Southeastern Stages, Inc.

SOUTHEASTERN STAGES, INC. 585 Southeastern Stages, Inc. and Amalgamated Transit Union, Division 1493 and Maurice N. Bussey and Union Local Division 1493, Amalgamated Transit Union, AFL-CIO-CLC. Cases 10-C A-6990, 10-CA-7155-2, and 10-CA-7386 February 18, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 30, 1968, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Therafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with 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 and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner- Upon charges, duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10 (Atlanta, Georgia), issued an order consolidating cases and complaint on July 17, 1968,' against Southeastern Stages, Inc., herein called the Respondent or the Company, alleging that it had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 51 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held in Augusta, Georgia, on July 31 and August 1, 1968. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses and to file briefs. Briefs have been received from the General Counsel and the Respondent and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: L THE BUSINESS OF THE RESPONDENT The Respondent is a Georgia corporation with its principal office located in Atlanta, Georgia, and a terminal located at Augusta, Georgia, where it is engaged in the interstate transportation by motor vehicle of passengers. During the 12 months preceding the issuance of the complaint herein, Respondent derived gross revenue in excess of $50,000 from the interstate transportation of passengers. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Union Local Division 1493, Amalgamated Transit Union, AFL-CIO-CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Southeastern Stages, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'we agree with the Trial Examiner that the Settlement Agreement here involved did not, in the circumstances of this case , bar litigation of the presettlement 8(a)(l) allegations It is well settled that independent or continuing violations of the Act constitute a breach of the settlement agreement and justify the Regional Director in setting aside the agreement and proceeding with a complaint which covers both the presettlement and postsettlement violations. Cf. Lion Knitting Mills Co., 160 NLRB 801, 804; Nitro Super Market , Inc., 161 NLRB 505; International Brotherhood of Teamsters, Chauffeurs, Workmen and Helpers of America, General Drivers and Helpers, Local 554, AFL-CIO v. N.L.R B, 262 F 2d 456, fn. 2 at 459, 461 (C.A D.C.), enfg 116 NLRB 1891 III. THE UNFAIR LABOR PRACTICES A. Prefatory Statement The Respondent, engaged in bussing passengers to various points in Georgia and South Carolina, has terminals in Augusta and Atlanta, Georgia, and employs approximately 55 bus drivers. Beginning on about April 12, 1967, the Union commenced an organizing campaign among Respondent's bus driver employees. Thereafter the Union lost a Board conducted representation election which was held at the Atlanta terminal on August 2 and at the Augusta terminal on August 3, 1967. Maurice M. Bussey was discharged by the Respondent on November 15, 1967, and Paul Hammock was discharged on April 27, 1968. The complaint alleges that 'This complaint consolidated the allegations in a previous complaint issued by the Regional Director on July 9, 1968 , in Case 10-CA-6990 and Case 10-CA-7155-2 The charges involved in the instant hearing were filed on June l4, 1967, August 4, 1967, and on June 4, 1968. 174 NLRB No. 85 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of these employees, both bus drivers, were discharged by the Respondent in violation of Section 8(a)(1) and (3) of the Act, and further, that Respondent engaged in conduct independently violative of Section 8(a)(1) of the Act. B The Discharge of Maurice M. Bussey Bussey was employed by Respondent at the Augusta terminal as a bus driver from July 3, 1960, until his discharge on November 15, 1967. He signed a union authorization card on April 12, 1967. Although he also spoke to other employees in favorable behalf of the Union, there is no direct evidence that this activity or his signing a union card came to the attention of the Company. Odell D. Shipman, Sr., is the Augusta manager and supervisor of the drivers who work out of this terminal. Bussey testified that on about June 5, 1967, during a telephone conversation, Shipman asked if he was aware that the Union was about to have an election and that he replied in the affirmative. Bussey said that Shipman then asked if he could depend on him for cooperation on the Company's behalf. Although Bussey did not recall his reply, he testified that Shipman then asked if he was aware that he could borrow money from the Company -without interest. The conversation then turned to a trip assignment. When asked on direct examination, Shipman denied that on June 5 he asked Bussey if he could depend upon him for cooperation. On cross-examination he said he did not recall having a conversation with Bussey on June 5. As will be later set forth, this is not the only instance where Shipman discussed the Union with Bussey and there are additional instances where Shipman and other supervisors discussed this subject with other employees. Bussey impressed me as a believable witness and I credit his testimony as aforesaid. Bussey testified that on August 1 he had a second conversation with Shipman, Sr. while having coffee with Charlie McDaniel, another of Respondent's bus drivers, in the cafeteria of the Greyhound station.2 Bussey testified that Shipman, Sr., came up and stated, "Bussey, I don't guess I'll see you anymore before the election, but I just want to tell you that I sure wish you would change your mind." According to Bussey, Shipman, Sr., then suggested that he go down the street to the Trailways station and compare salaries, stating that he then would be satisfied and that he was making "a good average salary." Shipman concluded by stating that "most of our drivers are loyal drivers and I'm sure you can understand the' circumstances." On direct examination, Shipman, Sr., denied that on August 1 he told Bussey he hoped that Bussey would change his mind. On cross-examination, he recalled having a conversation on about August 1 while Bussey and McDaniel were in the cafeteria. He said that at the time he sat at the table having coffee with these two employees but that he only remembered stating to Bussey, "If I don't see you again before the election, I hope we can count on your support." McDaniel, who was called as a Respondent witness, testified that there was no conversation, as such, at the cafeteria on August 1. However, he testified that as he and Bussey were getting up