour week; i.e., 10 hours or more per week during the 6 weeks prior to February 11. Motor Transport Labor Relations, Inc., 139 NLRB 70, 72. The record reveals the pattern of employment of each of the extra drivers for the 6 weeks period starting with the week ending on January 7, 1967, through the week which includes the date of February 11, 8General Counsel and the Union contend that the Union acquired majority representation as of February 11, 1967. 9 This is based upon the uncontradicted and credited testimony of Gregory who works in the charter division office and has, as one of his responsibilities, the assignment of drivers to charter runs. 10 This is based upon the uncontradicted testimony of Frank Mannino, who is in charge of the school bus division office. 11 Allen's remuneration is set forth in the section hereinbelow in which his supervisory status is considered. 12Cf. Westinghouse Air Brake, 119 NLRB 1391, 1396. j3 Cf. Cab Operating Corporation, 153 NLRB 878, 883. M & M CHARTER LINES, INC. 609 1967.14 Set forth hereinbelow is the average of hours worked per week during said 6-week period by each of the 12 extra drivers: Extra Driver Average Weekly Hours Jerome Cantrell 17.83 David L. Gardner 13.3 Joe M. Goar 3.7 Joseph W. Herbster 14.95 Roger T. Hirdler 33.25 Gerald E. Jeffrey 5 Dale Palfreyman 15.95 George J. Pepper 3 Ernest Roberts 23.34 Jack S. Smith 3 Herbert Terrell 14.5 Richard J. Thomas 14.6 Based upon the above criterion of an average 10-hour workweek, or more,15 it is concluded that four of the extra drivers, Goar, Jeffrey, Pepper and Smith, were not qualified as eligible voters as of February 11, 1967.16 Thus, it is determined that the remaining eight extra drivers should be included in the list of eligible voters as "regular part-time drivers." (c) The employment status of four individuals: The General Counsel contends that two individuals, Marcella Ortega and Vincent Villasana, should not be counted as eligible voters (as of February 11, 1967) because they had no reasonable expectation of returning to work as of said date. He also contends that two other individuals, Maudie Falcone and Patricia Frickey, should not be counted among the eligible voters as of February 11 because they had not, as of that date, entered the employ of Respondent. The issues with respect to said individuals are considered hereinbelow. Marcella Ortega: Oretga was employed as a part-time school bus driver, apparently beginning in August 1966, and, according to the payroll ledger, the last week for which she was paid was the week ending January 21, 1967. It appears that on January 19 she failed to report for work. Her personnel card bears the following notations, "Incapable to work as of January 21, 1967" and "Quit - 3/31/67." Her husband, Joseph Ortega, who has been in the employ of Respondent since the summer of 1966, testified that she left Los Angeles for Houston, Texas, around the middle of January, that she was hospitalized for 8 days in Houston and then went to Albuquerque, New Mexico; and that she did not return to Los Angeles until April or May of 1967. He fur'ier testified that Frank Mannino and Gregory asked him on a number of occasions when she would return to work to which he replied that he did not know; that they knew she was in the hospital; and that Grace Gregory, who worked in the office on personnel matters, told him that she had put his wife on leave of absence and that he said "that would be all right." Sometime in February, which Joseph Ortega estimated to be between 2 weeks to a month after his wife's last day of work, Grace Gregory suggested that she cancel the separate insurance policy that was being carried on behalf of his wife, and put her on his policy. Joseph Ortega also testified that the first time he mentioned to someone in management that his wife was not coming back to work was in April or May 1967. However, Grace Gregory testified that the first time she talked to Joseph Ortega about his wife was about March 10, 1967, at which time she asked him whether his wife was coming back to work and that he replied, "No. I don't think she will ever come back." Grace Gregory further testified that it was at that time she suggested cancelling Marcella Ortega's insurance and putting her on his policy as a dependent. There is no conflict in the above testimony except as to certain dates. The testimony of Grace Gregory with regard thereto is credited, since her recollection with respect thereto appeared to be clearer than that of Joseph Ortega. It would appear from the above credited testimony that, as of February 11, 1967, management expected her to return to work, and there is no basis for inferring that, as of said date, Marcella Ortega did not expect to return to work. Consequently, it is concluded that, had an election been conducted on said date, Marcella Ortega would have been included in the bargaining unit. Vincent Villasana: On December 23, 1966, Vincent Villasana was involved in an accident and did not work for Respondent after that date. He was hospitalized during part of January and February 1967 and his leg was still in a cast as late as the middle of March 1967. General Counsel argues, "Based on the nature of the injuries received by Villasana, as injuries related to his work as a bus driver, it would be unreasonable that Respondent should consider Villasana as having a reasonable expectancy of recall." There is nothing in the record which would support the appropriateness of such an inference. It appears that Villasana's medical treatments were covered by Respondent's insurance plan. General Counsel contends that this fact did not indicate that he had a reasonable expectancy of recall. General Counsel argues, "In the event Villasana had not been covered, then his employ- ment with Respondent would no doubt been terminated." This argument amounts to no more than speculation. The record reveals that Villasana attended a dinner given by management for its employees on March 15, 1967, at which time his leg was still in a cast. It does not appear that Respondent took any action to terminate him prior to said date. Therefore, it would appear appropriate to infer that at least as late as March 15, 1967, Respondent and Villasana considered he was still an employee. Therefore, it is concluded that, if an election had been conducted on February 11, 1967, Villasana would have been considered as being a member of the bargaining unit and eligible to vote. Maudie Falcone and Patricia Frickey: Falcone's application for employment was dated February 2, 1967; her W-4 form was dated February 14, 1967, and the date of hire on her 14There are payroll records in evidence for five of the extra drivers which cover a more extensive period prior to February 11, 1967, but not for the other seven extra drivers. 15See also Scoa, Inc., 140 NLRB 1379, 1381, and Fresno Auto Auction, Inc., 167 NLRB No. 124, cf. Bowman Transportation, Inc., 166 NLRB No. 111. 16It is noted that in his brief General Counsel contends that the same four extra drivers should be excluded from the unit as casual drivers. However, he further contends that a fifth driver , Palfreyman, should also be excluded . This contention is based upon Palfreyman's payroll record, not only for the 6-week period considered, but also on his payroll record prior thereto and subsequent to the week of February 11, 1967. Since the record only affords a comparison of all the extra drivers for the aforesaid 6-week period and the average Palfreyman worked during said period was above 10 hours, the finding with respect to him is contrary to General Counsel 's contention. Apparently General Counsel does not contend that the other extra drivers should be excluded. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel card was also February 14, 1967. Her payroll ledger indicates that she received her first paycheck for the week ending February 18, 1967, and that her date of employment was February 14, 1967. Patricia Frickey's application for employment is dated February 7, 1967. Her medical examination is dated February 14, 1967, and her W-4 form, February 21, 1967. Her payroll ledger indicates that her employment commenced on February, 21, 1967, and it appears that the first payroll period during which she worked was the week ending February 25, 1967. The parties stipulated that Falcone received driver training from February 2 through February 14, and Frickey from February 7 through February 21, and that they were not on the payroll records during their training periods. During their training periods they were in the process of getting schoolbus driver's licenses and passing medical examinations and first aid tests. General Counsel argues in his brief "They did not become employees until after they satisfactorily passed their training period." He states in his brief that if any of the requirements of licenses and of passing the physical examina- tion and first aid test were not met they would not have been hired or put on the payroll. He cites Colecraft Mfg. Co., Inc., 162 NLRB No. 69, and Barry Control, Inc., 113 NLRB 26, in support of his contention that both Frickey and Falcone should be excluded from the bargaining unit. The Trial Examiner finds that said contention is meritorious and concludes that Falcone and Frickey should not be counted among the eligible voters as of February 11, 1967.17 (d) The supervisory status of Allen and Nicolello: General Counsel and the Charging Party contend that Allen, who has the title of head bus driver, is a supervisor within the meaning of the Act. On the other hand, Respondent contends that he is not a supervisor and in support of this contention argues that his duties were virtually identical with those of the dispatchers set forth in Eastern Greyhound Lines, 138 NLRB 8, in which the Board held that dispatchers were not supervisors. It does not appear that the holding in the case cited is applicable to the instant case. It is noted that the Board in the cited case found that, for the most part, the dispatchers exercised authority only with respect to the handling of equipment and their duties did not involve responsible direction of employees. The Board in said Decision pointed out that such matters as interviews, hiring and the training of drivers was not done by the dispatchers but by the safety supervisor. Considerable testimony was adduced with respect to the duties and responsibilities of Allen. As indicated hereinabove, Frank Mannino was in charge of the school bus division, and the only other person who worked in that office was Allen. Both Frank Mannino and Allen attempted to minimize Allen's responsibilities, to the extent that if this aspect of their testimony were credited, it would appear that Frank Mannino relied upon him for little more than running errands and transmitting Mannino's orders. HoweN er, there was some contradiction in their testimony with regard thereto. Mannino admitted that he has asked Allen's "opinion" in the making of schedules and with respect to other matters, but not his "advice." On the other hand, Allen testified that he never talked with Frank Mannino about the work of the school bus drivers. The record discloses that Allen trains applicants for employment and tests their driving ability. He reports his findings on a check sheet which enables Frank Mannino to make the decision whether to hire the applicant. Therefore, it appears that Allen's appraisal of an applicant is taken into consideration in determining whether to employ him. Frank Mannino admitted that he does ask Allen's opinion as to whether or not an applicant can be trained and one of the factors he takes into consideration is Allen's report on the applicant's ability to drive. Also, it appears from the record that Allen trains drivers already in the employ of Respondent to drive larger buses and fills out similar check sheets to enable management to determine whether the driver is available for assignment to larger buses. Thus, it is concluded that Allen exercised the authority to effectively recommend hiring of employees and their promotion to larger buses.' 8 While Allen does not have a salary, it appears that he receives a 15 cents per hour higher hourly rate ($2.75) than do the other school bus drivers ($2.60) and that he is paid for 50 hours a week at that rate, no matter what work he does. It appears that in addition he takes charter runs for which he receives the same rate as other charter drivers. This apparently is on weekends when the school bus division office is not operating. While the record discloses that Allen has a regular school bus run, it is noted that it is in the afternoon when, it appears reasonable to assume, the office demands have slackened. A study of the record reveals that the drivers regard Allen as a supervisor. It appears that he is also so regarded by management. After the discharge of Robert Fogle, which is considered in detail hereinbelow, the union business represen- tative, Elrich Billodeaux, talked to Dominic Mannino about Fogle's discharge. Billodeaux testified that Mannino told him that Fogle was discharged for striking Allen; that he, not Allen, had discharged Fogle; and that Allen did not have the authority to discharge Fogle. However, according to Billodeaux's testimony, Mannino also told him that he had to let Fogle go because if he did not, Allen's "authority would be looked down upon by the other drivers" and he (Allen) "would not be respected a1,y longer." When Mannino was questioned with regard to what he stated to Billodeaux, he substantially corroborated the testimony of Billodeaux, but denied that he used the word "authority." However, he admitted that he probably used the word "respect," but did not recall in what context he used it. Mannino's recollection of what he stated appeared to be rather vague and, therefore, the testimony of Billodeaux is credited. It is noted that there are approximately 50 drivers supervised by the school bus division office. If Allen were not a supervisor, there would be 50 employees under only one supervisor, Frank Mannino, which would appear to be a very high ratio of employees to supervisory personnel. In view of all the circumstances above outlined, it is concluded that Allen is a supervisor within the meaning of the Act and should be excluded from the bargaining unit. With regard to the supervisory status of Thomas Nicolello, it is noted that he works in the charter division office which has two full-time supervisors, Simpson and Gregory. It appears from the record that Nicolello receives the same rate of pay 17In addition to cases cited by General Counsel , see also Page Aircraft Maintenance, Inc., 123 NLRB 159, 172. 