Queen City Coach Co.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Queen City Coach Company and Amalgamated Transit Union, Local No. 1531. Cases 1 1-CA-2958, 1 1-CA-2999, and 1 1-CA-3041 Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 26, 1968, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision . The Trial Examiner also recom- mended dismissal of certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. 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 the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as herein modified. 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, Queen City Coach Com- pany, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Add the following as paragraph 2(b), the present paragraph 2(b) and those subsequent thereto being consecutively relettered: "(b) Notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROSANNA A. BLAKE, Trial Examiner: Upon a se- ries of charges filed between late January and early June 1966 by the Amalgamated Transit Union, Local No. 1531, the Regional Director for Region 11 issued a number of complaints which were con- solidated for hearing.' The complaintts alleged that Queen City Coach Company had engaged in con- duct which violated Section 8(a)(1) and (3) of the Act and other allegations were added at the hearing without objection. In its answers, Respondent ad- mitted certain allegations in the complaints, such as the commerce allegations, but at all times denied having committed any unfair labor practice. Upon due notice, a hearing was held in Char- lotte, North Carolina, on August 2, 3, and 4, 1966. The General Counsel and the Respondent were represented by counsel and were given full oppor- tunity to present evidence, to examine and cross- examine witnesses, to present oral argument, and to file briefs. Counsel for the General Counsel presented a brief oral argument and later filed a brief. No brief was filed on behalf of the Respon- dent nor did its counsel argue orally. I. THE BUSINESS OF THE RESPONDENT ; THE LABOR ORGANIZATION INVOLVED Queen City Coach Company, usually referred to herein as the Respondent or the Company, is a North Carolina corporation engaged in the trans- portation of passengers by motor vehicle. It operates routes directly across state lines and main- tains terminals in North Carolina, South Carolina, Georgia, and Tennessee . During a typical 12-month period, it received gross revenues from such trans- portation of passengers in excess of $250,000. Upon the foregoing undisputed facts, Respondent admits and I find that it is an employer engaged in commerce withiin the meaning of Section 2(6) and (7) of the Act. Respondent does not deny and I find that Amal- gamated Transit Union , Local No. 1531, referred to herein as the Union , is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A.. Background There was an unsuccessful union campaign among the Company's drivers in 1958 and another , Charges were filed on January 27 , 1966, March 28, 1966, and June 3, 1966 Complaints were issued on March 17, 1966, April 28, 1966, and July 6, 1966 172 NLRB No. 53 QUEEN CITY COACH CO. campaign began in 1963. The Board conducted two elections in 1964 and a third in March 1965, all of which the Union lost . Another union campaign began in the summer or early fall of 1965 and the unfair labor practices alleged herein occurred in connection with the latter campaign. The Board's records disclose that the Union lost the first election in 1964 by a vote of 154 to 52 and the second by a vote of 152 to 40. The Union lost the March 1965 election by a vote of 102 to 79. The Board conducted another election on August 4, 1966, i.e., during the hearing herein , in which the Union was defeated by a vote of 97 to 86. Unless stated otherwise, all events mentioned herein occurred in Charlotte, North Carolina, where the Company has its home office, and the persons involved work out of or have their offices in Charlotte. On some undisclosed date, Queen City and Carolina Scenic, another bus company, merged. L. A. Love has been president of the Company since at least 1958 and was it president at all rele- vant times in 1965-1966 , i.e., up to and including the time of the hearing in August. On Thanksgiving Day 1958, President Love sent word to Charlotte Driver Marshall Robinson that he wanted to talk to Robinson in the office on Monday and that Company Attorney John Ray would also be present. Robinson told Love that he would rather not talk to Ray because he did not want to say something in front of the Company's at- torney that would be used against him (Robinson) later. Love expressed the opinion that it would be "better" if Robinson talked to Ray but, when Robinson asked if he could bring Paul Erwin or Guy Carswell along to represent him, Love said that he would rather not have an "outsider" present. Love then asked if Robinson would come to Love's home, Robinson did so, and Love and Robinson talked in the latter's car for "about an hour or more." Love told Robinson that, if he "went through with this," it would send Jack Love to the penitenti- ary, although President Love did not say what criminal offense Jack Love had committed.' Love asked if Robinson would "get out of it," adding that, if Robinson would get out of it, he could have a job with Queen City as long as Love did. Love also stated that he would give Robinson and another driver "full authority to pull off any man that [they] wanted to help break it up ...." In Robinson's words, "we did" what Love suggested because "We didn't want to hurt Jack Love." Jack Love was superintendent of operations during some period in the 1950's, i.e . he held the position occupied by Supervisor Batts during 1965-1966 Although the record does not show that Jack Love was related to President L A. Love or Vice President Hal Love, he almost certainly was a member of the family As set forth infra, a number of the supervisors in 1965-1966 were related to President Love in some way °1 Lcx•al Ltxlge 1424, 1.A M, AFL-CYO ]Bryan Mfg Co J v N L.R B , 362 U S 411, 416, N.L R.B v Craig- Botecourt Electric Cooperative, 337 F 2d 374 (CA 4) 471 Although Love made the above statements a number of years before the events here in issue, they have been considered as "shedding light" on the Company's actions which the General Counsel contends violated the Act.3 In 1958, as in 1965-1966, Love was president of the Company and must have known its attitude toward collective bargaining , the steps it was willing to take to com- bat the employees' efforts to obtain union represen- tation, and his authority to speak for and authorize action on behalf of the Company is clear and un- disputed. Moreover, there is no claim and no evidence that there had been any change in the Company's attitude toward a union between 1958 and 1965-1966. On the contrary, the facts set forth infra, many of which are based on undenied testimony, establish that the Company's attitude toward a union had not changed and that it was still willing, in 1965-1966, to take illegal action to de- feat it. See Paramount Cap