from the table to leave, Shipman, Sr., came up and told Bussey that "he didn't believe he would see him again before the election and he hoped that he would see fit to vote for his side at the election." McDaniel testified that Shipman, Sr., did not make any of the other statements attributed to him by Bussey. It appeared to me that Bussey had a very good recollection of this conversation and I credit his testimony concerning it. A third conversation involving Bussey and Shipman, Sr., took place at Respondent's Augusta office on August 3, the day of the election, about 2 hours before the polls closed. C. A. Clifford, whose supervisory status is at issue herein,3 was also present and A. L. Shelton, a Respondent bus driver, was present for the first part of the conversation. Bussey's version of the conversation which occurred at this time is as follows: Shipman, Sr., began by stating, "I sure do wish you fellows would have gone to Atlanta and talked this over with my brother and ironed out your difficulties, and then if you could not have gotten the raises or benefits that you wanted, then you could have took such a step as you are taking today."4 He then went on to tell Bussey that Bussey had only one car when he first knew him but that he now had two cars and a brick home. Continuing, Shipman added that he knew for a fact that Bussey would never have the same salary as a Greyhound driver. He then stated, "Bussey, if this election does go in favor of the Company, you will have to be a perfect driver in order to hold your job." At about this point Clifford spoke up, stating that he recalled when drivers earned 3 cents per mile and he did not see why anyone should complain about their present salary. Bussey thereupon brought up the subject of driver pensions and commented "the year I draw $127 a month will be the year 1995." Thus Bussey's testimony concerning this conversation. When asked about this conversation on direct examination, Shipman, Sr., testified as follows: Q. I'll ask you if on August 3, 1967, in a conversation with Mr. Bussey and, perhaps, Mr. Clifford, did you say if the election goes in favor of the company you will have to be a perfect driver? A. No, sir, I don't remember. Q. Did you at any time say anything like that to Mr. Bussey? A. No, sir, I did not. When asked about the August 3 conversation on cross-examination, Shipman, Sr., said, "I had a conversation with a lot of drivers, because they were all there that day, and I don't remember exactly what was said." C. A. Clifford, who testified for the Respondent, said that he heard "quite a bit of conversation among different drivers . on election day, Mr. Bussey included." He testified that most of the discussion concerned the mechanics of the election and that he did not hear Shipman tell Bussey that he would have to be a perfect driver if the election went in form of the Company. From my observation of the witnesses,- I believe that Bussey was truthful in relating the August 3 conversation and I accept his version concerning it. Further relevant to Bussey's case is the testimony of Charles T. Brumbeloe, employed by the Respondent as a driver at its Atlanta terminal from November 21, 1965, to September 12, 1967, when he was discharged. Brumbeloe said that he had a conversation with Shipman, Sr., in May 1967. Concerning this conversation, Brumbeloe testified, "All it was, he was telling his side; that he was against the union, and I was telling my side that I was for the union and we were just bumping heads on our 'Although the Respondent shares the use of Greyhound's facilities, this is not its headquarters in Augusta. 'Clifford is a mechanic but also relieves Shipman , Sr., when the latter is absent The issue of Clifford' s status is discussed hereinafter 'The reference to the brother of Shipman, Sr , is to A. C. Shipman, the president of the Company who is stationed in Atlanta. SOUTHEASTERN STAGES, INC. 587 feelings." According to Brumbeloe, he 'had a second conversation with Shipman, Sr., on August 2, approximately 18 or 19 hours before the election in Atlanta This occurred in a shop located across the street from the bus station in Augusta. As to this conversation, Brumbeloe testified, "It was just more or less going into detail about how we felt about the union campaign, and the people who were for it, and so forth. Of course, I didn't say. He made some guesses, and so that's all that discussion was." Brumbeloe testified that he had a third conversation with Shipman, Sr., on about the third day following the election in Atlanta. This occurred after he pulled into the Augusta bus station. According to Brumbeloe, Shipman, Sr., called him over to where he was standing after the passengers got off the bus. Brumbeloe testified that Shipman was angry and that the following conversation then ensued: Shipman, Sr., began by asking, "How come you went and told this stuff we were talking about?" He then stated that charges had been filed against him for talking union to Brumbeloe prior to the 24-hour preelection period. Brumbeloe denied Shipman's charge, stating that he "didn't tell anybody about our conversation." Shipman stated, "You had to because nobody heard our conversation. We were the only two who had it; nobody was around." Brumbeloe again denied that he had mentioned anything about the conversation. Shipman thereupon stated, "If I knew you said anything about that I would get you. I'm going to get Bussey." Again denying that he had said anything, Brumbeloe finally told Shipman, "As far as that goes, I can stay squared away long enough while I come in this bus station in Augusta that you won't have any reason to fire me, and I'll be in and out before that could happen." Shipman, Sr., did not deny discussing the Union with Brumbeloe in May and on August 2, 1957, as Brumbeloe testified. Concerning Brumbeloe's testimony with respect to the conversation on about the third day after the Atlanta election, Shipman, Sr., denied being aware of any charges or objections filed against the Company at that time. Other than this, his sole testimony concerning this matter was as follows: (on direct examination) Q. Did you have a conversation with Mr. Brumbeloe at about that time in which you stated, if anything happens, I am going to get Bussey? A. No, sir, I did not say that. Brumbeloe impressed me as being an honest and forthright witness. I do not believe that he fabricated his testimony concerning the conversation with Shipman, Sr., following the election. Furthermore, lending plausibility to Brumbeloe's testimony is that fact that (1) Brumbeloe's testimony concerning his conversation with Shipman, Sr., on the day before the election is undenied, and (2) an unfair labor practice charge alleging a violation of Section 8(a)(l) of the Act was in fact filed against the Respondent on August 4, 1967, a factor which ties in with the conversation as testified to by Brumbeloe.s I credit Brumbeloe's testimony conversation as narrated above. Bussey was discharged about 4 p.m. on November 15, 1967. It is undisputed that at this time Shipman advised Bussey that he had orders from Wilmer S. Dixon, the supervisor of drivers in Atlanta, that he be discharged for unsatisfactory work. When Bussey asked for an explanation of the unsatisfactory work, Shipman, Sr., replied, according to Bussey's undenied testimony, that it was "because of this transmission deal and other things." 