18This is further supported by the credited testimony of Eleanor Mayfield,. John Rust and Willard Bolden with regard to their being hired. M & M CHARTER LINES, INC. per hour as do other drivers and that he is primarily a driver. In between his runs, however, he works in the charter bus office assisting Simpson and Gregory, and on weekends, particularly Sunday,.he is frequently alone in the office. It appears that the only one of his duties which General Counsel contends places him in the category of supervisor is that of dispatching. It appears from Nicolello's testimony which is credited, as well as that of Gregory, that Nicolello does not select the drivers but merely notifies the drivers of their assignments which (normally) have been previously made by Simpson or Gregory. It further appears from his credited testimony that when he does have to make a selection he generally follows the practice of starting at the top of the list of available drivers. It is concluded that Nicolello exercises little or no independent judgment in his duties as a part-time dispatcher and, therefore, is not a supervisor within the meaning of the Act. Overnight Transportation Company, 128 NLRB 723.19 Consequently, it is determined that Nicolello should be included in the bargaining unit. In summary, based upon the above findings, it appears that there should be added to the 59 employees stipulated to be in the bargaining unit as of February 11, 1967, eight extra drivers,20 the two drivers who were found to be on leave (Ortega and Villasana) and Nicolello, making a total of 70 eligible voters in the bargaining unit as of said date.21 2. The authorization cards In support of General Counsel's contention that the Union represented a majority of the employees in the bargaining unit as of February 11, 1967, the General Counsel introduced into evidence 35 authorization cards22 and an honorable with- drawal card from the Union held by Donald McGuire. 2 3 The Respondent contends that "at least 30 [of the cards] are rendered invalid because of misrepresentation by the solici- tors." One such claimed misrepresentation is that the solicitor stated that the card would be kept confidential .24 The Respondent argues that if a card is to be kept confidential it cannot be used to establish a majority. It does not appear that there is any merit to this contention. It is a common practice to submit cards to impartial third persons for the proof of majority representation, thereby avoiding disclosure to the employer. Research did not reveal any precedent in support of Respondent's contention, but rather the decisions in cases involving such an issue appear to indicate the contention is without merit. General Steel Products, Inc., 157 NLRB 636, 645; Sterling Aluminum Company, 163 NLRB No. 40. 19It is noted that in the cited case the Board found that dispatchers who exercised little independent judgment were not supervi^..., as contrasted with a dispatcher who did exercise independent judgement and was found to be a supervisor. 20 Cantrell , Gardner , Herbster, Hirdler, Palfreyma. , Roberts, Terrell, and Thomas. 21It is noted that in his brief the General Counsel contends that there were 66 in the unit comprised of the 59 stipulated to be therein, and 7 of the 8 extra drivers (not including Palfreyman) found hereinabove to be regular part -time drivers 22The cards contain the following language: AUTHORIZATION FOR REPRESENTATION I, the undersigned employee of M & M Charter Lines Company, hereby authorize the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 572, as my Collective Bargaining Representative with respect to wages, hours, and other conditions of employment. 611 it is well established by Board decisions that when a card on its face clearly designates a union as bargaining agent, as found to be the case in the instant proceeding, the authorization is not invalid merely because the employee was told that the card would be used to secure an election. It is also well established, however, that the validity of the authorization may be effectively attacked if it was solicited with the representation that the only purpose for which it would be used was something other than that stated on the card,2 5 such as only for an election. The record reveals that, in the course of soliciting cards, representations with respect to an election were made in a number of instances. This testimony is considered hereinbelow. Following is an analysis of the testimony with respect to each of said cards and a determination of whether it constituted a valid authorization. The cards are considered in the alphabetical order of the names of the employees who signed them. Jack K. Ayres: John Pottorff testified that he obtained the signature on this card. There is nothing in the record to indicate that the signature was obtained upon any misrepresen- tation. Consequently, it is concluded that Ayres' card is a valid authorization. Wade H. Ayers: Eugene White testified to the obtaining of Ayers' signature. Although he testified that he told Ayers that signing the card "was not a vote for the Union," it is clear from White's credited testimony that Ayers intended to designate the Union as his bargaining representative by signing the card. In any event, the statement that it was not a vote for the Union, without more, is insufficient to invalidate the clear language of the card itself. Consequently, it is concluded that Ayers' card constitutes a valid authorization. Jack D. Bailey: Pottorff testified to the solicitation of the signature on this card and there is nothing in the record to indicate that he made any misrepresentations. Consequently, it is concluded that Bailey's card constitutes a valid authoriza- tion. Cleo E. Berry: Berry testified that he was offered a card four times before he signed one. According to Pottorff, he obtained Berry's signature after two unsuccessful attempts. They both testified that Pottorff stated that there would be an election when enough signatures were obtained. While Berry's reluctance to sign has been considered as a factor in evaluating the circumstances surrounding the signing of his card, it does not constitute a governing factor. It does not appear that the representation with regard to an election made by Pottorff constitutes a basis for finding that the card was to be used only for some purpose other than that stated on the card. 23Thuty-four of the authorization cards were signed by employees stipulated to be in the bargaining unit. The 35th card was signed by Roberts, an extra driver, who was found hereinabove to be a member of the unit . McGuire is among those stipulated to be in the unit. 24It is noted that the card, itself , bears the following legend, "All Cards Are Kept Confidential by the Teamsters Union and the United States Government." 25Cumberland Shoe Corporation, 144 NLRB 1268, Amalgamated Clothing Workers v. N.L.R.B. (Sagmore Shirt Company), 365 F.2d 898, The Shelby Manufacturing Company, 155 NLRB 464, 466. A detailed study of cases involving the validity of authorization cards may be found in 67 LRRM 165, which contains the text of an address given by the Board 's Associate General Counsel H. Stephan Gordon, on February 15, 1968. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consequently, it is concluded that this card is a valid authorization. Edward Blando: Blando was one of those actively engaged in soliciting authorization cards on behalf of the Union. There is nothing in the record to support a finding that he, himself, signed the card upon a misrepresentation that it would be used only for some purpose other than stated on the card. Consequently, it is concluded this card constitutes a valid authorization. Willard Bolden: Both Bolden and Pottorff, who solicited the card from him, testified that Pottorff made a statement to the effect that if a sufficient number of drivers signed cards there would be an election. It is well established that such a representation, without more, in face of the clear language of the card, is not sufficient to establish that the card was signed upon a representation that it would be used only for an election. Consequently, it is concluded that this card is a valid authorization. Bart Burgin • Burgin testified that Pottorff solicited the card from him. It appears from Burgin's subjective testimony that he would have been satisfied to have union representation provided a majority of the drivers were in accord.26 However, his testimony is considerably confused and the Trial Examiner does not believe it appropriate to rely upon this subjective testimony. In view of the confused nature of Burgin's testimony, the Trial Examiner attempted to elicit from him what he was led to believe was the purpose of soliciting his signature on the authorization card. His testimony in response thereto clearly indicates that he was given to understand that the only use to which the card was to be put was to obtain an election. Consequently, it is concluded that this card does not constitute a valid authorization and cannot be counted toward establishing the Union's majority status. David Burtle: It appears from Burtle's credited testimony that when White solicited an authorization card from him, White stated, in effect, that there would be an election if enough cards were signed. As indicated above, such representa- tion is not sufficient to establish that the only purpose for which the card was sought was to secure an election. Consequently, it is concluded that this card is a valid authorization. Barbara Wilhoit Campbell: 2 7 Her card was solicited by Pottorff. Both she and Pottorff testified that he stated to her that if enough drivers signed cards there would be an election. As has been indicated several times hereinabove, such a statement is not sufficient to support a finding that the stated purpose for obtaining the card was only to secure an election. Therefore, it is concluded that this card constitutes a valid authorization. Albert Coleman: There is nothing in the record to indicate that any misrepresentation was made to Cole- in when obtaining his card. Consequently, it is concluded that it constitutes a valid authorization. Leslie S. Corlew: This card was solicited by White. It appears from the testimony of both Corlew and White that White stated to him that the card was not a vote for the Union and that before there could be an election the Union would have to obtain a sufficient number of cards. Corlew testified without contradiction that White told him the card was "mainly for reference for my address and phone number and name.i2 8 Although White at first testified that he could not truthfully say he read the card completely, it appears from his subsequent testimony that he did read it over before he signed it. It does not appear in the circumstances that the representation of the main purpose of the card is sufficient to find that the only purpose for obtaining his card was to give the Union Corlew's name and address. For the reasons stated hereinabove, neither the representation that the card was not a vote for the Union nor the representation that there would be an election is a sufficient basis to find that Corlew did not sign the card for the purpose clearly stated thereon. Consequently, it is concluded that this card is a valid authorization. Loyal Diehl: There appears to be a contradiction in the record as to who gave Diehl his card. Diehl testified that Burtle gave him the card, that he did not tell him it was only for an election, and that he read the card which did not say anything about an election. Pottorff testified he gave Diehl a card and that Diehl signed it in his presence and returned it. Pottorff further testified that he "possibly" discussed with Diehl that they needed cards from 30 percent of the drivers to get a petition to have an election. It does not appear necessary to resolve the above noted conflict in the testimony, since, whether one or the other version is credited, it appears that there is no basis for finding that any representation was made to Diehl that the card was to be used only for some purpose other than that stated on the card itself Consequently, it is concluded that this card is a valid authorization. Woodrow Eckman: Eckman testified that Pottorff solicited the card from him; that he read it; and that he signed it on the date indicated on the card. He further testified that, while he heard "people talking" that the purpose of the card was for an election, he did not hear this before he signed the card. It does not appear that any misrepresentation was made to him by the solicitor, or that there is any basis for finding that he did not by signing the card intend to designate the Union as his bargaining representative. Consequently, it is concluded that this card is a valid authorization. Robert Fogle: Fogle testified that Pottorff gave him his card and that he read it and signed it. Although White testified that he gave Fogle a card, it is not clear from White's testimony that the card in evidence is the one which White testified that he gave Fogle. White testified that he told "almost everyone" he gave a card to that the card was "not a vote for the Union" and that before there could be an election the Union would have to obtain "a majority in number of the cards." As has been held hereinabove, such representations made by White are not sufficient to find the card an invalid authorization. Therefore, whether White did or did not make such representations to Fogle, it appears appropriate to conclude that this card constitutes a valid authorization. Doris Fowler: The record discloses that Pottorff solicited the authorization card from her. Pottorff testified that she, at first, refused to sign and indicated that she was afraid, that he talked to her subsequently in the presence of Willard Bolden, that he told her that if she wanted the Union to come in and represent her to sign the card, and that she signed the card. He 26It appears that this condition has not been met , in view of the 28It is noted that Corlew testified, apparently as an explanation of finding hereinbelow that a majority of the drivers did not signify that this purpose, that he had a "withdrawal card out of the Union," they wished to have the Union represent them. indicating that they were not certain that in such circumstances his 7At the time she signed the card her name was Barbara Wilhoit . authorization card was needed. M & M CHARTER LINES, INC 613 further testified that he did not tell her anything about an election at that time. Bolden testified that he was present on that occasion and there was no mention of an election. Fowler's testimony contradicts that of Pottorff and Bolden. According to her testimony, she and Pottorff had quite an extensive conversation about the card and he made quite a number of representations to her, she indicated her reluctance to sign the card; Pottorff told her the card would not involve her in any way; she told him that she did not want to affix her name to something she did not understand; and he told her the card "did not mean anything," that "it was only to get a consensus of opinion as to how many employees would like it to come to a vote" and that she was "under no obligation" to vote for the Union.29 The General Counsel attempted to impeach her testimony. He elicited from her that she told him that she did not want to appear at the trial and that subsequently she talked to Dominic Mannino who asked her to testify. However, she further testified that she had quit her job with the Respondent and was, at the time, employed by another company. Fowler appeared to be forthright in her testimony and to have a good recollection of what occurred at the time she signed the card. It is the opinion of the Trial Examiner that her testimony should be credited. Therefore, it is found that Pottorff represented to her that the card was to be used only for some purpose other than that stated on the face of the card, and it is concluded that this card does not constitute a valid authorization. Willie L. Fox, Moses Gonzales, Dirk Groeneweg, and Richard A. Hart: It does not appear that any misrepresentation was made to any of them with respect to the purpose of the card and therefore it is concluded that their cards constitute valid authorizations. Mary Hutchins: Hutchins testified that she thought White solicited the card from her. It was apparent from her testimony that her recollection was vague as to the circum- stances