Manufacturing Company v. N.L.R.B., 260 F.2d 109, 113 (C.A. 8). President Love was not a witness and I credit Robinson's undenied testimony. In the fall of 1963, Driver Marion Griffin tried to persuade Driver Sparrell Lowder to sign a union card and to "help get applications from other men." Lowder refused and, after Griffin continued to try to enlist Lowder's support, the latter called Supervisor of Drivers Vincent H. Batts at the Tat- ter's home and told him "what was going on" and the name of the driver who was trying to get Lowder "involved." Batts, who was also supervisor of drivers in 1965-1966, told Lowder he "ap- preciated" the information Lowder supplied.' Thereafter, more drivers tried to interest Lowder in the Union and he kept making reports to Batts "all the way through up until the present time ," i.e., until August 1966. Lowder repeatedly called Batts long distance and gave him such information as who attended meetings, what was being planned, identified the men who were prounion, and where and when meetings would be and were held. On some occasions, Lowder reported on the union ac- tivity to Company Attorney John Ray and Lowder also met Batts for the same purpose both at the Company's offices and at two local motels. Batts explained to Lowder that the information would "help weed out the men that were in it and stop it." Batts also told Lowder that he "would fire [the]-" drivers who favored the Union and made other statements "close to that."5 In 1963 and for sometime thereafter, Lowder thought "the best thing to do" was "to keep the ' Respondent admitted in its answers that Batts is a supervisor within the meaning of Section 2(1 1) of the Act ' The dates of these statements are not established in the record and I as- sume that they were made more than 6 months before the first charge herein was filed and served Accordingly, they are not found to be unfair labor practices but have been considered only as "background " 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union out" but, in his words, he later "began to see that [he] was doing the wrong thing" and "wanted . .. to quit giving information" to the Company but he had "got too far involved" and did not have "guts enough to admit it to anybody." As a result, he kept supplying Batts or Company Attorney Ray with information even after he became a member of the Union and after his name was listed in the ,Union's January 1966 letter as one of the em- ployees in favor of union representation. (See in- fra.) Batts told Lowder that the latter's union mem- bership would "help" him "find out things." Batts also told Lowder that he would be excused from driving in order to attend union meetings and Lowder was paid for the time spent at such meetings, at least if he had to miss work in order to do so. (The drivers are paid on a trip or mileage ba- sis.) One meeting Lowder attended and for which he was paid, apparently, was on March 9, 1966, i.e., within the period covered by the complaints. The above findings are based on Lowder's unde- nied and credited testimony which is corroborated by his telephone bills showing a number of long- distance calls from his home to Batts and one to At- torney Ray in Charlotte.6 In 1963, Supervisor of Drivers Batts asked Driver Marshall Robinson how he felt about the Union. Robinson who, at President Love's request, had helped the Company defeat the Union in 1958, an- swered that he would not say "we need a Union" but that he would "say that we need something." In the same conversation, Batts asked Robinson how the latter's neighbors, J. R. Tarlton and Ralph C. Little, felt about the Union, saying that Robinson would know if those two men "were in it." There is no evidence that Robinson answered Batts' question about Tarlton and Ralph Little. In 1964, Chief Dispatcher Coy Little, who is Pre- sident Love's nephew, asked Robinson if, when the Board conducted a mail election, Robinson would "mark" his ballot "in front of" President Love. Robinson explained that he would be away on the date of the election and Little then asked Robinson to let the latter's wife take his ballot "up" and mark it for him. The above findings are based on Robinson's un- denied and credited testimony. B. The Supervisory Status of the Dispatcher As stated, supra, L. A. Love is president of the Company. Hal Love is its vice president and general manager; S. J. Little is assistant treasurer; and Vincent H. Batts is supervisor of drivers, equip- ment, and division manager. Coy Little is the chief dispatcher at the Charlotte terminal and I find that he is a supervisor within the meaning of Section " Lowder testified without denial that if he called Charlotte about his driving assignments , he called the dispatcher at a different number Attor- ney Ray described himself as being employed full time by Respondent and 2(1 1) of the Act. Both Littles are President Love's nephews. Herman Jones , Robert Huggins , and J . C. Kiser are dispatchers at the Charlotte terminal. Marvin Little , Coy Little 's brother, is the terminal manager at Fayetteville where Rufus Horne is a dispatcher and Andrew Barkley is shop foreman. J. M. Gainey is the dispatcher and probably the terminal manager at Myrtle Beach , South Carolina. ( See in- fra.) The only real supervisory issue is whether the dispatchers are supervisors within the meaning of Section 2(1 1) of the Act. In a Decision and Direction of Election, dated June 23, 1966, the Regional Director for Region 1 1 found that the dispatchers are supervisors within the meaning of Section 2(1 1) of the Act. Queen City Coach Company , Case I1-RC-2376 . His con- clusion was based on facts contained in the testimony of Supervisor Batts. Batts' testimony at the hearing in the above case revealed that : ( 1) dispatchers are paid a salary, un- like drivers who are paid on a trip or mileage basis, and continue on salary even when they do some driving which most of them do only rarely; some dispatchers have done no driving , at least in recent years; ( 2) all dispatchers have "essentially the same degree of authority and responsibility " although there may be some variation due to the location and type of terminal, the volume of business, and the presence of higher company officials either in or near the terminal ; ( 3) the dispatchers are responsible for forecasting the need for drivers and equipment, they call in drivers to meet anticipated needs, and release and send drivers home if they are not needed; (4) dispatchers, on their own authority, may dispatch buses in emergency situa- tions and may arrange for securing the equipment and drivers required to meet emergencies ; ( 5) they assign drivers to chartered buses if the charter party does not request a particular driver ; ( 6) drivers ob- tain permission from dispatchers to be "off' and submit to the dispatchers their requests for vacation periods ; ( 7) if a driver misses a "run," the dispatcher moves his name to the bottom of the availability "board" and , if a driver misses a number of " runs," the dispatcher sends a report to Supervisor of Drivers