'This charge was filed in Case 10-CA-6990. The Union did not, however, file objections to the election. Bussey also testified without contradiction that he told Shipman, Sr., "You know this all involves around the fact that I wanted to join the union," to which Shipman responded, "I sure hope that you can get a job that is union." Later that day Bussey telephoned Shipman, Sr., and requested a letter stating the reason for his discharge. This was furnished him in a letter dated November 17, 1967, which stated as follows: Mr M. N. Bussey 1810 Courtney Drive North Augusta, S. C. 29841 Dear Mr. Bussey: Recently you were checked at night and for a distance of more than twenty miles, you were running beyond the speed limit and driving recklessly. We have reports from the State Highway Department showing you record since 1960. For a period of one month in 1966, your driver's license was suspended, but you did not tell us and you continued to drive during this period. About two weeks ago you damaged a transmission to approximately $1,000.00 by running it without oil, and you failed to report this on the shop card in the bus. A record such as this is justifiable reason for discharge. Very truly yours, SOUTHEASTERN STAGES, INC. A. C. Shipman The reasons given Bussey for his discharge in the above letter are essentially the same as those advanced by the Respondent at the hearing as its defense to the alleged discrimination against him. In presenting its case as to Bussey, Respondent first introduced in evidence a typewritten memorandum which Shipman, Sr., said he prepared after having followed a bus driven by Bussey in his own car on August 29. This memorandum, the contents of which were not refused by Bussey, is set forth in its entirety as follows: M. N. Bussey August 29, 1967 I followed bus 198 driver M. N. Bussey from Lurnpkin road on highway 25 at 10:00 A.M. to Augusta, Ga. arriving at 10:13 A.M. from Lumpkin road to Tubman home rd. is 40 M.P.H. speed limit, top speed of bus was 57 M.P.H. From Tubman home rd. to Augusta the speed limit is 40 and 45 M.P.H. top speed of bus in 45 mile limit was 55 M.P.H. The blinker lights was on while slowing down for RR crossing, did not come to full stop at RR crossing. Traffic was light and he did not change lanes many times. O. D. Shipman About October 31, 1967, Shipman, Sr., requested C. A. Clifford, Jr., to accompany him because he wanted to check Bussey while he was on the road. Clifford testified that Shipman stated that this time he wanted to use a truck because Bussey might recognize his (Shipman's) car. Clifford further said, "He [Shipman] was not familiar with the driving of a truck and he hadn't had much experience in it, and he asked me to drive for him." The results of this observation were reported in a letter dated October 31, 1967, which Shipman, Sr., sent to A. C. Shipman, the Company's president, in Atlanta. (Bussey did not refute the statements made in this letter.) 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dear Sir: At 7:10 P.M. October 30, 1967 about two miles east of Beech Island, S. C. on highway 278 we were traveling at 50 M.P.H. when bus 179 came up behind the pick-up truck that we were traveling in. The bus followed us about 2 miles at the same speed, he then made a stop to let a passenger off. We reduced speed to 40 M.P.H. the bus caught us and past us. Then we increased our speed to 60 M.P.H. and the bus left us behind. The bus stopped at intersection of highways 19 & 278 (Johnson's Cross Rd.) to let off a passenger and we were able to catch up with the bus. The bus continued east on highway 278, attaining a speed of 70 M.P.H. We followed the bus at an average speed of 70 M.P.H. on highway 278 to a point 2 miles east of it's junction with highway 781. We observed the bus from 7:10 P.M. to 7:32 P.M. The bus traveled 22 miles in 22 minutes, for an average speed of 60 M.P.H. It was dark and the speed limit was 55 M P.H. Bus No. 179 Driver - M. N. Bussey Schedule leaving Augusta at 6:45 P.M. to Savannah, G a. Signed /s/ O. D. Shipman, Sr. Signed /s/ C. A. Clifford, Jr On November 12, 1967, Bussey was operating a bus from Charleston, South Carolina, to Augusta, Georgia. After having traveled about 52 miles, Bussey testified that the oil light on the dashboard turned red. Bussey said that upon observing this danger signal he disengaged the gear from high to neutral and coasted to the bus agency in St. George, South Carolina, which was about 100 yards from where the light came on. When Bussey got out and checked the transmission he found the dust pan to be covered with oil and that the oil plug had come out. He thereupon telephoned Shipman, Sr., in Augusta to apprize him of the situation and to ask for advice. Shipman said that he would have C. A. Clifford, the mechanic, call him back. Clifford did so shortly later and told Bussey to add enough oil to fill the crankcase and to check the engine to see if it was working properly. Bussey followed these instructions and then proceeded to drive to Augusta. According to Bussey, the red light did not come on again and the engine appeared to operate in a normal condition. Clifford was on the scene when Bussey arrived in Augusta. He asked Bussey if the bus operated satisfactorily and Bussey said that it had. Clifford testified that "I checked the level of the oil and the transmission, and it was full." Clifford thereupon tightened the oil plug and told Bussey's relief driver to take the bus on to Atlanta. At this point it should be noted that each bus has a "shop card" which stays with it at all times. Bussey noted on this card that he had put in 9 quarts of oil at St. George. Before the bus left the Augusta station on its way to Atlanta, Clifford further noted on the shop card, "Change oil in the transmission on this bus, it does not have the same oil that we use." The driver assigned to drive the bus from Augusta to Atlanta was J. C. Young. Called as a Respondent's witness, Young testified that after having driven a few hundred feet from the Augusta station he had trouble shifting from one gear to another and that he heard some noise in the transmission. When