surrounding the signing of her card. Although she indicated in her testimony that her "overall impression" was that the card did not constitute a "comittment," she also testified that she thought the card was "self-explanatory." It does not appear that there is any basis for inferring that a misrepresentation was made to her that the card was to be used only for some purpose other than stated on the card, and therefore it is concluded that it constitutes a valid authoriza- tion. Betty Lou Jackson and Robert E. Jackson: Blando testified that he obtained the cards from both Jacksons, who are husband and wife. He testified that he told them that if 51 percent of the cards were signed, the employees would have a union and that there was no discussion about an election. She testified that Blando solicited her signature on the authoriza- tion card. She was examined as to whether Blandc said anything to her when he gave her the card and her testimony is as follows: A. He just said it was a card giving authorization for the Union to come in and let us know whether we wanted it or not, you know, to tell us what they could do for us and everything, and then it was up to us to decide whether we wanted it or not. Q. Did he say anything about an election? A. No. 29In essence , this same testimony was repeated several times in the course of her examination. Although the purpose for the card represented in Blando's statement did not contain an exclusionary word such as "only," "merely" or "just," the concluding phrase which indicated that the employees signing cards reserved the right to make up their minds whether they wanted the Union to represent them or not, negates the language of authorization on the card. Robert Jackson testified to what Blando states as follows: A. The only thing he said they wanted the card-they had to have 51 per cent of the drivers to find out if they wanted the Union to come in to represent us or not. I mean, you know, to have an election, it was just if we wanted one or not, (underlining added) Q. Wanted what? A. An election for a Union. Q. Now, what did Mr. Blando say about an election? A. I'm kind of balled up. I'm not-wait a minute. I'll try to explain it in my way, and maybe I'll get it out that way. When Eddie gave me the card, you know he said we had to have 51 percent of the drivers to see if they wanted a Union to come in, to meet with the Union to see if they wanted to have them represent us or not; you know, for a Union, or to have an election or whatever we wanted. In other words, at the time, there was nothing said about, you know, for a union, or to have an election or whatever we wanted. In other words, at the time, there was nothing said about, you know, signing the card for an election. Although the above testimony is somewhat ambiguous, a careful study of his testimony leads the Examiner to conclude that he testified that he was told that the card was to be used "to find out ... just if we wanted ... an election for the Union." (Emphasis supplied.) This interpretation of his testimony is supported by the above quoted testimony of his wife as to what she understood Blando stated. In view of the similarity in the testimony of the Jacksons and it appearing that they were attempting to testify to their best recollection, their testimony is credited. Consequently, it is concluded that neither of the two cards constitutes a valid authorization. Betty Jo Jimenez: Pottorff solicited her card. Pottorff's testimony discloses that he had only a vague recollection with respect to the circumstances in which he obtained the card from her. She testified that Pottorff told her, among other things, during several different conversations, the card would not mean that she was joining the Union; that she would not have to join the Union; "just that I would be on a list and get information about it, because I didn't know anything about it [the Union]." She further testified that she asked him to explain what the language on the card meant, and that "he said it just meant that I would be represented; that somebody would talk to me and explain about the Union to me, one of the officials." She also testified that she had a conversation with White prior to talking to Pottorff and that he said, inter alia, that the card "would not mean that I was going to join the Union; only that I would listen to their side of it." When she was questioned by the Trial Examiner as to whether she had read the card before she signed it, she replied that she did: "And I asked him if this meant that I would join the Union. And he said no, it only meant that I would get information from them." White testified that he told her that by signing the card "it wasn't authorizing the Union to represent her in behalf of a contract when such time as a Union did get in." It is apparent from White's considerable testimony as to what he said to 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people about the purpose of the card and what he was told with respect to the purpose of the cards that he was extremely confused as to the purpose of the card. Thus, not very much weight can be given to his testimony. In view of this, of Pottorff's hazy recollection and of the fact that Jimenez appeared to have a fairly good recollection of what she understood was said to her, her testimony is credited. Her credited testimony reveals that she was told that the card would be used only for something other than the purpose stated on the face of the card. Consequently, this card cannot be considered a valid authorization. Frederick J. Lofton, Eleanor Mayfield: It does not appear that any misrepresentation was made to either of them with respect to the purpose of the card and therefore it is concluded that these cards constitute valid authorizations. Ralph J. Murray: He and Pottorff both testified to the circumstances surrounding the solicitation of his card. An examination of their testimony indicates that while there was a discussion about the election, this did not occur until after he had signed the card. It does not appear that there was any misrepresentation made to him which induced him to sign it and therefore it is concluded that this card constitutes a valid authorization. Joseph Ortega, Garland Pottorff, George C. Powell, Ernest Roberts, John Rust, Otis Sinclair: It does not appear that any rrusrepresentations (that the cards would be used only for some purpose other than stated on the card) were made to any of them to induce them to sign their cards. It is noted that both Pottorff and Rust were active in soliciting cards on behalf of the Union. Consequently, it is concluded that all of their cards are valid authorizations. James W. Stafford: He testified that he did not recall who gave him his card and that he did not recall reading it before he signed it. He further testified that he was told that the card was "to see if we're going to have a vote ... for or against the Union," and that he signed the card and stated to the solicitor that it was not going to hurt him "one way or the other." Although he testified that he did not recall reading the card, it is reasonable to assume he read it in order to fill in the blank spaces. His testimony with respect to the purpose of the card does not indicate that it was represented to him that a "vote" was the only purpose. The testimony as to his statement to the solicitor that the card would not hurt him one way or the other is too ambiguous to shed any light on his intent in signing the card. It is concluded that the record with respect to the circumstances in which he signed the card is not sufficient to rebut the presumption that he signed it for the purpose stated thereon and is a valid authorization. Doyle W. Townson: Pottorff solicited this card and testified that he told Townson that if enough drivers signed they could have an election. Townson testified that when Pottorff gave him the card he told him that the card would give the employees "the right to vote for an election, or have an election for the Union"; that he told Pottorff he was not particularly interested in the Union; that Pottorff told him everybody else was signing the cards and it would give them the right to have an election, and that he did not read the card before signing it. However, in the subsequent portion of his testimony, he testified that he filled in all of the blank spaces on the authorization card. While it is of course quite possible for him to have done so without reading the few lines which set forth the authorization, it is deemed somewhat unlikely. It does not appear from the above testimony that Pottorff represented that the purpose of the card was only for something other than the language thereon. It does not appear that the record would support a finding that Townson would not have signed the card had it not been represented to him that everyone else was signing a card.30 Further, it appears that there is not a sufficient basis in the record to make a finding that Townson signed the card upon a representation that it was only for something other than to authorize the Union to represent him. Consequently, it is concluded that this card is a valid authorization. Eugene H. White: Although his testimony indicates that he was extremely confused as to what the purpose was for employees to sign the caid and what he was told by the Union with regard to the purpose, he was one of the most, if not the most, active solicitors of the authorization cards. In all the circumstances it appears reasonable to conclude that he, himself, wished to have union representation and that by signing this card he intended to designate the Union as his bargaining representative. Consequently, it is concluded that this card is a valid authorization. Donald McGuire's withdrawal card: McGuire has held an honorable withdrawal card from the Union for several years (since October 31, 1963). The General Counsel contends that this is equivalent to his having signed an authorization card. The withdrawal card states on its face that he "has withdrawn in good standing from membership" in the Union. On the reverse side it is stated that the card "entitles him to readmission" to the Union subject to certain conditions, apparently quoting from article XVIII of the constitution of the International. It is noted that in section 5(d) of said article XVIII, reference is made to the holder of a withdrawal card as an "ex-member" and provides for methods by which he may return to membership. This section is also quoted on the back of the card. The General Counsel, in support of his contention, attempts to equate a holder of an honorable withdrawal card with a member of the Union and cites a Decision31 of the Board which holds that by virtue of his paid-up membership in the union an employee, even though he has not signed an authorization card, nevertheless has designated the union to represent him. It is concluded that a holder of an honorable withdrawal card cannot be equated with a member in good standing, and therefore the cited case is considered inappli- cable. General Counsel further contends that, since McGuire testified that he considered himself to be a "withdrawal member in good standing" and that at a union meeting held a few days before the election he identified himself to the union president by "presenting his expired union membership card," it would be appropriate to infer that "McGuire would have signed an authorization card but for the fact that he considered himself to be a member in good standing and didn't deem it necessary to do so." This appears to be no more than speculation, and the evidence is insufficient to support a finding that McGuire engaged in some overt act indicating that he designated the Union to act as his bargaining representative in his employment with Respondent. Consequently, it is concluded that McGuire cannot be counted among those who designated the Union as their bargaining representative. 30 See I.T. T. Semi-Conductors, Inc., 165 NLRB No. 98. 31Ben Ginsburg, Inc., d/b/a Brunswick Meat Packers, 164 NLRB No. 111. M & M CHARTER LINES, INC. 615 3. Union's claim of majority representation Based upon the above findings with respect to the authorization cards and the withdrawal card of McGuire, it is concluded that as of February 11, 1967, the Union had been designated as bargaining representative by 30 "eligible voters," as disclosed by the 30 valid authorization cards? 2 Since it was found hereinabove that there were 70 "eligible voters" in the appropriate bargaining unit as of February 11, 1967, it is concluded that the Union had not acquired majority representation on that date as contended by the General Counsel and the Charging Party. 3 3 4. Independent violations of Section 8(a)(1) (a) Unlawful interrogation, threats of reprisal, and re- straint: There are numerous allegations in the complaint of unlawful interrogation, threats of reprisal, and restraint, and considerable evidence was introduced into the extensive record relating to said allegations. In view of the foregoing, it appears that the most efficacious method of disposing of the many issues raised by said allegations is by considering the contentions the General Counsel makes in his brief to determine which of the allegations he believes have been sustained, and to resolve his said contentions of various violations of Section 8(a)(1) of the Act. Hereinbelow are set forth, seriatim, the contentions of the General Counsel with regard to said violations and a resolution of each of said contentions. (1) F. Mannino's interrogating Robert Jackson in early February about his union activity and threatening that the drivers would have it rough if the Union came in. Robert Jackson testified that "around the first part of February" 1967 he had a conversation with Frank Mannino at the door of his office in the course of which Mannino stated, "If the Union came in, they'd have it rough." He further testified that by the word "they" Mannino was referring to the drivers. He also testified that Mannino asked him how he felt about the Union. Mannino was questioned about Jackson's testimony and testified that he was positive that no such conversation took place because he "didn't discuss the union situation with anyone." Jackson appeared to be a convincing and forthright witness. Consequently, it is concluded that Jackson's testimony should be credited. It is further concluded that the record establishes that the Respondent was strongly opposed to the Union, engaged in a vigorous campaign against it and, as disclosed hereinbelow, also engaged in other conduct violative of the Act. Therefore, in such context, it is also concluded that in the course of the aforesaid conversation, the Respondent did threaten economic reprisal for adherence to the Union and did unlawfully interrogate an employee. (2) Allen's threats to Rust on or about February 15, that if he was a union rabble-rouser he would be the next to go. Rust testified that in the middle of February he, Allen and a fellow driver, Roger Hirdler, had a conversation at Palos Verdes High School. His testimony with respect to the conversation is as follows. Roger Hirdler asked John Allen what had happened to Gene White. Gene White was absent during that day. And John Allen said that he had fired him. I don't remember exactly how the conversation ran exactly after that, but pretty soon the conversation came around to me, and John Allen asked me if I was a Union rabble-rouser, and I said yes. And he said that I would be next. Then Dave Burtle came into the bus, and I said something to the effect that, "I'm