Batts "for appropriate ac- tion"; (8 ) if a driver refuses a run, the dispatcher has authority to withhold further assignments, to order him to report to Batts for "discipline," and the driver is given no more assignments until he has received " clearance " from Batts ; ( 9) three of four recent cases of driver discipline were initiated by dispatcher reports to Batts, Batts thereafter discussed the reports with the dispatchers, inter- viewed the drivers , and in each case , the decision to he has his office in the same area of the Company's office building in which President Love and other company officials have their offices QUEEN CITY COACH CO. 473 discharge the driver was based in part on the dispatcher's report; (10) dispatchers have authority to criticize drivers, to tell them they are not doing their work properly, and the dispatchers are required to report such matters to Batts; (11) dispatchers may keep drivers from driving if they believe the latter are unfit to drive for any reason, they are required to send drivers home if the latter are not in proper uniforms, and may send drivers home to put on proper uniforms; (12) it is the duty of dispatchers to see that a driver does not go on a run which will mean that he will drive for a longer period than that permitted by Interstate Commerce Commission regulations; (13) dispatchers arrange bus schedules and arrange for mechanical help or for substitute buses in the case of breakdowns; (14 ) dispatchers' decisions with respect to whether a bus will be kept in service usually based in part on shop reports are final insofar as the drivers are con- cerned, i.e., a driver must follow a dispatcher's or- ders even if the driver expresses the opinion that a bus is unsafe; and (15) in every case the driver is expected to do what the dispatcher tells him. It was upon these facts, disclosed by the testimony of Supervisor Batts, that the Regional Director concluded that "the dispatchers have authority to assign, transfer, suspend and discipline drivers, that they responsibly direct them in a manner requiring the use of independent judgment" and, therefore, are supervisors within the meaning of Section 2(11) of the Act. Even if the above findings are not binding upon the Trial Examiner in the instant case, the record herein warrants the same conclusion. It is undisputed that the dispatchers do not have the authority to hire, discharge , permanently suspend drivers, or to change their rates of pay. However, it is also undisputed that, if a dispatcher concludes that a driver is not "fit" to drive for any reason, he may order him not to drive and replace him with another driver selected by the dispatcher. Dispatchers make reports to Superintendent of Drivers Batts about drivers who, the dispatchers be- lieve , have violated some company rule or have acted in some unsatisfactory manner and their re- ports are considered by Batts in determining what, if any, disciplinary action should be taken. In addition, the undisputed testimony discloses that one of the dispatchers' duties is "to see that there is somebody" at the terminal "to make a run when it is supposed to be made." Another of their duties is to "see that drivers are on time" to take their buses out and, if a driver reports late or does not report at all, the dispatcher calls another driver to take the bus out. Cf. the undisputed testimony that, on the two occasions when Driver Rayford Dale overslept, Dispatcher Huggins sent Dale's bus to Belmont Crossroads by a driver who had completed his regular schedule. (See infra.) Although dispatchers apparently do not have the authority to make permanent changes in drivers' schedules, they do change assignments on occasion, at least of the drivers "working the board" who ap- pear to be "extra" drivers or drivers without regu- larly assigned schedules. Driver Floyd Sessoms testified without denial that the Fayetteville dispatcher "decides" which drivers are to be as- signed to charter trips absent a request for a par- ticular driver. Sessoms also testified without denial that, if a driver asks "to be off," the Fayetteville dispatcher sometimes does and sometimes does not consult Division Manager Marvin Little before granting or denying the request. Driver Delmar "Bill" Smith described the dispatcher as the "one" he reports to and, in Smith's words, he is "over" me. Driver Ralph Little testified without denial that the drivers were told at drivers' meetings, "if the dispatcher tells you anything to honor it," that the drivers are "supposed to follow the dispatcher's in- structions" about such things as "going out, waiting on connections, or if you want a day off." Accord- ing to Driver Little's undisputed testimony, the above-quoted statements were made by President Love, or Vice President Love, or Supervisor of Drivers Batts. Also undenied is Driver Little's testimony that he has asked a dispatcher for time off and the latter sometimes granted his request and sometimes did not grant it and that the dispatchers "have acted on their own to me." Little further testified without denial that a dispatcher assigned him to a schedule other than his regular one for a week in July 1966 because there was no one else to drive. In Little's words, in the case of a disagree- ment between a dispatcher and a driver, "The driver would lose, the dispatcher would win." Although Little admitted that he knew of no actual case, he quoted Supervisor of Drivers Batts as say- ing "if the dispatcher tells you to do anything to go ahead and do it, if it is wrong ... when you get back, come and see [me]." Dispatcher Rayford Dale testified without denial that instructions had been given at drivers' meetings that Charlotte Dispatcher Herman Jones was to "be honored" the same as Chief Dispatcher Coy Little or Dispatcher Robert Huggins. Dale also said that he believed that he had read a statement to the same effect on the bulletin board at or about the time of the merger between Queen City and Carolina Scenic. Respondent did not deny that such instructions had been given and that such a notice had been posted on the bulletin board. Nor did it claim that the instructions had been rescinded or modified. Dale testified that he felt as if he "worked[ed] for Dispatcher Jones" and that Jones was "over us, me." In Driver Lowder's words, he works "for" Jones. Dispatcher Jones, a witness for Respondent, stated that the "only time" he "lets" drivers have time off on his own initiative is when he is on duty by himself. Jones described his responsibility as fol- lows: when a driver is late, he tries to find out why, talks to the driver to "see what he has got to say," 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and makes reports, both orally and in writing, to Supervisor Batts and Chief Dispatcher Little. Dispatcher Huggins, another witness for Respon- dent, gave similar testimony. According to Huggins, if a driver fails to show up, he first tries to find out what is "wrong" and then replaces him with another driver. He agreed that he has authority to "pull a driver off a run pending