asked why he did not turn around at this point, Young testified, "If Mr. Clifford hadn't been around and checked the oil, and him being the shop foreman, I would have, but he had already advised me to take it onto Atlanta." Clifford did proceed to Atlanta and upon arrival noted on the shop card: "I don't believe this transmission will stay in bus much longer. Try it out." As indicated hereinafter, the transmission was replaced a few days later. C. Additional Facts; Conclusions as to Bussey's Discharge Wilmer S. Dixon, the supervisor of drivers at the Atlanta station, testified that it was he who recommended that Bussey be discharged. Dixon's reasons for reaching a decision to make this recommendation were given by him as follows: Dixon said that he received the reports of August 29 and October 31 concerning Bussey which Shipman, Sr., had sent to the Atlanta office. He testified that after receiving the latter report he checked Bussey's file and ascertained "that he had one account of speeding on the New Jersey turnpike. 116 Dixon said that he thereupon decided to check Bussey's record with the Georgia State Highway Patrol. He testified that he made this check about 2 or 4 days after receipt of Shipman's October 31 report. It is undisputed that the records of the Highway Patrol reflected that Bussey had received fines varying from $10 to $25 for four speeding offenses, these having occurred one each in 1960, 1965, 1966 and the latest in July 1967. In addition, the records reflected that his chauffeur's license from the State of Georgia was suspended for 1 month beginning on January 17, 1966. Bussey admittedly drove a bus for the Respondent during this period without reporting the suspension to the Company.' Dixon testified that on November 13 or 14 he was advised by E. C. Shipman, the foreman of the repair and parts shop in Atlanta, that the transmission in Bus 196 had been burned up and that Bussey had driven it without oil.' Dixon testified that as soon as he received this report he took Bussey's file to the office and "discussed everything" with President A C. Shipman. He said, "I recommend discharging him, which Mr. Shipman okayed it." While still in the office of the president, Dixon telephoned Shipman, Sr., in Augusta and instructed him that Bussey be discharged. I turn now to my conclusions. Considering first the matter of company knowledge, it has heretofore been noted that there is an absence of direct evidence to show that the Company was aware of Bussey's signing a union card or that he espoused the Union's cause to other employees. However, there is evidence which establishes, as I find, that Respondent in fact knew or at least suspected that Bussey was a pro-union adherent. This is shown by (1) the statement by Shipman, Sr., to Bussey on August 1, in the context of the entire conversation, that he wished Bussey would change his mind, and (2) the statement of Shipman, Sr., on August 3, the day of the election, that he wished Bussey and other employees would have spoken to his brother in Atlanta before "taking a step as you are taking today." Further indicative of Respondent's knowledge or suspicion that Bussey testified that this occurred in 1962 and that he was questioned about it at the time. 'Although Bussey retained a South Carolina driver's license at this time, quite obviously this would not eliminate the requirement that he also have a Georgia chauffeur's license while driving a bus in Georgia. E. C. Shipman (who did not testify at the hearing) is the son of President A C. Shipman SOUTHEASTERN STAGES, INC. 589 Bussey was a pro-union adherent was Shipman, Sr.'s statement to Bussey on August 1 that he would have to be a perfect driver if the Union won the election and Shipman's threat to Brumbeloe shortly after the election that he was going to "get Bussey." Upon the entire record, I am persuaded and find that Respondent gave meaning to its threat to "get Bussey" by discharging him and that this action was taken for the purpose of discouraging further union activity and membership among its employees, In reaching this conclusion, I first of all think it more than coincidence that Shipman, Sr., would take it upon himself to conduct a personal check of Bussey's driving on August 29 and again on October 31. Aside from any checks made by company personnel, Respondent has a policy of checking its drivers through an outside agency which employs its own checkers. It appears that this is its normal and usual practice when making any such checks.' Although Shipman, Sr., testified that he also checked drivers as to their method of driving, he testified that he did this only on those occasions "just when its my convenience, and I think a driver - I get any report a driver driving, anything other than careful. I make a check on him " (Emphasis supplied.) Significantly, Smith did not give any such reason for checking Bussey within 3 weeks after the election, nor did he offer any other explanation therefor. Further, in view of the unusual precautions which Shipman, Sr., took in checking Bussey for the second time on October 31, the evidence strongly suggests that he was indeed attempting to build up a record against this employee. As Respondent witness Clifford testified, Shipman, who was not familiar with driving a truck, had him (Clifford) drive the truck to follow Bussey in order to avoid detection. From Clifford's testimony it is clear that this was a most unusual procedure.10 Upon receiving the reports concerning Bussey from Shipman, Sr., Dixon went to the Georgia State Patrol where he was furnished with Bussey's record of traffic violations." Although Bussey was not discharged immediately upon receipt of this information, Dixon's letter to Bussey asserts that this was a factor in his discharge. The most serious infraction by Bussey was his failure to report to the Respondent that his Georgia chauffeur's license was suspended for 1 month in January 1966. However, Bussey was not the only driver who was guilty of this infraction, for subsequent to his check on Bussey, Dixon wrote to the Georgia State Patrol and asked for the traffic reports of Respondent's other drivers. He was then apprized that two other drivers had driven while their Georgia chauffeur's license were under suspension. These' employees were not terminated, although Dixon said that he issued each a letter of warning.' z As to various other traffic violations, such as speeding, Dixon conceded that "numerous" other Respondent drivers received tickets or summons for such offenses. While testifying that "their record wasn't nothing like Bussey's record" the Respondent offered no documentary evidence, as it did in the case of Bussey, to 'As Dixon testified, "As far as the checker , I know the man that is head of the [outside] company . I call the Company and tell them to put a checker on a certain bus leaving Atlanta, and he may go to Charleston. Actually, I don't know who the driver is or anything about him." "When asked if there was any particular reason why he checked Bussey on October 31, Shipman, Sr , replied, "No, sir, no other than a routine check." Clearly, the circumstances related above reflect that was not just a "routine check." Further, I think it strange that Shipman, Sr., did not warn or talk to Bussey about the deficiencies noted in his August 29 report. substantiate this testimony. In the absence of such evidence, which surely was available to the Respondent, there is no real basis for affording a comparison of Bussey's record with that of Respondent's other drivers. Accordingly, I am constrained to give little weight to Dixon's conclusionary testimony as aforesaid. From the testimony of Dixon as previously related, it is clear that Respondent utilized the transmission incident as the asserted basis for the discharge of Bussey. Thus, Dixon testified that he initiated steps to discharge Bussey when advised by Edwin Shipman, the shop foreman, that the transmission in the bus driven by Bussey had been burned up and that Bussey "ran it without oil" Upon consideration of the precipitous manner in which Respondent thus discharged Bussey, I am convinced that this incident was in fact utilized as a pretext to get rid of Bussey, but was not the true motivation therefor. As to my basis for this conclusion, some further facts are here in order. It is undisputed that the actual work of replacing the transmission in the bus was performed by E. P. Milligan, the assistant shop foreman in Atlanta. Milligan testified that the damage to the transmission had been caused from a lack of oil. He said that he checked the transmission and ascertained the damage only because he noted the notation of driver Young on the bus shop card to the effect that something was wrong with the transmission. Milligan did not talk to Bussey or Young but merely reported to Shop Foreman E. C. Shipman that the transmission was burned out due to lack of oil. Significantly, E. C. Shipman was not called upon to testify by the Respondent, the record consisting only of the aforementioned testimony by Dixon as to the report he received from E. C. Shipman which led to his decision to terminate Bussey. I do not doubt but that E. C. Shipman ascertained from the shop card that Bussey added 12 quarts of oil.' 3 This, however, was hardly a basis for concluding that Bussey was responsible for the damage to the transmission. In fact, other than the notation on the shop card, the record does not reflect that Respondent made any investigation to determine the cause of the damage or who in fact was responsible therefor. I do note, however, that Respondent asserts in its brief that E. C. Shipman checked with Clifford in Augusta concerning the matter and in so doing points to the following testimony of Clifford: "As previously shown, the August 29 report was in the form of a memorandum whereas the October 31 report was in the form of a letter to A C. Shipman from Shipman , Sr When asked to explain the different nature of these reports, Shipman, Sr , testified, "Well, I think the reason is there, anything minor I just drop a note taken from him, put it in his file, but if it's a serious nature, then I go into it further, you know." "These employees were Harvey Smith, Jr., and Bobby Holmes. After receiving the warnings, these employees made a further check with the Georgia State Patrol. Smith subsequently furnished Dixon with a letter from the patrol reflecting that he had been suspended for 3 days rather than for 2 months Holmes later furnished Dixon with a letter from the patrol reflecting that the revocation of his license had been m error. Nevertheless, it is clear that Respondent's action in warning these employees was taken on the information initially furnished it by the Georgia State Patrol and prior to the corrections with which it was subsequently furnished Respondent also points out that it knew Smith to be active m the Union but that it did not discharge him for this offense However, it is well settled that the retention of some union adherents does not exculpate it for discrimination against others. N.L.R.B. v W C. Nabors Company, 196 F 2d 272, 276 (C.A. 5). "Milligan testified that E C Shipman was present when he made a test to determine whether the oil light was operative after the new transmission was installed. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Mr. Clifford, after November 12th, did you have an occasion to again talk to Mr. Bussey about this transmission incident? A. Yes. Mr. Shipman called me and/or told me that he wanted me to ask Bussey how far he drove that bus after that red light came on. Q. When was this, do you recall? A. Well, I went over there, it was either the first or second day after this occurred, I went over to the station and saw Mr. Bussey over there. It was late in the evening, and I just asked him, and he says, you know, how far he drove after the light came on? He said, well, I was coming into St. George and as I approached the traffic light, said, I got a green light and the light came on and I pushed it out of gear and coasted to the station, which was a distance of about the length of a football field; oh, about a hundred yards However, from the above testimony, including that which preceded it, I am not at all sure whether Clifford was referring to E. C. Shipman or to his immediate superior in Augusta, Shipman, Sr.14 As indicated, E. C. Shipman did not testify. But assuming arguendo that Clifford was in fact referring to E. C. Shipman in his above testimony, Clifford did not say that he subsequently conveyed the result of this discussion to E. C. Shipman. Moreover, even if he did, there is nothing he learned from Bussey in the purported conversation that would reasonably reflect that Bussey was negligent or that he drove the bus at any length without oil. Indeed, it was driver Young who relieved Bussey at Augusta and noted on the shop card that there was some trouble with the transmission. If Respondent was truly interested in fixing the responsibility, why then did it not check with Young? Further, Young testified that he had trouble shifting gears within a block of leaving the Augusta terminal on his way to Atlanta, yet he did not turn back. From what the record discloses, I think it reasonable to believe that Young was more responsible for any negligible damage to the transmission than Bussey. In short, and in view of all the foregoing, I am convinced and find that Respondent, without having conducted any investigation as to the responsiblity (or lack thereof) for the damage to the transmission, seized