glad you're here. It's about to come to blows." I said it very jokingly, quite in jest; and John Allen said that if I hit him it would be the worst thing I could ever do, or something to that effect.34 Allen was questioned with respect to Rust's testimony and confirmed that there was a conversation at the aforesaid high school. Allen's testimony is as follows: Mr. Rust came in my bus-Gene White was off sick, and John Rust came up to the bus and said, "What did you do with my buddy, Gene White, fire him?" I thought he was kidding, because he knew what was wrong with him, and I said, "Yeah." Allen further testified that he and Rust got into an argument about Allen's knowledge of labor law, and he denied that there was any discussion as to whether or not Rust was a "union rabble-rouser." Rust was the more convincing witness and, therefore, his testimony is credited. Based upon the said credited testimony, it is found that Respondent engaged in a threat of economic reprisal violative of Section 8(a)(1) of the Act. (3) Gregory's interrogating Diehl on or about February 9, ... about his union activity. Loyal Diehl testified that in the first part of February Gregory was engaged in a conversation with several drivers who were at the window and that when he approached the group, Gregory asked him if he had been contacted about the Union. When he said that he had, Gregory asked him how he felt, and he replied that Gregory knew that he had always been a union man. Gregory testified that he talked about the Union only to a certain few drivers and Diehl was not among those named to whom he talked. Gregory did not appear to be a forthright witness as compared with Diehl. Consequently, Diehl's testimony is credited, and it is found that in the context of other unlawful conduct of Respondent's agents, Gregory's questioning of Diehl as to his sentiments about the Union constituted unlawful interrogation within the meaning of Section 8(a)(1) of the Act. (4) Allen's telling White in early February and on or about March 6, that if he had any problems to take it up with his union representatives. White testified that in the early part of February he asked Allen if there were any plans for getting another drinking fountain, since the one that had been there had been removed, and that, in the first part of March, he asked Allen about extra keys for his bus, since they had been stolen. White further 32Of the 35 cards in evidence , 5 were found to be invalid. 33Thirty valid authorizations out of a unit of 70 members "eligible" to vote It is noted that, even if all the extra drivers were considered "ineligible voters," as contended by the Charging Party, and there were only 59 in the unit (which the parties stipulated were in the unit without question) the Union had less than a majority , 29 valid authorization cards. One of the 30 authorization cards found to be valid was that of Roberts, an "extra driver." The General Counsel contends, as indicated above, that there were 66 eligible voters in the unit, as of February 11, 1967, including Roberts. Thus, even if Roberts ' card were counted the Union had only 30 valid authorization cards which would be less than a majority of the number General Counsel contends were eligible to vote. 34It appears from the record that White was not fired but was absent that day because of illness. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that in response to both questions, Allen told him to take it up with his union representative and see if he could supply the drinking fountain and the extra set of keys. Allen denied White's testimony as to the two incidents. Although, as indicated above, portions of White's testimony with respect to the authorization cards indicate that he was confused as to the purposes of the cards, nevertheless he appeared to be a forthright witness who was testifying to his best recollection. Consequently, his testimony is credited. Allen's sarcastic replies to White's questions clearly implied a threat that the Respondent would withhold its normal cooperation from employees, if they adhered to the Union, in violation of Section 8(a)(1) of the Act. (5) Allen's threatening employees on or about February 25, that there would be no husband-wife teams if the Union got in. White testified that about February 25, 1967, he overheard Allen talking to Alva and Bill Jenkins. Following is White's testimony as to what occurred: He [Allen] laughed first, and then he said, "Yeah. Well, I heard Don mention the other day that if this Union comes in, it will sure kill out these husband and wife teams that are working here now; that husband and wife will not be permitted to work here." Allen testified that such a conversation never occurred. Alva Jenkins was questioned with respect to the testimony of White as to the aforesaid conversation and she testified that such a conversation "definitely" did not take place. In view of the denial by Allen and the corroboration of his denial by Alva Jenkins, it is concluded that White must have misunderstood what he overheard and that Allen's denial should be credited. Consequently, it is further concluded that the General Counsel has failed to prove the allegation of the complaint relating to this contention. (6) Allen's threatening White, on or about March 6, that if the Union didn't get in, he and others wouldn't have any jobs. White testified that in his conversation with Allen about the extra keys early in March, referred to hereinabove, the following occurred. He [Allen] said, just-well, first, he said, "Take it up with your Union representative," and then later he said, "You don't have to worry much longer. You won't have to worry about keys much longer anyway. You better hope the Union gets in here, because if they don't, and they won't, a bunch of you guys won't be worrying about keys anyway; you won't be worrying about jobs." As indicated hereinabove, Allen denied White's testimony relating to the question about the keys and White's testimony was credited as to this portion of his testimony (with regard to the conversation). Consequently, it is concluded that Respon- dent, by Allen's statement to White, unlawfully threatened employees with economic reprisal for adherence to the Union in violation of Section 8(a)(1) of the Act. Following are a considerable number of General Counsel's contentions with respect to statements attributed to Respon- dent of the consequences of unionization of the Respondent. There are a great number of Decisions in which the Board has considered whether statements by employers to employees of the effect unionization may have upon the terms and conditions of their employment were or were not violative of Section 8(a)(1) of the Act. The Board has stated, in Lenkurt Electric Company, Inc., 169 NLRB No. 127, "It is well settled that an employer's prediction' of untoward economic events may constitute an illegal threat if he has it within his power to make the prediction come true." While this formula appears to be "well settled," it appears that there is considerable difficulty applying it to particular cases. It would be a Herculean task to set forth an analysis of the great number of cases in which the Board has considered this problem. Based upon a study of many of the cases, it is the opinion of the Trial Examiner that a determination, in the circumstances of this case, as to whether a statement of the economic consequences of unionization falls within the protection of Section 8(c) of the Act or is violative of Section 8(a)(1) of the Act, depends, on the one hand, on whether the statement is not made in immediate context with coercive conduct and contains a reasonable explication of the economic basis for the statement, or, on the other hand, upon whether it is uttered in the immediate context of other conduct which is clearly coercive or it is merely a bald assertion of "untoward" economic consequences without explication. In Chicopee Manufacturing Corporation, 107 NLRB 106, 107, a representation case, the Board stated as follows- The hearing officer found (1) that Plant Engineer Halloway told employee Wagner, on May 1, 1953, that the Chicopee Manufacturing Company could not pay the same wage scales as the Petitioner had obtained at Personal Products Company, also a subsidiary of Johnson & Johnson Corporation, and that "if the union won, they would be forced to move the plant," and (2) that Shift Foreman Oliveira, in conversations with employee Baker, stated that the Employer "could move the plant if they so desired." Assuming that these statements were in fact made, we find that they do not warrant setting aside the election. We view these statements, under the circumstances, as nothing more than predictions of the possible impact of wage demands upon the Employer's business. A prophecy that unioniza- tion might ultimately lead to loss of employment is not coercive where there is no threat that the Employer will use its economic power to make its prophecy come true. In Bilton Insulation, Inc., 129 NLRB 1296, 1297, the Board stated as follows We do not agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with going out of business in the event it had to deal with the Union. The Trial Examiner's finding is based on a statement which President Bilton made in the course of a meeting with his employees on September 23, 1959. According to Bilton he advised the employees that it was their privilege to become members of the Union, but that in such event, and if he had to grant very many additional benefits as the Union may require him to do, he would overnight become noncompetitive and would not be able to get jobs for his business. If the Company did not get jobs the employees would not get work, and the Respon- dent would be forced in such a situation to go out of business. Employee Edward Alfred testified that Bilton explained that no other insulation company in the area was unionized, that the Respondent, if he had to pay the higher union scale of wages, would not get any jobs, and that in such a situation the Respondent could not keep it up and would have to go out of business. M & M CHARTER LINES, INC 617 Contrary to the Trial Examiner we do not find these remarks of Bilton to be an open or implied threat of closing his plant in retaliation against its employees' joining the Union. We believe that under the circumstances Bilton merely conveyed to his employees his interpretation of the possible economic consequences to be expected if the Respondent's business was unionized. His remarks appear to us to be an expression of an analysis or prediction of things to come rather than a threat of reprisal to force his employees into abandoning the Union. Accordingly, we shall dismiss the complaint with respect to the alleged threat. On the other hand, in Sanitary Bag & Burlap Company, Inc, 162 NLRB No. 151, the Board held that a supervisor's statements to two employees "that the Respondent would have to reduce some of its operations and lay off some of the employees if the Union came in" and that the two employees "might not eat" were found to be violative of Section 8(a)(1) of the Act. Also in Crystal Tire Co., 165 NLRB No. 82, the Board stated as follows: The Trial Examiner found that Respondent had not violated Section 8(a)(1) by engaging in the following conduct: President Bauman's statement to employees Lemuel and Elmer Massa that, if unionized, Respondent would have to stop work on its new recap shop, that Respondent could not keep all of its employees if it had to pay union scale, that Respondent would have to shut down, that Lemuel and Elmer Massa should join their brother at the Chrysler plant if they wanted a union, that they would be hurt by the Teamsters' contract, that Respondent could not pay overtime at Teamsters rates, and that Respondent would have to "cut everybody to 40 hours" if it had to pay Teamsters' rates. The Trial Examiner concluded that these remarks amounted to "a permissible expression of ... views on" the "possible economic consequences" of having to deal with the Teamsters. We disagree with the Trial Examiner's conclusion. In the context of Respondent's other unfair labor practices, these statements by President Bauman, fairly understood, were not mere predictions of the possible economic consequences of unionization, but were threats of economic loss to employees if the Union was selected as bargaining representative. Accordingly, we find that by these statements Respondent further violated Section 8(a)(1) of the Act. The above cited cases are merely representative of the many cases dealing with the subject and are not the sole authorities which the Examiner studied in arriving at his above-stated conclusions as to how the above-quoted rule in Lenkhurt Electric Company, Inc., supra, is generally applied. The resolution of the numerous contentions hereinbelow of the General Counsel with respect to statements attributed to Respondent of the economic consequences of unionization is predicated upon the foregoing analysis of the Board's Decisions. Thus, if a statement of economic consequences is accompanied by a reasonable explanation of its basis and is not uttered in immediate context with coercive statements or conduct, it will be found to be protected under Section 8(c) of the Act. On the other hand, if such a statement is a bald assertion of "untoward" economic consequences without explication or in immediate context with coercive statements or conduct, it will be found to be violative of Section 8(a)(1) of the Act. (7) D. Mannino's threatening Fogle, on or about February 10, that if the Union came in, a number of employees would be let go. Fogle testified that on February 10, 1967, he went into Dominic Mannino's office and stated to him that he was "100 percent for him and the company" because he could not afford to be "cut down" in his hours, and that Mannino stated "there would be certain ones that would be cut down." He further testified that Mannino showed him a seniority list and pointed out to him that he would be "somewhere around position 20 on the seniority list." D. Mannino testified that in two conversations he had with Fogle, Fogle informed him that he was "100 percent" for the Company and that he did not want to work under the Union. While Mannino did not categorically deny Fogle's testimony about cutting down hours, by his testimony, however, it appears he indicated that their conversation did not extend to the matters of seniority and cutting down of hours. Fogle's testimony is credible and it appears likely that Mannino would make such a statement to an employee who had indicated his opposition to the Union, in order to strengthen that opposition. Consequently, Fogle's testimony is credited, and it is concluded that Mannino's statement constitutes a threat of economic reprisal in violation of Section 8(a)(1) of the Act. (8) Allen's telling Fogle in mid-February that if the Union didn't win the election, White, Blando, and Gonzales would be fired or their time cut. Fogle testified as follows to a conversation he had with Allen: There was conversation-one was that if the Union did not pass the election, that it was not voted in, that the organizers-and he named Gene White, Ed Blando, Moses Gonzales-those are the ones so far I can remember-they would either be let go or their times would be cut. And he also said that Gene White, which held a full-time school run, would be the one to lose more than anybody, because there would be higher men in seniority if the Union went through that would take his run away from him. Subsequently, in his testimony, Fogle