disciplinary meas- ure." For example, if a driver reports in a condi- tion which Huggins believes makes him unfit to drive, Huggins keeps the driver from going out and finds a replacement. It is undisputed that sometime in the 1950's, Su- perintendent of Operations Jack Love, Supervisor Batts ' predecessor, issued a statement which read in part: Dispatchers on the Queen City Coach Com- pany ... system are charged with general super- vision of the bus drivers while on company pro- perty. A dispatcher is the first man in charge of company operations at the terminal or station, in the absence of the Division Manager .... Dispatchers are charged with over-all supervi- sion of the drivers. It is their responsibility to ar- range driver schedules and determine which driver will operate a particular bus. A dispatcher has full authority to remove a driver as a bus operator, either on the grounds that the driver is unfit to operate the bus or for any other reason. A dispatcher is specifically charged with determining that the driver is capable of operating the bus on the particular run. If he decides that a driver is unfit for a particular time, the dispatcher has the complete discretion to hold such a driver and relieve him from the operation. On the system, this is frequently done. * Dispatchers have the authority to recommend the discharge of a driver for cause , and manage- ment has always given very serious considera- tion to such recommendations and has, on many occasions , followed the recommendation and discharged the driver. * * * * * A dispatcher is charged with supervising the moving of buses in and out of the terminal and of seeing that the drivers operate the buses safe- ly in such movements. [ Emphasis supplied.] Driver Lloyd Tucker testified that he did not think that there had been any changes in the dispatchers ' duties between the time the above ' t note that Respondent did not call any rank-and-file driver to testify concerning the dispatchers' authority or to express a belief that dis- patchers did not represent management , or that their "orders" and statements carry no more weight than suggestions or statements made by ordinary drivers statement was issued and the date of the hearing herein and Respondent 's witnesses did not testify that the authority of the dispatchers was later changed or reduced or that the above statement did not correctly describe their authority in 1965-1966 . Furthermore , the testimony of the wit- nesses in the instant case, set forth above , makes it clear that the dispatchers continued to have and ex- ercise all or most of the authority described in the statement just quoted. I conclude , therefore , that the independent evidence in the instant record establishes that dispatchers responsibly assign drivers , direct their work , and can and do use their independent judgment in such matters and also in granting or denying requests for time off. In addition, the testimony indicates that Supervisor Batts gives con- siderable weight to dispatchers' reports concerning drivers when determining what , if any, disciplinary action he should take . It follows and I find on the evidence in the instant case concerning the dispatchers' authority in 1965-1966 that they are supervisors within the meaning of Section 2(1 1) of the Act.' It is also clear that the drivers regard the dispatchers as representatives of management. Bryan Mfg. Co., supra, fn. 3. C. The Alleged Violations of Section 8(a)(4) of the Act" 1. The Union's August 1965 letter and the events through December 1965 As stated supra, a new union campaign began in the summer or early fall of 1965. In a letter dated August 26, 1965, and addressed to all of the Com- pany's drivers, Union President W. A. Thompson announced that the Union had been granted a charter and that it had elected officers. The 10 of- ficers were named and included Thompson as pre- sident, H. A. Sasser as recording secretary, and a six-man executive board. Among the latter were Drivers Ralph Little, Marshall Robinson, Shelby (Shelly) Smith, and Lloyd Tucker. The letter in- cluded an invitation to the drivers to "get in touch" with any of the officers if they were "ready to join this movement." Copies of the letter were sent to President L. A. Love, Vice President Hal J. Love, Company Attorney John Ray, and Supervisor of Drivers Vincent Batts. In turn, Company President Love sent a letter, dated August 31, 1965, addressed to the union of- ficers named in Thompson's letter. In it, Love pointed out that the officers knew that the Com- pany did not recognize the Union as the representa- tive of its drivers and stated that Respondent there- ' Unless stated otherwise , the facts set forth in this section are based on undenied testimony All credibility determinations made herein are based in part upon my observation of the demeanor of the witnesses while testify- ing QUEEN CITY COACH CO. fore concluded that the purpose of the Union's letter was "to seek to establish some sort of preference or immunity" for the Union's officers "as compared to other employees." Love also told the union officers that they should understand that their positions in "what is termed Local Union No. 1531 " would not entitled them to "preferred treat- ment or immunity of any sort from this Company." The letter closed with the statement that the Com- pany wanted to make it "entirely clear" that the Union's officers would be expected and required to perform jobs as fully as other drivers if they wished "to remain in this Company's employment." In September 1965 Charlotte Night Dispatcher Robert Huggins told Driver Marshall Robinson, who had worked for the Company for about 24 years and who was listed in the Union's letter as a member of its executive board, "I will tell you there is a lot of good men that is going to get hurt in this thing, whether they have had very much to do with it or not." Huggins was a witness for Respondent but did not deny having made the above statement to Robinson and the above finding is based on the latter's undenied and credited testimony. The Union's August letter listed Herman A. Sasser, who had driven for the Company for 25 years, as the Union's recording secretary. About a month after the letter was sent out, Chief Dispatcher Coy Little notified Sasser to go to Su- pervisor Batts' office. Batts first talked to Sasser about the latter's failure to have a copy of the latest tariff or rate book and gave Sasser a copy and the latter signed a receipt for it. While Sasser was in Batts' office, the subject of the Union came up and Batts asked Sasser "what is really behind this anyway?" When Sasser answered, "security," Batts replied, "security hell . . . look at all of these old men running around here." Sasser agreed but asked, "what about retirement?" Batts pointed out that there was a ' retirement plan but Sasser reminded Batts that "not one dime" had been put in the bank for him, i.e., Sasser. Batts in- formed Sasser that he had "news" for Sasser which was that the Company could "stop any plan any time it pleased." Of course, Batts' statement