upon this incident to rid itself of Bussey When this is coupled with Shipman, Sr.'s threat that the employees would have to be "perfect drivers" if the Union won the election, his threat that he intended to get rid of Bussey, and the heretofore described unusual circumstances of his trailing Bussey following the election, it becomes further evident, and I find, that Respondent's discharge of Bussey was motivated principally by his known or suspected union activity and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.15 D. The Discharge of Paul Hammock Paul Hammock was employed as a bus driver out of the Augusta terminal from August 6, 1943, to April 27, 1968. His discharge by the Respondent on the latter date is alleged to have been in violation of Section 8(a)(3) of "Bussey testified that he did not have any recollection of any such discussion with Clifford. "The more existence of a lawful cause will not justify a discharge if the motivating, dominant, or substantial reason behind the discharge is a discriminatory one. N L.R B V. Longhorn Transfer Service, Inc, 346 F 2d 1003, 1006 (C.A 5); N.L.K.B v. Symons Mfg., Co., 328 F 2d 835 (C.A. 7), N L R.B. v. Lexington Chair Co., 361 F 2d 283, 295 (C.A. 6). the Act. Hammock signed a union authorization card and spoke to other drivers in favor of the Union during the organizational campaign. He testified that he had a conversation with Shipman, Sr. concerning the Union several weeks before the election which went as follows. Well, Mr. Shipman asked me about the Union; what I thought of it? And I just told him we needed more pension money. We needed a better pension plan. We needed' more fringe beneifts . . . . He just asked how I felt about it. I don't remember my answer I gave him. I gave him something, I couldn't say exactly what it was. Hammock impressed me as an honest witness. Although Shipman, Sr., testified that he never asked Hammock how he felt about the Union, I credit Hammock's testimony as set forth above. J. W. Hughes is chairman of the board of directors of the Respondent Company. Although Hughes lives in Atlanta, it is undisputed that about a week or two before the election he came to Augusta at which time he had a talk with Hammock. Hammock testified that on this occasion be was at home when he received a telephone call in the morning from Hughes asking him to come down to the garage. Hammock said that he came down in the early part of the afternoon, that Hughes then called him over to the middle of the garage outside the presence of other employees, and that the following conversation took place. He just asked me if I was going along with the company on this union. I said that's up to me, but I think we needed better pension; we needed more fringe benefits, and we have got two supervisors we don't need . He told me that they were working on a pension plan and had been working on it for several months, but other than that, that's about what it amounted to. Hughes testified that the above conversation began when Hammock came up to him in the garage and said, "You're not down here checking up on me; you know damn well I'm for the Company." Hughes said he then asked Hammock, "Paul, what's wrong. As I understand it a lot of these boys are talking union. I said, what's wrong with Southeastern Stages? I'd like to know. If we are not operating as we should and treating our employees like we should, we'd like, to know what the complaint would be." Hughes said that Hammock then raised complaints about the Company's retirement plan and that he also complained about Supervisor Dixon. I credit Hammock's version of this conversation. Conceding that he telephoned Hammock at home on this occasion, Hughes testified that he did so "more or less to pass the time of day with him." Although first also conceding that he asked Hammock to come down, he then changed this by stating that Hammock asked where he was calling from and then said that he would be right down. I have no hesitation in crediting Hammock that he did not volunteer to come down, but that he was asked to do so by Hughes. Aside from my observation of the witnesses, I can hardly believe that the chairman of the board of directors would come from Atlanta to Augusta a week before the election and go to the bother of calling an employee at home just to pass the time of day. Aside from an accident which occurred on April 22, 1967, which Respondent asserts was the reason for his discharge, Hammock's record while employed with the Respondent was as follows: He was suspended for 1 week in April 1960, this due to an accident in which he was involved. Also because of an accident, he was suspended again for 2 days in October 1960. In October 1963, he SOUTHEASTERN STAGES, INC. 591 was suspended for 3 weeks for drinking In September 1967, Hammock received a verbal warning from Shipman, Sr.. for violating a company rule which prohibits drivers from smoking while driving. On March 3, 1968, Respondent received a report from an outside checking agency that Hammock had again violated the no smoking rule. However, he did not receive any reprimand on this latter occasion. Notwithstanding the foregoing, however, it is noteworthy that several days after his discharge Hammock received a safety award of $37.50 (as alternative for a U.S. Savings bond) and also an 18-year safety pin. While the record is not exactly clear as to the criteria for the safety award, it appears that this is awarded at yearly intervals to drivers who are not involved in chargeable accidents during the year. It is undisputed that Hammock's last award was earned prior to his discharge and was due him on April 10, 1958. As to the 18-year safety pin, this is given to drivers who have driven a total of 18 years without a chargeable accident, but this need not be for -18 consecutive years. Concerning Hammock's 24 years of employment up to the time of the accident which occurred on April 22, 1967, Respondent's view of his record, as stated in its brief, is that "Such a record is not too bad, but neither is it very outstanding." There is no dispute as to the accident in which Hammock became involved on April 22, 1968, the facts concerning which were conceded by Hammock. At the time in question, Hammock was driving a bus behind an automobile driven by a lady driver when a school bus approached from the opposite direction. The school bus stopped and so did the lady driver. Hammock, however, was unable to stop his bus in time and collided with the rear of the passenger car driven by the lady ahead of him. Although Hammock claimed that the school bus stopped suddenly and without warning, it is obvious that Hammock either followed the passenger vehicle too closely and/or did not have his bus under control, else he would not have struck the