added the name of Pottorff to the names of the employees mentioned by Allen. Allen categorically denied Fogle's testimony. Although neither Allen nor Fogle was a convincing witness, it is the Trial Examiner's opinion that Fogle's testimony on this point was not fabricated and it is consistent with the evident animosity of Allen toward the Union and union adherents. Consequently, Fogle's testimony is credited and it is concluded that the Respondent, by the aforesaid statements, did threaten economic reprisals against employees for their adherence to the Union in violation of Section 8(a)(1) of the Act. (9) Don Mannino's telling Mayfield in mid-February that if the union came in, the last eight drivers hired would be fired and she was one of them. Mayfield testified that sometime "between the middle and the later part" of February 1967, she went to Don Mannino's office to talk to him, and in the course of her conversation with him, he stated that if the Union came in "the last eight drivers that were hired would have to be let off" and that she was one of them. To continue with her testimony, he explained that he was only operating the "little handicap buses" in order "to stay in good graces with the people in Palos Verdes," that he "wasn't making money from them" and that they "would have to be laid off because the salaries would go up." She also testified he further explained that if the 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union came in, he would have to raise wages and would not be able to compete with other companies. Don Mannino was questioned about her testimony and testified that he did have a conversation with Mayfield at the time and corroborated her testimony as to portions of their conversation other than that above outlined, but denied that there was any discussion with her as to what the results would be if the Union were to represent the employees. Inasmuch as the statements to which she testified are consistent with statements which Mannino admitted making on at least another occasion, particularly at a meeting of employees on March 15, 1967, referred to hereinbelow, her testimony is credited. It appears, however, that his said statements were within the category of economic predictions protected under Section 8(c) of the Act and, therefore, it is concluded they were not violative of Section 8(a)(1) of the Act. (10) Allen's interrogating Pottorff in early February about his union activity. Although it is not clear whether by this contention General Counsel is referring to an incident to which Pottorff testified occurred early in February near the lunch wagon in the Company's lot, it is assumed to be so, since the record does not contain testimony of any other incident to which this contention might be referring. According to Pottorff's testi- mony, there were six or seven people who witnessed the incident, including Don Mannino. While Pottorff was standing at the wagon, John Allen passed by, slapped him on the shoulder and said "How is the union organizer?" Pottorff also testified that at about the same time of the month he admitted to Mannino that he was soliciting the cards for the Union after he was accused of doing so by Mannino.35 Pottorff's above testimony is credited. Inasmuch as he was known to be engaged in soliciting cards for the Union, it appears that this inquiry by Allen was nothing more than a sarcastic greeting and cannot be considered to constitute unlawful interrogation within the meaning of Section 8(a)(1) of the Act. (11) Gregory's interrogating Pottorff in mid-February about his union activity; and threatening that if the Union came in, the charter list would be cut and Pottorff would be at the end of the list and would not get work. Pottorff testified that he had a conversation with Gregory in the middle of February (after his aforesaid admission to Mannino of his union activity). His testimony with respect to this conversation is as follows: He asked me, he says how come I wanted the union in there and why was I for the union, and I stated a couple reasons I felt were good reasons to him. He says, "Well, you know if the union comes in, it will make my job a lot easier." I said, "What do you mean?" And he says, "Well, we will just chop off the charter list to about six drivers, and we will do away with the commuter runs; they are not making us money anyway, and I will have only a few drivers in to send out on trips, and I will have a real easy job again." Pottorff testified to another conversation with Gregory a few days later when Gregory called him about taking a trip. His testimony is as follows: He told me about the trip and then he said, "Now, off the record, John, between you and me, you really don't want the union to come in, do you?" I said, "Yes, I do." He said, "Well, you know, if it comes in, they will move you way down on the list, you will be about 13th on the list and it will really hurt you." I said, "Well, it possibly will." Pottorff's above quoted testimony is credited. It is concluded by Gregory's statements to Pottorff, Respondent engaged in threats of economic reprisal in violation of Section 8(a)(1) of the Act. However, in view of the fact that Pottorff had made known to management his union views, it is concluded that Greogry's interrogation was not coercive within the meaning of Section 8(a)(1) of the Act, but must have reasonably been understood by Pottorff as an attempt by Gregory to under- stand why he was pro-union. (12) John Allen's and Don Mannmo's telling Mayfield that she wasn't supposed to talk about the Union on company time or on company property. (13) Don Mannino's telling Pottorff, on or about February 8, that Pottorff was not to engage in union activity on company property or company time. (14) Frank Mannino's telling employees, during February and March, that they should not talk about the Union on company property or company time.36 John Allen denied that he said anything to Mayfield about not talking about the Union on company time or on company property. However, Don Mannino testified that he gave instructions to Mayfield and Pottorff, and Frank Mannino testified that he gave instructions to the drivers to refrain from such activity in the drivers' waiting room. Don Mannino testified further that he had received complaints from employees about the activity of Mayfield and Pottorff with regard to the Union and that was why he gave them such instructions. The record reveals that when drivers are in the waiting room they are not working, but are merely waiting to be dispatched. It is concluded that the prohibition was unlawful since it extended to nonworking time in a nonwork area and was, in essence, an unlawful no-solicitation rule imposed in violation of Section 8(a)(1) of the Act.37 (15) Gregory's threats to Hart and McGuire in mid- February that if the Union came in, there would be no overtime after 40 hours, and there would be a cut in hours. Richard Hart testified that, around the middle of February, McGuire and another person were present when he had a conversation with Gregory. His testimony with respect to the conversation was as follows: A. I asked Mr. Gregory what he thought of the Union coming in. He said he didn't care one way or the other, it wouldn't hurt him really, but if it did come in we would probably go down to 40 hours a week, no overtime. Q. Did he say anything else during the conversation? A. Not that I can recollect. Subsequently, he added the following testimony with respect to the conversation: A. No, then the rest of the conversation come out, that we would probably go down to 40 hours, `cause business 35It does not appear that this aspect of Pottorff's testimony is relied relating to these incidents, they were fully litigated. upon by the General Counsel in his brief as a violation of Section 37 The record does not reveal that the prohibition imposed was 8(a)3(6) of the Act. necessary to preserve production or plant discipline . Cf. Hicks Ponder Although there are apparently no allegations in the complaint Company, 168 NLRB No. 103. M & M CHARTER LINES, INC. 619 would fall off `cause there was no set rate as to what the other people could charge, and they would just under-cut. THE WITNESS: Oh. No. Well, he [Gregory] said - yes, he did, too He said that M & M right now has approximate- ly all their buses on the road and still calling other com- panies for more. He said that if it went Union, we would probably have ours sitting in the yard and somebody else would be calling for buses because they were just under-cut. Q. (By Mr. Simpson) Did they explain how the undercutting might come about? A. They just bid lower on the job. Q. Who would bid lower? A. Who would bid lower? The people that own the companies, the different companies, like California Charter, so on and so forth. Q. These would be companies other than M & M; is that right? A. Yes, sir. Q. And did he say why he thought they could bid lower? A. Because they wouldn't have to pay the Union scale. Q. And so, then, did he say what that would then lead to as far as M & M drivers are concerned? A. Probably would be layoffs and a cut in hours. Q. Did he say why that might happen? A. If a man doesn't have any work, he can't put you to work. In other words - Q. Did he say that? A. Something to that effect. If there is no work for Mr. Mannino to give you, then he can't go out on the road. This testimony which was substantially corroborated by Gregory is credited. It is concluded that Gregory's statements, in view of the explanation of the economic bases therefor, constituted predictions within the protection of 8(c) of the Act. (16) Don Mannino's threats to Diehl in early February that if the Union came in, the drivers would only be getting 40 hours a week. Diehl testified that he had a conversation around the first of February with Don Mannino in which Mannino asked him if he were going to quit if the company "goes Union," and that he said no; that Mannino asked him if he had been contacted by the Union to which he replied in the affirmative; that Mannino said there were two or three drivers "who were going to quit" if the company did go Union; that he asked Mannino "Who would be crazy enough to do that?"; that Mannino named two drivers; and that he told Mannino that he would not quit, "that he was going to ride it out; he couldn't drive me off," to which Mannino replied, "Well I sure hope not." Diehl's testimony continues as follows: I believe the man was encouraging me to stay rather than to quit. And he also told me that they had a Union in San Francisco. He could live with the Union; that they had a good bunch of boys in San Francisco. But he went on to say that we would only be getting 40 hours a week if we went Union, because the rates didn't warrant any overtime pay, their competitive rates didn't warrant it. And on that note, that was the way the conversation ended, as near as I can remember. It is concluded that Mannino's statement about cutting to 40 hours constituted an economic prediction within the protec- tion of Section 8(c) of the Act. (17) Gregory's threats to Robert Jackson in mid-February that if the Union came in, the drivers would be limited to 40 hours a week. Jackson testified to a conversation he had with Gregory in mid-February at the window of Gregory's office. His testi- mony is as follows: A. Well, Bill asked me if I could live on 40 hours a week, and I told him at the time, "Hell, yes. I'm living on less than that now." TRIAL EXAMINER: Was there anything else that was said either before or after to explain what he meant by his statement? THE WITNESS: Well, I believe the way I understand it, that if the Union came in, there would only be 40 hours. TRIAL EXAMINER: Did he say anything about it? THE WITNESS: No. TRIAL EXAMINER. He just blurted out if you could live on - THE WITNESS: Yes, sir. Jackson's testimony is credited. It is concluded that Gregory's blunt question as to whether he could live on 40 hours a week without explanation constitutes a threat in violation of Section 8(a)(1) of the Act. (18) Allen's threats to Gonzales during a number of conversations, beginning at the time the petition was filed until shortly before the election, that the employees would hurt themselves by "going union" and their hours would be cut. Gonzales testified that he had "numerous" conversations with Allen during the organizational campaign. His testimony as to the gist of these conversations is as follows: A. Talk got around to the Union. He asked me if I was for the Union, which I would always say yes. He would reply how stupid we were to think a Union could do us any good. And he'd actually run down-well, he'd just talk against it. How we were hurting ourselves. How we would get cut down by the hours, and how they could hire better drivers if they had to pay a little more money, could hire better drivers than what he had there now. And this continued on day after day, almost the same line of conversation. Allen testified that he did have numerous conversations with Gonzales about the possibility of unionization and that they "would just banter back and forth." Allen did not categori- cally deny the above-quoted testimony of Gonzales which is credited. Based upon the above analysis of Board Decisions involving statements with respect to the economic conse- quences of unionization, it appears from the above-credited testimony of Gonzales that Respondent did engage in threats violative of Section 8(a)(1) of the Act. (19) Gregory's threats to Gonzales during a number of conversations, beginning after the petition was filed until shortly before the election, that if the Union came in, commuter runs would be cut and nobody would work more than 40 hours a week. Gonzales testified to various conversations he had with Gregory with respect to the Union, all of which were similar in nature. His testimony as to the gist of these conversations is as follows: Came in one night, and Gregory told me how I felt about the Union, and I told him I was for a Union and I didn't have nothing to hide, and then he started telling me how a 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union would affect our place where we work there, spoke out against it, and said-I was on a commuter run at that time-he said it would be cut ; that the Company wouldn't be able to afford to pay us to run these buses if a Union came in. And I told him-he told us nobody would work more than 40 hours a week , and that was the same type of conversation we had three or four times I talked with him about it. Gregory testified that his conversations with Gonzales were in the nature of "joking." Gregory testified as follows. Moe used to carry on with a lot of the drivers , and Moe would say, "Yeah , I'm voting for the Union." And I'd say to Moe, "Wonderful , Moe. Wonderful . Wonderful, Moe. We'll all live on eight hours a day." That's the exact words I said to Mr. Gonzales. The testimony of Gonzales is credited and it does not appear from his credited testimony that the conversations could reasonably be characterized as "joking." However, according to Gonzales' testimony , Gregory did explain the economic basis for his opinion that the hours would have to be cut and, therefore , it is concluded that his statements with regard thereto were economic predictions within the protection of Section 8(c) of the Act. (20) Gregory's threats to Fogle and Blando in early February that if the Union got in, there would be no guarantees and employees would be cut to 40 hours a week. Fogle testified that at the beginning of February he had a conversation with Gregory