was true but, if the plan were set forth in a valid collec- tive-bargaining contract, the Union might maintain a successful damage suit for breach of contract. Batts also remarked that "the Union wouldn't be so bad after we get rid of all of the hotheads," that Carolina Coach had an "awful time for the first year, but ... after they got rid of all of the hotheads ... everything worked out and they got along pretty well." Sasser reminded Batts that the latter knew Sasser's position with respect to the Union and told Batts , " you know this thing is going this time." Batts disagreed, saying, "if I can do or have anything to do with it, it is not." Sasser asked, "anything that is right?" and Batts "just smiled." Sasser told Batts that Mrs. Sasser was in the car and was expecting him to come back and say that 475 his work was not satisfactory. When Batts told Sasser, "you know we don't let a man go unless we have a reason," Sasser asked, "do you use the same reasons for all of us?" Batts again just smiled and did not answer. The above findings are based on Sasser's unde- nied and credited testimony. On December 4, Chief Dispatcher Coy Little, who is President Love's nephew, told Driver Marshall Robinson he wanted to talk to Robinson. Robinson said that he had been wanting to talk to Little since he (Robinson) "had come out for the Union" (in the August letter), that he did not want Little to think "hard" of him because he and Little had been good friends. Little commented about Robinson's "beautiful" home, his "lovely" wife, and their two "fine" chil- dren and asked why Robinson did not "get out of this and help break it up," saying that if Robinson got out and helped "break it up," he could "have most any job with this Company" that he wanted. Robinson answered that he did not intend to get out of the Union and Little stated that President Love was "disappointed" in Robinson. Robinson, in turn, told Little that he was disappointed in Love. Robinson was discharged on January 20, 1966. See infra. The above findings concerning Robinson's con- versation with Chief Dispatcher Little are based on Robinson's undenied and credited testimony. 2. The Union's January 1966 letter and the Company's alleged violations of Section 8(a)(1) in 1966 The Union's second letter to the drivers was sent out on or about January 7, 1966, and a copy was sent to Supervisor Batts. It began by saying that it was time for a "progress report" and went on to state that the Union was "pleased" to announce that the "response" to its efforts had been "very favorable." It also listed the names of 12 employees who had asked that the Union announce their "sup- port" of its "position." Included among the 12 were Rayford Dale, Charles E. Parker, Lee Roy Seitz, and Floyd Sessoms. Other drivers were invited to join the Union either as "boosting" members speaking out for the Union or as "confidential" members. The letter reminded the drivers that another Board election could not be held until a year after the previous one (which was held in March 1965), and that even then the Union could not obtain an election "automatically" but that its representation petition would have to be supported by a sufficient "showing of interest" among the full-time drivers. According to the letter, the best way to show in- terest would be to become dues paying members of the Union. Finally, the letter notified the employees that a Board hearing would be held shortly, a complaint 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having been issued which alleged the discriminatory discharge of five drivers.9 Dale On January 11, Rayford Dale, whose name was listed in the Union's January letter, was suspended for a week and, on January 20, Marshall Robinson was discharged. As set forth supra, Robinson was listed in the Union's August letter as a member of its executive board and in December 1965 he had refused company efforts to cause him to defect from the Union and help the Company defeat it, despite Chief Dispatcher Little's statement that, if he did so, he could have almost any job with the Company. Dale was discharged on May 30, i.e., 2 days before the hearing on the Union's 1966 representation petition. The facts concerning Robinson's discharge and Dale's suspension and discharge are set forth infra. Floyd Sessoms, a driver at the Fayetteville ter- minal, was one of the employees whose support of the Union was announced in the January 1966 letter. He testified that Fayetteville Dispatcher Rufus Horne spoke to him "several times" about the union campaign. Once was "around the first of January" 1966 when, according to Sessons, he and some other drivers were in the' dispatcher's office and Horne started " teasing" Sessoms "about how long" Sessoms "would be there" and said that it would be "from 30 days to 60 days, or maybe 90 days." Horne also told Sessoms, "you know you have got to go, there is no way in the hell you can stay ... they will find something on you." Although Sessoms asserted that he was doing his job accord- ing to company rules, Horne held u a finger and commented that "this will be the forger that will dial you," adding "I will tell you to catch the twelve twenty-five schedule to Charlotte, and the bus of no return." Sessoms explained that the 12:25 bus was one of two buses the drivers ride to Charlotte and "come back minus a job." When asked by Respon- dent's counsel if he had ever taken the 12:25 schedule to Charlotte, Sessoms replied, "No sir, not yet....,, In early January, Sessoms had a conversation with Andrew Barkley, the shop foreman in Fayet- teville, in which the Union was mentioned. Also present were Dispatcher Rufus Horne and Robert Pulley, a driver who did some "relief" dispatching. One of the subjects discussed was Sessoms' reasons for being for the Union and Foreman Barkley told Sessoms that he had done "a lot to help keep [Ses- soms] there ... but he would do just as much now to get rid of [him]." Neither Horne nor Barkley was a witness and I credit Sessoms' undenied testimony concerning the above conversations. It is undisputed that Barkley's title is "shop fore- man" and that 12 to 15 men work "under" him repairing and servicing buses. I find that Barkley is a supervisor within the meaning of Section 2(11) of the Act.10 Respondent introduced no evidence con- cerning Barkley's position or authority. Cf. N.L.R.B. v. West Coast Casket Company, Inc., 205 F.2d 902, 904-905 (C.A. 9). Lee Roy Seitz, who had been a driver for the Company for 23 years, was listed in the Union's January letter. According to Seitz, before the letter came out, Charlotte Dispatcher Jones "picked at" him and asked to see his card. After the letter, Jones "apologized" for "teasing" Seitz so much about his card. However, a week or two later and on other occasions, Jones asked Seitz, "why don't you turn your card in ... I thought you were a better man than that." Jones told Seitz that if he turned in his card he would not have so much "pressure" on him and "if [he] got into any trouble" " In Queen City Coach Company, 159 NLRB 204, the