vehicle ahead of him. And while Hammock testified that there was very little damage, he conceded that there was "a dent in her bumper and a dent in my bumper." Hammock reported the above accident in accordance with company rules. By letter dated April 24, 1968, an attorney representing the lady driver advised the Respondent that he was being retained by her and would file a claim for personal injury and property damage. On the evening after the accident, April 22, Hammock received a telephone call from Shipman, Sr., advising that, pursuant to instructions from Dixon, he was not to go out on another run until further word was received from the Atlanta office. On April 27, 1968, Hammock was called to the office in Augusta and was advised by Shipman, Sr., that he was being terminated. At this time Shipman, Sr., showed him a letter he received from A. C. Shipman which stated that his record had been reviewed and that he was to be discharged because of the April 22 accident which involved a school bus.16 - Dixon, who was responsible for the decision to terminate Hammock, testified that this action was taken because the Company regarded any chargeable accidents involving a school bus as a very serious offense. Concerning the accident of April 22, Dixon testified, "if "This letter contained instructions that Hammock, be discharged and stated, inter alia. "His record shows that he has had other rear-end collisions, but this recent rear-end collision is particularly bad on account of the involvement." the car hadn't been there it could have been a kid crossing the road." Thus the facts, as I find them, with respect to the entire circumstances of Hammock's discharge. While the circumstances here might indicate that Respondent acted unreasonably or unfairly in terminating Hammock, an employee who had been with the Company for over 24 years, I am unable to conclude on the basis of the evidence before me that this action was prompted by Hammock's union activities. Although Hammock signed a union card and spoke in favor of the union campaign, there is no evidence whatsoever that Respondent had knowledge of any such activity. Even if it be assumed that Respondent suspected him of being a prounion adherent," the fact remains that Hammock's discharge did not occur until approximately 9 months after the representation election. There is no claim that any union activity was taking place at this time and I do not believe that the record warrants a finding that Respondent harbored any animosity toward this employee because of any union activity for this length of time. In addition, and while I have discredited certain testimony of Respondent witnesses, I am unable to conclude that Respondent does not view an accident involving a school bus (where as here, its driver was quite apparently at fault) as a major offense 11 Accordingly, and while the case is not above suspicion, I conclude and find that the General Counsel has not sustained his burden of proof that Hammock was also a victim of discrimination. It is therefore recomiisended that the 8(a)(1) and (3) allegation as to this employee be dismissed." E. Interference, Restraint, and Coercion In addition to contemporaneous conduct which occurred in connection with the discharges as heretofore described, the evidence discloses the following: In about the first part of January 1967, Dixon asked driver Charles Brumbeloe if anyone had been talking union to him. When Brumbeloe replied in the affirmative, Dixon asked him who it was. Brumbeloe answered that it had been some Greyhound drivers. Dixon then asked if it had been any of Respondent's employees and Brumbeloe responded that they were not involved.'" Robert C. Shelton, employed as a driver with the Respondent from November 1965 to September 1967, testified that about 5 weeks before the election C. A. Clifford asked him what he thought about the Union. Shelton said he told Clifford that this was a matter for each individual to decide. According to Shelton, Clifford thereupon stated that he was against the Union and could "This could be arguable from the fact that Chairman Hughes went to the length of calling Hammock to the station to discuss the Union with him a week or two before the election. On the other hand, Hammock testified that he did not tell Hughes or any other supervisor that he was "for the union." "There is no evidence that other drivers were involved in similar accidents and yet were retained. "I do not deem it necessary to discuss testimony relative to Hammock's withdrawing a charge as a condition to receiving his pension The General Counsel does not allege that Respondent thereby violated Sec 8(a)(4) of the Act. Further, since all this occurred after Hammock's discharge, this testimony does not shed any light as to the motivation for his termination ''The credited testimony of Brumbeloe. Dixon testified merely that he could not recall having a discussion with Brumbeloe in January 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not see any reason why the drivers would need a union.', As noted earlier, Respondent takes the position that Shelton is not a supervisor within the meaning of the Act. Although Shelton is the only mechanic employed at Respondent's location, it is undisputed that he takes over the duties of Shipman, Sr., whenever the latter is absent. Clifford testified without contradiction that he has no authority to hire, discharge or discipline employees or to handle the grievances of drivers. However, the record reflects that in the absence of Shipman, Sr., Clifford has authority to grant employees time off and to, procure replacement drivers. In view of such authority, and particularly in view of the fact that Clifford is the only person in charge when Shipman is gone, I find that Clifford is a supervisor within the meaning of Section 2(11) of the Act. 22 Shelton also testified that about 4-6 weeks prior to the election Julian Strickland, Respondent's station manager in Athens, Georgia, asked him what he thought about the Union. Testifying that he and Shelton were friends since World War II, Strickland said that he probably did ask Shelton how he felt about the Union. Upon the entire record in this case, and in view of the findings of fact heretofore made, I find and conclude that Respondent in violation of Section 8(a)(1) of the Act interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by: (1) the conduct of Shipman, Sr., in telling Bussey that the employees would have to be "perfect drivers" if the Union won the election; (2) the conduct of Shipman, Sr., in threatening to "get" Brumbeloe• and Bussey, this in the context of the entire conversation which Shipman, Sr., had with Brumbeloe; and (3) the conduct of supervisors, Shipman, Sr., Wilmer Dixon, J. W. Hughes, C. A. Clifford, and