at his office window, that Blando and someone else were present, and that they "were talking about the Union." Fogle testified as follows: Mr. Gregory said that anyone who had any full-time school runs would not be guaranteed the amount of guarantee that they were now receiving , and that I, having a six-hour guarantee a day, would not have a six-hour guarantee any more, and that Mr . Mannino was not in the position to support a Union when it came in. THE WITNESS : Well, he said if the employees voted the Union in, all employees would be knocked off, because Mr. Mannino wouldn't be able to guarantee anything, because the Union would ask too much of a wage. Blando testified that he overheard part of the conversation but it cannot be ascertained in what context the statements he heard were uttered. Therefore, it is deemed inappropriate to consider his testimony. Gregory testified that Fogle stayed at his window every day and talked to him about the Union but he could not remember the content of their conversations. However, subsequently , Gregory testified as follows: Q. How did these conversations normally commence? A. Well, he would come up there at the window, and he would start the conversation , "I wish they'd leave me alone. I'm happy with my job here. I don't want no Union here. I don't think we need one here." He says, "I'm real happy. I wish they'd leave me alone." He'd walk away from the window a couple few minutes, and he'd come back up and say something else, sir. But part of it I didn't pay any attention to, because I had quite a bit of work to do. There is no conflict in their testimony and consequently Fogle's testimony is credited as is Gregory's. It is concluded that Fogle frequently solicited Gregory's opinion as to the effect of unionization and that this was the case with respect to the above conversation to which Fogle testified . In such circumstances and in view of the fact that Gregory attempted to explain the economic reasons for cutting down on guarantees, it is concluded that General Counsel has not sustained the burden of proof of the allegation to which Fogle's testimony is related. (21) Gregory's threats to Fogle on or about February 10, that if the Union got in, Fogle wouldn't work any more than 40 hours a week. Fogle testified that he called Gregory on a Friday night during the course of a weekend run to report mechanical difficulties with his bus. Fogle testified further to their conversation as follows: And then he came into the conversation by saying that-he said , "You like weekend work like this, don't you?" And I said , "Yes, I do." And he said , "Well, if we go Union, you will not receive any more than 40 hours a week." At that time I was getting in between 50 and 55 hours a week. Gregory testified that their conversation was as follows: Mr. Fogle says, "Boy, I really better enjoy myself up here this weekend . It will probably be the last weekend I'll ever get back up here again." And I says, "Well , what do you mean by that, Bob?" And he says, "Well, the Union will come in and they'll take my hours away from me." I says, "Bob, it might be the last trip you'll ever get up there. We all might die. We don 't know." I can remember this. "This is costing me money. Let's get off the phone." It is evident from a study of the record that Fogle vacillated in his opinion as to the desirability of having union representa- tion and that he was concerned as to what effect it might have on the number of hours he would work. Furthermore, it appeared to the Trial Examiner that Gregory was a more convincing witness as to this particular incident . Consequently, Gregory's testimony is credited and it is concluded that General Counsel has failed to sustain the burden of proof of the allegation relating to this contention by the General Counsel. (22) Allen's threats to Fogle in early February that the runs would be cut if the Union came in. Fogle testified as follows to a conversation he had with Allen around the first part of February. Well, there was three of us standing there-Moses Gonzales, Garth Shomler , and myself-and we were kicking around the fact of the Union. And I says, "Well , I don't see how Mr. Mannino could cut any runs that were already set up and guaranteed, just because the Union took over. And Allen told them that he would do what he wanted, that no Union could tell the Employer what to do. And he said there should-that there sure would be, that all the runs would be cut. Allen testified that he did not recall any conversation with Fogle in which the subject of the Union was discussed in the presence of Gonzales and Shomler. Fogle's above-quoted testimony is credited, since this aspect of his testimony appeared convincing to the Trial Examiner and it is consistent with Allen's outspoken antagonism toward the Union. Conse- quently, it is concluded that, based upon the above-credited testimony of Fogle, Respondent , through Allen , threatened economic reprisal in violation of Section 8(a)(1) of the Act. (23) D. Mannino's threats to Blando on February 20 that if the Union got in, the employees would be cut to 40 hours a M & M CHARTER LINES, INC. 621 week and there would be no more commuter runs. Blando testified that on February 20 he had a conversation with Don Mannino during the course of which Mannino asked him "Can you live on 40 hours a week." His testimony as to what ensued is as follows: And I said, "Why?" And he says, "Well, if the Union gets in, that's what you're going to have to do. There will be no more commuter runs; they'll all be split up"-which they pay 10 hours right now; they will be all split up eight hours, maybe. He says, "What are you going to do then?" I said, "Well, I'll go get something else." Well, I meant part-time work. So he says, "Well, you're going to-this place up and then go someplace else." Q. Do you recall anything else that was said? A. Oh, he said-I says to him, "What can I do, Don?" He says, "Well, you're going to vote," he says, "and your vote counts. That's one vote." I just walked out, laughed and walked out. Mannino testified to their conversation as follows: Q. In your conversation did the subject of the union come up? A. Yes. Q. What was said, and by whom? A. Well, I don't recall how we got on the subject, but I told him I found it very difficult to understand why the top men-particularly him, who earned between $175 and $250 a week, would even entertain the idea of the union, and he said, "Well, we got a few gripes." And I said, "I don't know of any major ones. No one has ever come in with a major one." You know, they habitually beef at work, you know. He wanted time and a half. I said, "Well, that is another world." I didn't know how many others of my competitors paid time and a half. I didn't know that very many of them had, and I said, "You know, basically, it certainly isn't my criteria or reference to assume, but basically they represent a 40-hour week." And I told him-I think at that time we were paying $2.50 on charter. I said, "Even if you got a 50 cents an hour raise, how would you live on 40 hours at $3 an hour?" TRIAL EXAMINER You said something about your understanding was the union was 40 hours a week? THE WITNESS: I told him that basically the union has the reputation for instituting 40-hour weeks. They do that by an overtime provision for time and a half over 40 hours. TRIAL EXAMINER This is what you told him? THE WITNESS Yes. I said, "When you go for an overtime provision, generally speaking, you have created a 40-hour week." This was the message I was trying to get across to Q. (By Mr. Simpson) What did you say to him? A. I think this is what I said to him. And I said, "Even if you got a 50-cent raise-the union can negotiate for you a 50-cent raise-how in the world would you live on 40 hours?" I am talking to a man that takes home $200 a week. Q. What did he say to that? A. He just shrugged his shoulder. He had no answer. Q. Was there any discussion at that time about the union in San Francisco? A. No. Q. Was there any other discussion between you and him on the subject of the union at that time? A. Not that I recall. Q. How about the election? A. No. We never talked about the election. In the Trial Examiner's opinion Mannino was the more convincing of the two witnesses as to this incident. Further- more, Mannmo's version of what was said appeared to be the more likely of the two versions, in view of the evident care which Mannino generally took during the period material herem to explain the economic problems. Consequently, Mannino's testimony is credited and it is concluded therefrom that his statements to Blando as to the effect of union representation were predictions within the protection of Section 8(c) of the Act. (24) Gregory's threats to Jiminez , a week prior to the March 17 election, that the drivers would not benefit by joining the Union because their hours would be cut. Betty Jo Jiminez testified that during the early part of March 1967, she went into Gregory's office to ask him about a charter trip and that at that time he asked her what she thought about the Union. Her testimony continues as follows: I told him I didn't know. I have never been Union before. And I was not familiar with it, and just didn't really know. A. Well, at that time he says the drivers would not benefit by joining the Union because of their hours would be cut down. * * * * * A. And I did ask him what would happen if we did go Union, because the school bus drivers if they should go on strike, how would this affect the Company. And as far as the school routes were concerned. And he said that they wouldn't necessarily need school bus drivers to cover their runs; that they could get anyone from the Union Hall with a Class 2 license and cover the school bus runs and run them as a charter to get the kids to school. Her testimony is credited and it is concluded therefrom that Respondent, through Gregory, engaged in unlawful interroga- tion and a threat of economic reprisal in violation of Section 8(a)(1) of the Act. However, it does not appear that his last statement to her was violative of the Act, since it was, in answer to her question of what would happen if there were a strike, an explanation that the Company could hire replace- ments. (25) Allen's threats to the employees at the February 9 meeting at the Hacienda that if the Union got in, the Company would cut down all the hours; the 9-hour run would be cut to 6; the 6-hour run, to 4; the handicapped buses would be cut off, the last eight people hired would be laid off; and the women wouldn't get more than 40 hours a week. The record reveals that Allen attended a breakfast meeting of a group of the women drivers to give them his opinion with respect to the effects of union representation, and that he did so at their request. The record further reveals that it was made clear to the group assembled that he was not speaking for management but was giving his personal opinion. In view of these circumstances, the social nature of the meeting, and in further view of the fact that, although Allen was found to be a supervisor within the meaning of the Act, he served as a supervisor only in a minor capacity, it is concluded that the 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements he made in the course of the meeting were not coercive, but rather were within the category of opinions protected under Section 8(c) of the Act. Toma Studs Co., Inc., 170 NLRB No. 48. It is noted that, while Allen did pay for the breakfasts and was reimbursed thereafter by Mannino, it is deemed that this is not of sufficient significance to alter the finding that his statements could not reasonably have had a coercive effect upon the women drivers. (26) Selvin's threats to the employees at the March 15 meeting at Luigi's that she wouldn't sign a contract with the Union, and she would hold up a contract indefinitely. The Respondent held a dinner meeting of its employees at a restaurant on March 15, 1967, 2 days prior to the election. Mayfield testified that Gladys Selvin, labor consultant em- ployed by Respondent, who spoke at the meeting, stated that she had been fighting the unions for years and that she would not sign anything until she got what she wanted and that it might take months. Betty Jackson testified that Selvin stated at one point that "she had never been able to agree with the union and sign a contract38 and that she held up one company for 3 years." Robert Jackson testified that Selvin said she was definitely against unions and that she could hold up a union contract indefinitely. Selvin testified that she told the employees at the dinner meeting that the union and the employer have the obligation to bargain in good faith and, if they came to an agreement, to sign a contract; that neither the union nor the employer is compelled to accept the proposal of the other party and make concessions; that in one case involving the Crown Coach Company she bargained with the Union for 3 years and after 3 years the union charged that she had not bargained in good faith, and that, after a hearing on the complaint, the Board found that she had bargained only in bad faith on one minor issue (the duties of the supervisors). She further testified that she told the employees that if the Union won, she would bargain in good faith; that she had negotiated a number of contracts with the Union on behalf of other employers and she said that she "had been dubbed by a Trial Examiner as a tough negotiator which he said was permissible." It appears from the above-credited testimony of the three employees and Selvm that the employees attending the meeting reasonably understood that, while she would bargain with the Union if it won the election, she intended to prolong the negotiations for a contract. It is concluded that such an intent is contrary to the meaning of bargaining in good faith under Section 8(a)(5) of the Act, and that by conveying such an intent she attempted to discourage their adherence to the Union and thereby interfered with, restrained and coerced employees within the meaning of Section 8(a)(1) of the Act (27) Don Mannino's threats to the employees at the March 15 meeting that (1) he knew some companies that were put out of business because of the Union and his statement to the effect you never know what might happen to Respondent, (2) that if the Union came in, he would have to raise prices, charge more for buses and, therefore, they would lose business and he would have to shut down; (3) and that they would have to wear uniforms if the Union came in. 38This portion of Jackson 's testimony is not credited , since the Trial Examiner is of the opinion that it was what she understood was said rather than what Selvin stated. In his brief General Counsel summarized the testimony which he believes supports this contention as follows. Don Mannino, in response to questions, said the unions couldn't do much more for them than he could and that if the Union came in, he would lose business because he would have to raise his prices. Don Mannino said that he wasn't saying that a union would put them out of business, but he knew some companies that were put out of business because of the Union. He said that he wasn't saying that the same thing would happen to them, but "you never know." Mannino went into considerable detail to explain the economic reasons for his statements and it is concluded that his statements during the course of the meeting fall within the category of opinions or economic predictions protected under Section 8(c) of the Act. (b) The posting of antiunion propaganda: The