Queen City Coach Co.

QUEEN CITY COACH CO. 275 Queen City Coach Company and Amalgamated Transit Union, Local No. 1531. Case 11-CA-3455 June 25, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 8, 1968, Trial Examiner Lowell Goer- lich issued his Decision in this proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recom- mending that the complaint be dismissed in its en- tirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed ex- ceptions 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 Na- tional 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 recommenda- tions of the Trial Examiner. ORDER merce within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed timely answer denying that it had engaged in or was engaging in the unfair labor practices al- leged. The case came on for hearing on February 26 and 27, 1968, at Asheville, North Carolina. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been carefully considered by the Trial Examiner. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a North Carolina corporation engaged in the transportation of passengers by motor vehicle. It operates routes directly across State lines and maintains terminal facilities in the States of North Carolina, South Carolina, Georgia, and Tennessee. Respondent's Asheville, North Carolina, terminal is the only one involved in this proceeding. During the past 12 months, which period of time is representative of all times material herein, Respondent received gross revenues from transportation of passengers in excess of $250,000. The Trial Examiner finds that, at all times materi- al herein , the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 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 the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: On a charge filed on October 9, 1967, by Amalgamated Transit Union, Local No. 1531, hereinafter called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board by the Acting Regional Director, Re- gion 11 , on November 29, 1967, issued a complaint and notice of hearing in which Queen City Coach Company was named as the Respondent . It was al- leged that the Respondent had engaged in and was engaging in unfair labor practices affecting com- 172 NLRB No. 29 II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein , a labor organization within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES The General Counsel alleges that on or about August 29, 1967, and continuing to date, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees at its Asheville, North Carolina, terminal in the exercise of rights guaran- teed in Section 7 of the Act ( 1) by informing its employees that "their possession of Union cards was holding them back" and (2) by discharging Thomas G. Edmunds on September 29, 1967, because said employee joined or assisted the Union or engaged in other union or concerted activities for the purpose of collective bargaining or other mutual aid or protection. The sole testimony adduced by the General Counsel to support the first allegation was the 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of employee Arthur Dwayne Mundy. Mundy testified, "Tom [Edmunds] was running a little late on schedule and Mr. Dale [an admitted' supervisor ] said, well, the union card in his back pocket is holding him back." After a submission of all the evidence the Respondent moved to dismiss the complaint. The Respondent's motion to dismiss was taken under advisement by the Trial Examiner. Respondent's motion raises the question whether the General Counsel has established a prima facie case support- ing a finding that the Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the com- plaint. In respect to the discharge of Edmunds the General Counsel's case-in-chief revealed that Ed- munds was discharged by Supervisor of Drivers and Equipment Vincent H. Batts on September 29, 1967, because his work had "become unsatisfacto- ry"; that this was the only reason given to Ed- munds;2 that Edmunds first worked for the Respon- dent in the summer of 1952 and became a driver on February 15, 1960, from which job he was discharged ; that at the time of his discharge Ed- munds was an extra board driver;3 that Edmunds' father was a shop foreman for the Respondent; that Edmunds had received no compliments from the Respondent "since 1964"; that Edmunds did not become "active in the union until the fourth elec- tion" in 1966; that Edmunds acted as a union ob- server at elections conducted on August 4, 1966, and October 27, 1966; that on September 19, 1967, Union Vice President R. C. Wallace discussed the "possibility of a recognition strike" with Edmunds; that thereafter Edmunds told around 15 or 20 of the Respondent's drivers' about the possibility of a recognition strike; that although Wallace was called for testimony he did not corroborate Edmunds' testimony; that there was no direct evidence that the Respondent had any knowledge of Edmunds' recognition strike activities; that around September 5, 1967, Edmunds filled in for about 3 weeks on the Asheville to Salisbury run for driver C. J. Woodsy; that Edmunds on cross-examination was unable to identify passengers who traveled with him during this period or to recall whether he had received cash fares from them for which no cash receipts were given ; that in Queen City Coach Company, 159 NLRB 204, the Respondent was found guilty of a violation of Section 8(a)(1) and (3) of the Act; that in Queen City Coach Company, 160 NLRB 216, the Board dismissed an 8(a )( 3) allegation against the Respondent; and that in Smokey Mountain Stages, Inc., 169 NLRB 777, the Respondent Smokey Mountain Stages was found guilty of a violation of Section 8(a)(1) and (3) of the Act which stemmed in part from the misconduct of Vin- cent Batts, the supervisor of drivers and equipment of the Respondent Queen City Coach Company. While the circumstances surrounding the discharge of Edmunds may have been of a suspi- cious nature in view of the Board's findings in Queen City Coach Company, 159 NLRB 204, nevertheless, the Trial Examiner is of the opinion that the General Counsel has not established a prima facie case supporting a violation of the Act in respect to the discharge of Edmunds. See Mallory Capacitor Company, 163 NLRB 383, and 169 NLRB 42; see also also Queen City Coach Com- pany, 160 NLRB 216. As to the alleged unlawful remark of Supervisor Dale, both because of its ambiguous and trivial character, the Trial Examiner is of the opinion that its utterance, under the cir- cumstances as revealed in the record, did not con- situte a violation of Section 8(a)(1) of the Act. Cf. Holmes Foods, Inc., 170 NLRB 376. The Trial Examiner grants the Respondent's motion to dismiss. RECOMMENDED ORDER It is hereby recommended that the Board adopt the order dismissing the complaint in its entirety. ' The Respondent agreed "that for this hearing, it shall be considered that he (Dale] was a supervisor within the meaning of the Act." ' In Queen City Coach Company , 160 NLRB 216, 220 , the Board said, "We cannot infer from the fact that Respondent did not tell White the real reason for his discharge that the reason revealed at the hearing was a pre- text . Supervisor of Drivers Batts testified that , in instances of dismissal for cash-fare irregularities, it is the company policy to tell the employee without more , that the discharge is for unsatisfactory work In such in- stances, he said, 'we do not give them the reasons; we take the position that we don 't do anything to hurt his reputation or blacken his name in any manner; we just tell him he is discharged for unsatisfactory work , and let it go " "'[T]he extra board driver takes cure of the work of a regular driver, when he takes his vacation, or takes extra days off, most of the time charter service work." ' Edmunds testified that there were about " 28 or 29" drivers in the Asheville, North Carolina, terminal.