Julian Strickland23 in interrogating employees as to their union sympathies and desires.24 "Clifford conceded discussing the Union with Shelton but said that he never asked Shelton whether he was for or against the Union. Otherwise he did not elaborate I credit the testimony of Shelton as set forth above. '=Inasmuch as 22 drivers are employed out of the Augusta terminal, I find it difficult to believe that Respondent would leave someone without more than routine authority to act in the absence of Shipman, Sr Although not in itself of controlling weight, I think it of some significance that Shipman, Sr., requested Clifford to accompany him when he trailed the bus driven by Bussey on October 31, 1967 Clifford also signed the letter of October 31 reporting this matter to President A. C. Shipman. "Were this an isolated case of interrogation of Respondent 's employees, I would not view Strickland's conduct in itself as violative of the Act. 24On August 28, 1967, the Regional Director approved a Settlement Agreement signed by the parties and on November 3, 1967, notified Respondent that the case was closed upon compliance . On June 11, 1968, the Regional Director notified Respondent that his approval of the settlement agreement was withdrawn . The Respondent recognizes that the matters covered by the settlement agreement are admissable as background evidence in support of the alleged 8(a)(3) violations . However, pointing out (and correctly so) that the independent violations of Sec 8(a)(1) alleged in the instant complaint are the same as those covered in the settlement agreement, Respondent contends that the settlement agreement bars the litigation of presettlement conduct and that there is no justification for further remedial relief as to the said 8(a)(l) allegations . I would agree with Respondent that no further relief would be in order if there proved to be no merit to any of the 8(a)(3) violations. However, since there is merit to Bussey's case and since his discriminatory discharge arose out of the same situation in which the presettlement 8(a)(l) violations occurred, I think further 8(a)(l) relief is warranted. Moreover, the discrimination against Bussey was violative of Sec 8(a)(l) as well as Sec. 8(a)(3) of the Act. Cf Northern California District Council, et at (Joseph's Landscaping Company), 154 NLRB, 1384 fn 1, and Mohasco Industries, Inc. (Laurens Park Mill), 172 NLRB No 237, fn. 1. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with 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 of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it will recommend that Respondent cease and desist therefrom and take certain affirmative action- designed to effectuate the policies of the Act. It will be recommended that Respondent offer to Maurice N. Bussey immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority and other rights and privileges, and make him whole for any loss 'of earnings he may have suffered by reason of the unlawful discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned, absent said discrimination , from the date of his discharge to the date of an offer of reinstatement, less his net earnings 'during said period . Backpay shall be computed in the manner prescribed by the Board in F. W Woolworth Co., 90 NLRB 289, and with interest thereon as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Respondent 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. By discharging Maurice N. Bussey, thereby discriminating in regard to his hire and tenure of employment, in order to discourage membership in and activity on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By threatening employees with reprisals because of their union activities and by coercively interrogating them as to their union sympathies and desires, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Respondent's discharge of Paul Hammock was not in violation of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, it is recommended that Respondent Southeastern Stages, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing its employees by unlawfully interrogating them with respect t SOUTHEASTERN STAGES, to their union sympathies and desires and threatening them with reprisals because of their union activities. (b) Discouraging membership in Union Local Division 1493, Amalgamated Transit Union, AFL-CIO-CLC, or any other labor organization, by discharging employees or discriminating against them in any other manner in regard to their hire or tenure of. employment or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find necessary to effectuate the policies of the Act: (a) Offer to Maurice N. Bussey immediate and full reinstatement to this former or substantially equivalent employment and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Maurice N. Bussey if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain any backpay due under the terms of this Recommended Order. (d) Post at its terminals in Augusta, Georgia, and Atlanta, Georgia, copies of the attached notice marked "Appendix."25 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by a representative of the Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days of receipt of this Decision, what steps the Respondent has taken to comply therewith 26 (f) It is recommended that the complaint's allegation charging Respondent with having committed an unfair "In the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A Recommended Order Of A Trial Examiner" in the notice In the further event that the Board's Order is 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." 'In the event that this Recommended Order is 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." INC. 593 labor practice by its termination of Paul Hammock be dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT ask our employees any questions about their union sympathies or activities. WE WILL NOT threaten to discharge any employee because he has engaged in union activity. WE WILL NOT tell our employees that they will have to be perfect employees in the event a labor organization wins an election. WE WILL NOT discourage membership in or activities on behalf of Union Local Division 1493, Amalgamated Transit Union, AFL-CIO-CLC, or any other labor organization, by discriminating in regard to the hire and tenure of employment of any of our employees because of their concerted or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, or to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer immediate and full reinstatement to Maurice N. Bussey to his former or substantially equivalent position, without prejudice to his 'seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him. SOUTHEASTERN STAGES, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5741.