record reveals that subsequent to the filing of the petition for an election two antiunion pictures were posted briefly on the company bulletin board in the drivers' waiting room One was a picture of James Hoffa with a noose drawn around his neck and the other was a picture of women picketing. The record reveals that Respondent attempted to prevent the posting of any propaganda either for or against the Union on the bulletin board. The record does not clearly disclose who was responsible for posting the aforesaid pictures on the bulletin board. However, it appears that subsequent to removal of the second picture from the bulletin board, it was posted on the inside of the window of the school bus division office so that it would be seen from the drivers' waiting room. It appears from the record that Allen was responsible for its posting in the window. The picture and caption underneath it were from a newspaper. The picture was that of women wearing masks picketing the Sacramento offices of a Teamster local. The caption explained that the women "were protesting irregular- ities in the local and national leadership for their working husbands." There had been added to the newspaper picture and caption the handwritten statement "This could be your wife." In his brief, the General Counsel contends, "The import of the picture was clear-that if the Union got in a strike was inevitable." There appears to be little merit to this contention. It is far from reasonable to assume that a picture of women picketing a Teamster local's headquarters because of union irregularities would convey to the drivers that, if the Company were unionized, a strike against the Company would be inevitable. It is concluded that the posting of the photo and caption clipped from a newspaper with the handwritten warning was no more than campaign propaganda and did not constitute interference, restraint or coercion within the meaning of Section 8(a)(1) of the Act. (c) Unlawful surveillance of a union meeting: The record reveals that on the evening of March 14, 1967, the Union held an organizational meeting at the union hall on Locust Street in Long Beach. At a time when a number of the employees were standing in front of the hall just before the start of the meeting, Gregory drove by in his car. One of the employees recognized him and called the fact of his presence to the others who were gathered on the sidewalk. Betty Jackson testified that Gregory was looking at the employees as he drove by. The record also reveals that employee James Stafford was a passenger in the car at the time. Stafford testified that as they drove past the union hall he recognized it and that he also saw several men standing on the sidewalk. He further testified that he recognized one of the men and that he mentioned to M & M CHARTER LINES, INC. Gregory that they had just passed the union hall. Gregory testified that he had no recollection of driving past the union hall. Both Gregory and Stafford testified that Stafford had been talking to Gregory about getting a job with Greyhound, that Gregory had invited him to meet two of Gregory's friends who worked for Greyhound with whom he had an appoint- inent, and that they were to meet at a Greyhound parking lot which was at the end of Locust Street. However, a study of the maps of the area shows that Locust Street is not a through street, and it was stipulated that just beyond the union hall it becomes a one-way street in the opposite direction to the one in which Gregory and Stafford were proceeding. In the opinion of the Trial Examiner it would be overextending the long arm of coincidence to credit the testimony of Gregory and Stafford that they inadvertently drove by the union hall, particularly in view of the circumstances that Locust Street was not the logical thoroughfare to use to reach their planned destination and that they drove by the union hall just before the meeting was scheduled to start. Furthermore, their testimony in explanation of the coincidence was not convincing. Conse- quently, it is concluded that Gregory's action was not inadvertent and that it constituted unlawful surveillance, or created the impression of surveillance, in violation of Section 8(a)(1) of the Act. 5. The discharge of Robert Fogle Robert Fogle was discharged on March 10, 1967. Consider- able testimony was introduced into the record concerning the events leading up to the discharge of Fogle. Rather than set forth the various versions as to the incidents which precipi- tated the discharge, there is set forth hereinbelow an account of what occurred based upon those portions of the testimony which the Trial Examiner credits.39 Before setting forth said account, the following facts should be noted: on a number of occasions prior to his discharge, Fogle indicated to management his opposition to the Union; it does not appear that Respondent believed or suspected he was active on behalf of the Union, however, shortly before the date of his discharge, Fogle protested to Allen the posting of antiunion propaganda. On the morning of March 10, Fogle protested the newspaper clipping that was posted on Allen's window and threatened to tear it off, and Allen warned him not to do so Fogle left the building, and went into the street where he spoke to Billodeaux, the Union's business agent. Billodeaux asked him if any NLRB election notices were posted and Fogle told him that there were not. Billodeaux gave Fogle some copies of the election notices. Fogle then returned to the drivers' waiting room with the notices and attempted to post one. Allen informed him that if he attempted to hang it up, he would tear it down, that it was the responsibility of Mannino to post it. Fogle said he would hang it on his locker, and Allen replied that Fogle could not do so because it was also company property. Fogle then approached the bulletin board and started to post one of the election notices. Allen reached over 39There is little contradiction in the testimony, except as to the force of Fogle 's blow and as to whether Allen stated he had been looking for a reason to discharge Fogle. Fogie 's testimony that_he 623 Fogle's shoulder and ripped part of the notice from Fogle's hand, bumping him slightly in the process of doing so. Fogle immediately swung around and struck Allen in the face with the back of his left hand in which he was holding other copies of the election notice. Allen shouted that Fogle was fired. Fogle said that he would not leave until he got his paycheck, and that he would hold the keys of the bus until he was paid. Allen then called Don Mannino and reported the incident to him. Mammno instructed him to give Fogle's run to another driver and to have Fogle wait until he arrived. Mannino arrived about an hour later and asked Fogle to come into his office. Fogle inquired whether he was fired. Mannino asked hun what had happened Fogle told hum that he had attempted to post the election notice he had obtained from Billodeaux, that Allen had ripped it down and that he had hit Allen with some paper. Fogle insisted on knowing whether he was fired and wanted his check. Mannino informed him that he would not make a determination until he investigated the incident. Since Fogle insisted on being paid, Mannino gave him a check for the amount it was figured was due to Fogle up to that date. Mannino then interviewed several of the drivers who had witnessed the incident. Fogle called Mannino on two occasions that day to ascertain his decision. On the first occasion, Mannino told him that he had not made up his mind, that he was still investigating the matter. On the second occasion, he told Fogle that he had decided to fire him for striking Allen. It is concluded that General Counsel has failed to sustain the burden of proof that the discharge of Fogle was unlawfully motivated within the meaning of Section 8(a)(3) of the Act or that he was refused reemployment in violation of said Section. It is found that the motivation for the discharge was Fogle's striking of Allen and this act was not seized upon as a pretext for discharging him. The General Counsel argues that Fogle's conduct was "provoked" by Allen's attempt to prevent Fogle from posting the election notice. Granted that Fogle's striking of Allen was in retaliation for Allen's tearing the election notice from Fogle's hand, nevertheless the retaliation was an excessive response to the "provocation." In any event, the issue is not whether Fogle was or was not justified in striking Allen, but rather whether the discharge was unlawfully motivated. In view of Mannino's thorough investigation of the incident before coming to the decision to discharge Fogle and the entire circumstances, it is concluded that the discharge was for disciplinary reasons and that there is no basis for concluding that Allen attempted to goad Fogle into attacking him in order to provide Respondent with a cause for his discharge in concealment of an unlawful motive. 6. The termination of Mayfield's employment On or about March 24, 1967, Eleanor Mayfield, a school bus driver, gave Frank Mannino, head of the school bus division, 2 weeks' notice that she was leaving Respondent's employment. On April 3, she told Mannino that she had changed her mind about leaving and would like to continue her employment. On April 7, the end of the 2 weeks of her merely brushed Allen's face with the paper he was holding and that Ailed made the aforesaid statement is not credited. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aforesaid notice, she was notified that the Respondent would not reverse its acceptance of her resignation and that it "cannot grant" her reemployment. The General Counsel contends that "the real reasons and moving cause of Mayfield's termination were her known union activities." Although the record does not reveal that Mayfield was active on behalf of the Union, the record will support a finding that Respondent suspected her of, at least, being pro-union. She attempted to promote the idea of a debate between representatives of management and Union, and it was found hereinabove that she was one of the individuals whom Don Mannino unlawfully told to stop discussing union matters in the drivers' waiting room. However, despite these findings, it is concluded that Respondent's acceptance of her resignation and refusal to reconsider her employment were not unlawfully motivated. The record reveals that she did not have a good record as a driver. On March 9, she was warned of two cases of excessive tardiness in making her assigned runs, a failure to appear for an assigned run and two "chargeable accidents." It further appears that she was excessively tardy for another assignment subsequent to the letter of March 9. She testified that on April 3, when she told Mannino that she would like to remain in Respondent's employ, Mannino told her that they were glad to have her because there was no one to replace her, since the man who was supposed to do so never called back. Mannino testified that sometime prior to April 3 he notified her replacement, who was Robert Keenum, that he should arrange for qualifying for employment, that he was given some training, a physical examination and arrangements were made for him to obtain his license. The parties stipulated that Keenum applied for employment on March 19, 1967, and was hired on April 3, 1967, the very day that Mayfield testified she was told by Mannino that he would be glad to have her back because her replacement had not reported. The record reveals the existence of the practice of the Respondent to require training (where necessary), physical examination and obtaining of a license before hiring which corroborates Mannino's testimony that her replacement was being processed prior to April 3. There is no basis for inferring that Keenum was not hired as Mayfield's replacement. Therefore, Mayfield's testi- mony as to the statements Mannino made to her on April 3 cannot be credited. Mannino testified, and his testimony is credited, that he did tell her on April 3 that he would think over her request to withdraw her resignation. Mayfield received a letter on April 7 notifying her that the Company would not reconsider the acceptance of her resignation because her replacement had been hired and because of deficiencies in her driving record. The said reasons were well documented and it does not appear that there is a sufficient basis to draw the inference that they were merely pretextual. Consequently, it is found that the General Counsel has failed to sustain the burden of proof of the allegation that Mayfield's employment was discriminatorily terminated or that she was refused reemployment, in violation of Section 8(a)(3) and (1) of the Act. 40In addition the record indicates that on a number of occasions during these nine pay periods Pottorff either refused assignments or was unavailable for assignments . Quite a few of such occasions are set forth 7. The termination of Pottorff's employment By letter dated April 11, 1967, Pottorff, with the aid of the Union, wrote as follows to Respondent: At this time, due to discrimination against me, I wish to tender my resignation as of this date. The discrimination against me is for supporting union activities in the recent NLRB election. I consider this a constructive discharge rather than a voluntary termination by me. Please be advised that I wish to resume employment when you cease discrimination against me. I can be reached at my home address and telephone number which is listed below. It appears that on April 11, 1967, Pottorff applied to Airport Transit for employment and was hired. It further appears that the letter was not mailed until April 14 and was not delivered until Monday April 17. The letter was sent by certified mail and apparently an unsuccessful delivery was attempted on April 15, when notice was left. Also on Monday, April 17, Respondent received a letter from Airport Transit indicating that Pottorff had been employed by that company. On April 20, Respondent sent Pottorff a letter stating that it considered that Pottorff had voluntarily terminated his employment and that it would not consider his reemployment. General Counsel contends that Pottorff was constructively discharged by reason of the discriminatory treatment Respon- dent gave Pottorff after its discovery of his union activities and pro-union sentiment on or about February 8, 1967. Pottorff testified that after said discovery his hours were cut in half, that he was given a disproportionate amount of undesirable charter trips and that he was frequently assigned inferior buses In addition, the General Counsel contends in his brief that two other employees who were hired after Pottorff received considerably more work than Pottorff. A review of the record reveals the following facts: Pottorff's average earnings for 7 day periods up to the one ending February 11, 1967, were $62.25 per week. For the following 9 pay periods after the discovery of his pro-union activity and sentiments to the end of his employment Pottorff averaged $60.60 per week 40 Thus, it is found that there was no significant difference in Pottorff's work hours after Respondent's discovery of his union activities and sentiment. It appears from Pottorff's cross-examination and the records of the Company that Pottorff did not receive such a significantly large number of assignments of undesirable runs and inferior buses as to permit the inference that he was discriminated against by Respondent in these matters. Further, it does not appear that there is much merit to General Counsel's contention that