Board found, inter aha, that, in the summer of 1965 , Frank Snodgrass, a professional in- vestigator, recently hired by the Company paid Joyce Lewis, a young woman , to try to persuade certain named drivers , who were known or suspected to favor the Union to allow her to ride free , that she was success- ful in several cases, and that the Company thereafter discharged the known or suspected prounion drivers who did allow her to ride free whereas the in- vestigator and/or the Company showed no interest in or took no action against nonunion drivers guilty of the same offense It was also found that the young woman was told that the Company was "trying to get rid of most of them that were in the Union " When the young woman was successful, the investigator called Supervisor Batts to report and also told Batts that it was "no go" in the case of Driver Neil Young, the Union 's financial secre- tary and treasurer In the case of Union Vice President Lawrence Meissner, who did not allow Lewis to ride "free." the investigator told Lewis that he [Snodgrass ) was to receive a $2 ,000 bonus if he could trap Meissner and promised Lewis $ 100 "extra" if she could succeed in doing so Snodgrass told Lewis' brother " we had to catch Meissner , he was the Vice President of the Union and the one we wanted " The other drivers Lewis was asked to approach included two members of the Union 's executive board, Ralph Barnes and Ernest Cosart , and on one occasion the investigator indicated that Lewis rode with the wrong Smith, that it was Shelly Smith , another member of the Union's executive board, who was wanted because Shelly "was in the Union " One of the statements taken by Company Attorney Ray and signed by Lewis included the claim that Lewis had ridden free twice on Meissner's bus although Ray admitted at the hearing, "I un- derstand that Mr Meissner paid Miss Lewis ' fare " As for the driver who was not suspected of union activity and was not disciplined or even repri- manded although he allowed Miss Lewis to ride free once , Ray testified "it was felt . . that it had been a mistake or any other number of reasons I why ] he would not ride her free again " The Board also found that 5 days before the hearing in that case opened , a driver and Andy Barkley, the shop foreman at Fayetteville (see infra ), drove slowly around the parking lot of the motel in which counsel for the General Counsel was interviewing wit- nesses in preparation for the hearing . Although in that case, as in the present one, Respondent did not file a brief, the Trial Examiner found and the Board agreed that the evidence did not support a finding that two other employees were discharged because of their union activity . In Queen City Coach Company, 160 NLRB 216, issued in July 1966, the Board found that Fayetteville Division Manager Little illegally interrogated employees about their union activity However, it reversed the Examiner's finding that an employee was discharged in violation of Section 8(a)(3) of the Act " Barkley was also found to be a supervisor in Queen City Coach Com- pany, 159 NLRB 204, 217 QUEEN CITY COACH CO. 477 that "the Company would more than likely help [him]."" Driver Flynn Purser began working for the Com- pany in 1941 and the only break in his employment was the 3-1/2 year period when he was "in the ser- vice." On January 15, Purser was waiting for his bus to arrive and Dispatcher Jones talked to him about how bad the Union was when Jones worked for Carolina Scenic. Although Jones remarked that Purser was not supposed to leave his bus, he told Purser that he could go "upstairs" and "turn [his] card in" and "it would be all right. 1112 On January 25, Jones told Purser, "I am going upstairs to turn in my card" and asked if Purser wanted "to go along" and turn in his card. Purser's answer was that it was a good idea, that, if he had a card, he would turn it in . Cf. Jones' admission that he told an undisclosed number of drivers that he was going "upstairs" and turn in his card although he conceded that he did not have a union card. The above findings are based on Purser's credited testimony. Lloyd Tucker had worked for the Company for 28 years and he served as a dispatcher from ap- proximately 1942 to 1958. He was listed in the Union's August letter as a member of its executive board. He testified that "a little after this last Christmas," Dispatcher Jones asked or said something about he heard that Tucker had a union card . Tucker admitted that he did and asked if Jones wanted to see it. Jones answered "yes," saying that he had never seen one. Tucker then showed Jones his card. If, as Jones testified, he was a member of the Union at Carolina Scenic, he must have had a card. Of course, he may not have been a member. After looking at Tucker's card, Jones said he be- lieved he would take it up and show it to President Love. Tucker replied, "No, you won't, if Mr. Love wants to see it, I will show it to him." Jones ad- mitted that he said to Tucker, "why don't you show [the card] to the man upstairs." The above findings are based upon Tucker's credited testimony. Shelly Smith had been driving for the Company since 1940 and was listed in the Union's August letter as a member of its executive board. On vari- ous occasions before the Union's January letter, Dispatcher Jones "teased" Smith about the latter's card, asking how the Union was getting along, do "you want to sign me up," and "this, that and the other." Smith testified that he "felt like" Jones' purpose was to try to find out whether or not Smith had signed a card. Smith gave such answers as "no comment" and "don't need you." Smith drove between Jacksonville, North Carolina, and Charlotte which he described as a "very hard run to pull." He was due in Charlotte at 3:55 p.m. and admitted that on "normal" days he was often 15 minutes late and that he was even later on "heavy" days. After the Union's January letter, Jones spoke to Smith about being late, Jones' asserted reason being that his late arrival meant that the Company's 4 p.m. bus to Atlanta would be late leaving. This, Jones said, allowed the Greyhound bus which also left for Atlanta at 4 p.m. to "clean out" all of the business between Charlotte and Atlanta.