Pottorff was unlawfully discrimi- nated against by virtue of the fact that he received less work than Kirksey and Stafford who, General Counsel claims, were hired after him. It should be noted that neither of the two was a new employee; from Gregory's credited testimony, it appears that both Kirksey and Stafford had previous periods of employment with Respondent. Furthermore, for the seven pay periods preceding the discovery of Pottorff's union activities in the aforesaid letter from the Respondent to Pottorff dated April 20, 1967 . It should be noted, however, that the Trial Examiner does not rely on the letter as proof of the truth of its contents. M & M CHARTER LINES, INC. and sentiment on February 8, Stafford consistently earned considerably more than did Pottorff, as did Kirksey for the approximately 3 weeks he worked prior to the discovery of Pottorff's prounion activities and sentiment. It is also noted that for the first full pay period after February 8, Pottorff received the second highest weekly paycheck of those he received for the last 16 pay periods he worked. Consequently, it is concluded that the General Counsel has failed to sustain the burden of proof that Pottorff was constructively discharged or refused reemployment in violation of Section 8(a)(3) and (1) of the Act. 8. Warning notice to Ed Blando Blando testified that on March 12, 1967, he told Gregory that the posted picture of women picketing had just bought a "yes vote" for the Union, and that when Gregory asked him if he was going to vote for the Union, he replied that he was. Gregory admitted that the conversation took place but could not remember the date. Blando further testified that on the following day, March 13, he received a warning notice. The warning notice, however, was dated February 13 which date he crossed out and substituted that of March 13 for it. The notice referred to three matters, occurring December 16, 1966, January 15 and February 11 or 13, 1967.4 i Blando's above testimony is uncontradicted and is credited. When Don Mannino was questioned with respect to the issuance of written warning notices he testified that with the advent of the Union the "rules of the game" were changed. In view of all of the foregoing, particularly the timing of the notice one day after his prounron attitude was discovered covering matters which occurred a month to 3 months earlier, it is concluded that the issuance of the warning notice to Blando was discrimmatorily motivated and violative of Section 8(a)(3) and (1) of the Act. Lifetime Door Company, 160 NLRB 319, 323. 9. Alleged unlawful refusal to bargain In view of the finding hereinabove that the General Counsel has failed to prove that at any time material herein, and particularly on February 11, 1967, the Union represented a majority of the "eligible voters" in the appropriate bargaining unit, it is concluded that Respondent was under no obligation to recognize and bargain with the Union. Consequently, it is concluded that the Respondent did not violate Section 8(a)(5) and (1) of the Act, as alleged in the complaint. 10. The objections to the election By order dated October 16, 1967, the Board directed that a hearing be held in the aforesaid Case 31-RC-473 on the issues raised by objections 2 through 10 filed therein by the Union. The following are said objections and conclusions with regard thereto. 2. Since on or about March 10, 1967, the Employer has discouraged membership in the Petitioner by discharging, and by refusing to employ Robert Fogle, its employee, and by discriminating in employment opportunities tendered to 41 The third matter is referred to in the first paragraph as having occurred on the day the letter was dated , February 13, but is again referred to in the next to the last paragraph as having occurred on February 11. 625 John (Garland) Pottorff, its employees, because of their membership in, and activities in behalf of the Petitioner. In view of the findings hereinabove that the Company did not discriminatorily discharge Fogle and did not discriminate against Pottorff in his employment opportunities, it is concluded that this objection is without merit. 3. The Employer informed employees that if the Union came in he would cut them to forty hours of work per week. In view of the several findings hereinabove that the Respon- dent violated Section 8(a)(1) of the Act by threats of economic reprisal such as the cutting down of the workweek, it is concluded that this objection is meritorious. 4. The Employer stated to employees that he had hired a "union buster". Although there is testimony that Mannino made a statement to an employee that he had hired a union buster, said testimony is not credited and it is concluded that this objection is without merit. 5. The Employer accused employees of having been responsible for bringing the Union in. It appears that there is credited testimony which tends to support this objection.42 Therefore it is concluded that it is meritorious. 6. The Employer has interrogated employees regarding why they wanted the Union. In view of the findings hereinabove that the Company has unlawfully interrogated employees, it appears that this objection is meritorious. 7. The Employer forbade employees to engage in activities in behalf of the Union while on Company property, even if such activities were conducted on the employees' own time. In view of the findings hereinabove that both Don Mannino and Frank Mannino instructed drivers, and two in particular, not to discuss union activities while they were in the drivers' waiting room which was during their nonworking time and in a nonworking area, it is concluded that this objection is meritorious. 8. The Employer stated to employees that he knew the identity of the employees who were the "ring leaders," naming them. It is found that this objection is without merit, since there is no credited testimony which would support it. 9. The Employer stated to employees that he should fire the employees who were active on behalf of the Union. In view of the finding heremabove that Allen stated to Rust that he would be fired if he were a "union rabble-rouser," it is concluded that this objection is meritorious. This objection is also supported by the credited testimony of White that Allen threatened that a number of employees "won't be worrying about jobs," if the Union does not get in. 10. The Employer stated to the employees that he did not intend to furnish the Excelsior list, his purpose being to stall off certification of the Petitioner by the N.L.R.B. as long as possible. There is some testimony with respect to a statement supposedly made by Mannino with regard to not furnishing 42 The testimony which appears to relate to this objection is that of Pottorff, who testified that he admitted to Mannino that he was soliciting cards for the Union after he was accused of doing so by Mannino. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD names to the Labor Board. However, the testimony is too vague to support a finding that this objection is meritorious. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent, set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the Recommended Order below, designed to effectuate the policies of the Act. It having been found that certain of the Objections to the Election filed by the Union in Case 31-RC-473 are meritorious, it will be recommended that the election be set aside and a second election be held. Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All bus drivers, including regular part-time drivers, employed by the Company at its Harbor City operations, excluding all other employees and all supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. John Allen is a supervisor within the meaning of the Act. 5. General Counsel has failed to sustain the burden of proof of the allegation that Thomas Nicolello is a supervisor within the meaning of the Act. 6. As of February 11, 1967, 70 employees in the above-described bargaining unit were in the category of "eligible voters." 7. Of the aforementioned 70 eligible voters only 30 had validly designated the Union as of February 11, 1967, as their collective-bargaining representative. 8. The General Counsel has failed to sustain the burden of proof of the allegation in the complaint that on or about February 11, 1967, and at all times thereafter the Union represented a majority of the employees in the above-described bargaining unit. 9. Respondent interfered with, restrained, and coerced employees within the meaning of Section 8(a)(1) of the Act by engaging in the following conduct: (a) Unlawfully interrogating employee Robert Jackson in early February 1967 through its agent Frank Mannino, employee Loyal Diehl on or about February 9, 1967, through its agent Willard Gregory, and employee Betty Joe Jimmez in the early part of March 1967 through its agent Gregory. (b) Communicating threats of economic reprisal for ad- herence to the Union to employee Jackson in early February 1967 through its agent Frank Mannino, to employee John Rust in the middle of February through its agent John Allen, to employee Eugene White in early February and first part of March through its agent Allen, to Robert Fogle on or about February 10 through its agent Dominic Mannino, to employee Fogle in early February and mid-February through its agent Allen, to employee Garland Pottorff in mid-February through its agent, Gregory, to employee Jackson in mid-February through its agent Gregory, and to employee Moses Gonzales on a number of occasions in February and March through its agent Allen. (c) Prohibiting employees from discussing union matters while in the drivers' waiting room which is a nonworking area where they spend their nonworking time. (d) Threatening to prolong bargaining negotiations for a contract, should the employees select the Union as their bargaining representative through its agent Gladys Selvin on March 15, 1967. (e) Engaging in surveillance of a union meeting on March 14, 1967, or creating the impression thereof, through its agent Gregory. 10. The General Counsel has failed to sustain the burden of proof of all allegations in the complaint of independent violations of Section 8(a)(1) of the Act, other than those related to the above-described conduct which was found to be violative of the said Section of the Act. 11. Respondent violated Section 8(a)(3) and (1) of the Act by issuing a discriminatorily motivated warning notice to Ed Blando on March 13, 1967. 12. General Counsel has failed to sustain the burden of proof of the allegation in the complaint that Robert Fogle was discriminatorily discharged and refused reemployment, in violation of Section 8(a)(3) and (1) of the Act. 13. General Counsel has failed to sustain the burden of proof of the allegation in the complaint that Respondent discriminatorily discharged Eleanor Mayfield, and refused her reemployment, in violation of Section 8(a)(3) and (1) of the Act. 14. The General Counsel has failed to sustain the burden of proof of the allegation in the complaint that Respondent constructively discharged Garland Pottorff and refused him reemployment in violation of Section 8(a)(3) and (1) of the Act. 15. General Counsel has failed to sustain the burden of proof of the allegations in the complaint that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union. 16. With respect to Objection Nos. 2 through 10 filed by the Union to the election in Case 31-RC-473, Objection Nos. 3, 5, 6, 7, and 9 are found to be meritorious and Objection Nos. 2, 4, 8, and 10 are found to be without merit. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, it is ordered that M & M Charter Lines, d/b/a M & M Charter Bus Lines, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees with respect to their union sentiments and activities. (b) Threatening employees with economic reprisals should M & M CHAPTER LINES, INC. they adhere to the Union or select the Union as their bargaining representative. (c) Prohibiting employees from discussing union matters in nonworking areas and on nonworking time. - (d) Threatening to prolong bargaining negotiations for a contract should the employees select the Union as their bargaining representative. (e) Engaging in surveillance of the protected activity of its employees or creating the impression thereof. (f) Issuing discriminatorily motivated warning notices. (g) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act- (a) Withdraw and delete from its personnel records the discriminatory warning notice given to Ed Blando. (b) Post at its place of business in Harbor City, California, copies of the attached notice marked "Appendix."43 Copies of said notice, on forms provided by the Regional Director for Region 31, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the receipt of this Decision, as to what steps the Respondent has taken to comply herewith.44 IT IS RECOMMENDED that the allegations in the com- plaint relating to the termination of the employment of Robert Fogle, Eleanor Mayfield, and Garland Pottorff should be and are hereby dismissed. IT IS RECOMMENDED that the allegations in the com- plaint relating to a violation by Respondent of Section 8(a)(5) and (1) should be and are hereby dismissed. I T IS RECOMMENDED that the allegations in the com- plaint of independent violations of Section 8(a)(1) of the Act other than those which were found hereinabove to have been sustained should be and are hereby dismissed. IT IS FURTHER RECOMMENDED that the Board set aside the election of March 17, 1967, in Case 31-RC-473, and that a second election by ballot be conducted for the employees in the appropriate unit as promptly as possible, subject to the Board's Rules and Regulations, as amended. 43In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 44In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 627 After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, M & M Charter Lines, Inc. d/b/a M & M Charter Bus Lines, violated the National Labor Relations Act, as amended, and ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully question employees as to how they feel about the Union, Chauffeurs, Sales Drivers & Helpers, Local 572, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or as to whether they are engaging in activities on behalf of the Union. WE WILL NOT threaten employees with any action that will affect their employment or their working conditions because they are in favor of the Union, or because they decide to have the Union represent them. WE WILL NOT prohibit employees from discussing any union matters while they are in nonworking areas and on nonworking time. WE WILL NOT threaten to stretch the time required to negotiate a contract, if the employees select the Union as their bargaining representative. WE WILL NOT attempt to observe what employees attend union meetings or give employees the idea that we are doing so. WE WILL NOT give a warning notice to an employee about his work performance because he is in favor of the Union. WE WILL withdraw from our personnel records the discriminatory warning notice we gave to Ed Blando. M & M CHARTER LINES, INC. d/b/a M & M CHARTER BUS LINES (Employer) Dated By (Representative) (Title) 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from compliance with its provisions, they may communicate the date of posting, and must not be altered, defaced, or covered directly with the Board's Regional Office, 10th Floor, Bartlett by any other material. Building, 215 West Seventh Street, Los Angeles, California If employees have any question concerning this Notice or 90014, Telephone 688-5850