` How- ever, it seems doubtful that the Company's 4 p.m. bus could leave promptly even if Smith arrived at 3:55 p.m., i.e., exactly on time, for it would be dif- ficult to transfer passengers and their baggage from the Jacksonville bus to the Atlanta bus in 5 minutes even if it is assumed that none of the passengers wanted to use the restrooms. It is even more doubt- ful that the Company expected Smith to arrive every time at exactly 3:55 p.m. Surely, there are days on which he is late leaving Jacksonville through no fault of his own. And, almost certainly, traffic and road conditions and the number of stops vary enough that it is not unusual for a bus to be a few minutes late. In fact, Jones testified that he had not had a driver "to come in early" and, if one did so, it would give him "a pretty good idea" that the driver had been speeding. Under these circum- stances, I do not believe Jones' testimony, unsup- ported by records, that Smith's alternate driver al- ways arrived on time, and he himself testified at one point that the other driver arrived "about on time." Nor is there any evidence that the " Jones, a witness for the Respondent , did not deny specifically having made the statements attributed to him by Seitz and other drivers (see infra) but gave a summary version of what he and they said . According to Jones, the drivers would " rug" him about the Union and union cards and he would "rag" them about the same subjects . Jones also testified that he described the "problems " he had experienced during a strike when he was a driver for Carolina Scenic . Although he claimed that he was a member of the Union , he admittedly did no picketing and it is undisputed that he told driver Tucker that he-Jones-had never seen a union card Jones stated that he did not know which Queen City drivers had cards and dented that he told any driver he should turn his card in "upstairs ." However, he ad- mitted that he asked Tucker if he had got his card yet and asked "why don't you show it to the man upstairs ," meaning President Love or Supervisor Batts. He also admitted that he said he was going to turn in his card "up- stairs" although he had no card . Having considered the demeanor of Jones and the drivers while testifying, Jones' testimony generally and his failure to deny specifically most of the statements attributed to him , and the Com- pany 's entire course of conduct with respect to the Union, particularly in 1965-1966 , which includes the use of Driver Lowder to furnish informa- tion about union members and the undemed statements of the other super- visors, I do not credit the testimony of Jones concerning his conversations with the various drivers On the contrary, I credit the testimony of Seitz and the other drivers who testified concerning statements Jones made to them 'These conclusions are also based in part on the fact , discussed infra, that the Company could prevent the Union from obtaining an election in 1966 if it could cause enough drivers to give their union cards to management. " A few days earlier, Supervisor Batts had put Purser on probation because the latter had a passenger on his bus who should have been on a different bus. The "slip" given Purser directed him to be on time and to stand outside the bus when passengers were boarding and when he was tak- ing up tickets " If Smith had passengers for Atlanta, the Company 's Atlanta bus would wait until Smith arrived Smith understood that Jones was trying to get him to arrive in time to make connections with the 3 30 p in bus to Atlanta but he was obviously mistaken 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greyhound bus always leaves at exactly 4 p.m. And it is unlikely that many passengers who have bought company tickets would buy Greyhound tickets because the company bus was a little late. But even assuming, arguendo, that Smith's late arrival at times caused Greyhound to gain passen- gers who would otherwise have boarded a company bus either in Charlotte or someplace along the way, Jones disclosed that the Company would "forgive" Jones if he would turn in his union card. As Jones put it, if Smith went "upstairs" and turned in his card, his tach or disc would be taken care of. A tachograph or disc automatically records a bus' speed, the time of every start and stop, and is turned in by the driver along with his report. The above finding is based on Smith's credited testimony. Jones did not deny having told Smith that his tach or disc would be taken care of if he turned in his card although he did not include the statement when describing what he said to Smith.14 Delmar "Bill" Smith had been a driver for the Company for more than 25 years. About February 1, Smith and Carolina Scenic Driver Martin were together and Dispatcher Jones told Smith that Mar- tin "was going up to turn his card in" and asked if Smith wanted to go with Martin. (There is no evidence that Martin was a member of the Union; if he was, there is no evidence that he was going to turn in his card.) When Smith replied that he had no reason to "go up," Jones commented that he was in the office the day before and that "they" had a "stack" of cards about an inch or an inch and a half high, that the men were "sure turning them 'in," and were "telling on everyone else." When Driver Marshall Robinson, who was discharged on January 20, 1966, went back for his check, Jones told him that an inch or more high stack of cards had been turned in at Supervisor Batts' office. The above findings are based on the credited testimony of Smith and Robinson. On February 4, Driver Rayford Dale reported to Chief Dispatcher Coy Little and Dispatcher Her- man Jones that he (Dale) had been called for jury duty beginning on February 7. Jones told Dale that he would get Dale excused if Dale would "sit on the Company's side" at a Board unfair labor practice " In view of Jones' statement about the tach, Smith 's asserted reason for being late, i e , that prounion drivers were put on probation for speeding after the Union 's January letter , is immaterial Smith named two prounion drivers who , he said , were put on probation for speeding after the January letter and explained that in the past he had exceeded the speed limit by 4 or 5 miles an hour "quite often" and that Supervisor Batts and perhaps others had warned him to "hold it down a little" on that particular schedule Batts did not deny having given Smith such a warning but he did deny having put any drivers on probation for speeding after January Batts did recall that Wyant, one of the drivers named by Smith , was put on probation in November 1965, i e., after the Union 's August letter , partly for speeding Although Batts testified that company records had been checked to deter- mine whether anyone had been put on probation for speeding after Janua- ry, his testimony that he had "no idea" how many drivers had been put on probation for speeding after January I and his refusal to even estimate the number makes it unlikely that the records had been checked The general unreliability of Batts' testimony is discussed elsewhere Moreover, the hearing which was to be held at or about the same time." Dale refused Jones' offer and served on the jury. On February 20, Dispatcher Herman Jones called Lowder to come to work and assigned him to bus number 6460. Lowder said he had better leave be- fore Jones changed his mind but Jones called Lowder back and asked, "why did you ever get mixed up with this Union?"16 Lowder explained that everybody else was joining and he joined to be with the crowd. Jones told Lowder, "I thought that you were a better man than that" and that "some years back" Jones was working for Carolina Scenic when the employees tried to get a Union and "the man in charge told them if they wanted to keep their jobs, they would have to forget about the Union or else they would be replaced."" Jones also stated that Lowder could take his union card "up- stairs and turn it in , and things would be a little better off." Lowder replied that he would keep his card. The above findings are based on Lowder's credited testimony. Charles E. Parker, who was one of the drivers listed in the Union's January letter, had been driv- ing for the Company for more than 15 years. Ac- cording to Parker, J. M. Gainey, who works at the Myrtle Beach, South Carolina, terminal, has "sev- eral titles," such as division manager and dis- patcher, and Gainey is also "in charge of" that terminal . As set forth infra, Parker testified that Gainey told him what President Love had said about the Union at a meeting of division managers in Charlotte. No witness for Respondent denied any of Parker's testimony and none testified concerning Gainey's title and authority. Nor did any witness deny that there was a meeting of division managers in Charlotte at or about the time indicated and none claimed that Gainey is a supervisor within the meaning of Section 2(11) of the Act either because he is a division manager, or a dispatcher, or is "in charge" of the Myrtle Beach terminal."' Parker testified that, on February 22, Gainey brought up the subject of the Union and stated that the division managers had been called to a meeting in Charlotte. Parker quoted Gainey as having told him that President Love told the managers that the records of the two drivers named by Smith were not introduced into evidence or produced for inspection " 1 noted at the instant hearing that company witnesses and supporters sat on one side of the courtroom and union supporters and witnesses to be called by counsel for the General Counsel sat on the other side Again, Jones did not deny the statement attributed to him but only gave another version of the conversation Having observed the seating at the instant hearing , I believe that Jones wanted Dale to sit on the Company's "side" and this is another reason for discrediting his indirect denials concerning statements attributed to him by various witnesses The above finding is based upon Dale's credited testimony i" Lowder testified that bus number 6460 was a 1964 model and was the most recent model to which he had been assigned it As stated earlier, Queen City and Carolina Scenic had merged at the time of the hearing i" Parker's testimony suggests that Gainey is the only management representative at that terminal QUEEN CITY COACH CO. 479 Company was not "going to have any Union," the Company was "not going to give in to any Union and would not recognize the Union." Gainey, ac- cording to Parker, also quoted Love as having said that the Union could not make the Company raise wages or "better the working conditions" and that, "if the Union came in, they would have to cut out runs and lay off men according to seniority." Gainey was not a witness and, therefore, Parker's testimony is undenied. I therefore credit all of Par- ker's testimony even though he included only a part of it in his prehearing affidavit. Also, as noted above, no one denied that there was a meeting in Charlotte or claimed that Gainey was not present. Nor did President Love deny having made any such statements in the period before February 20. In addition, the statements Gainey attributed to President Love are consistent with Love's-and the Company's-longtime attitude toward union representation as revealed by Love's early state- ments to Robinson (see supra), its use of Driver Lowder as an "informer" and Batts' statements to Lowder about the use the Company would make of the information Lowder provided (see supra) and, Respondent's entire course of conduct during the 1965-1966 union campaign. Parker, therefore, had every reason to believe that Love made the state- ments attributed to him by Gainey. It is undisputed that Driver Lowder had been supplying Supervisor Batts and/or Attorney Ray, particularly Batts, with information about the Union since the fall of 1963 and continued to do so "until the present time," i.e., the date of the hear- ing, even though Lowder had become a union sup- porter.19 Lowder testified that the most recent union meeting he attended was the one held at the home of Marshall Robinson on March 9, 1966, i.e., at or about the time the Board could conduct another election and within the period covered by the complaints. (See infra.) Lowder testified that 10 or 15 drivers were present who had not attended earlier union meetings and when he reported on the meeting to Batts, Batts "wanted to know" who the 10 to 15 were and Lowder told him. Lowder's testimony in this respect, as in others, is undenied and is credited. About the first of April, Dispatcher Horne told Driver Sessoms that he should "turn [his] card in. To go up and see the man and have a talk with him. And tell him [Sessoms] was wrong." Sessoms replied that he could not admit that he was wrong because he "still believed in it." Horne repeated that Sessoms could "go and give" the card to the man and "just tell him [Sessoms] wanted out of it." About the middle of April, Horne again said that Sessoms should turn is card in. Sessoms answered that there was "no use" to turn in his card because he was going to vote for the Union. Horne an- swered that Sessoms' vote would be "challenged, they will find something to get rid of you [for] be- fore [the] election." Wiley Simmons began driving for the Company in 1946 and his home terminal is Fayetteville. On April 3, Dispatcher Horne told Simmons that "most of the drivers had turned their cards in" and, if the drivers did so, "there would be nothing else [done] about it, it would all be settled and the Company would forget about it." Horne also commented to Simmons that 2, 3, 7, 8, or some number of drivers had not turned in their cards and that there were 17 drivers who "would be going in the next forty to forty-five days" if they did not turn in their cards. Simmons testified that he had not "made public" whether or not he had signed a card. Horne also pointed out that "it was better to re- pent [than] to get killed" and told Simmons to turn his card in and "tell the man" that he was "sorry" that he was "ever involved in it or had anything to do with it." Horne added, "you know if the Com- pany can beat the Labor Board, it can beat a little old driver." Sessoms' and Simmons' testimony is undenied and I credit it.2o On May 2, Supervisor Batts told Driver Rayford Dale that he "had a few words" he would like to say to Dale. (As set forth infra, Dale was suspended for a week in January, a few days after the Union sent out its January letter in which Dale's name was listed.) Batts acknowledged that he knew that Dale was named in the union letter but commented that if Dale "felt like" he was "man enough" to go to Batts' office and "admit" that he had "made a mistake, the welcome [mat] was spread" and Batts would "guarantee ... that nothing would happen to [Dale]." When Dale replied that he did not feel that he had made a mistake, Batts patted him on the back and told him to remember what he- Batts-had said. Dale was discharged May 30, i.e., 2 days before a Board hearing on the Union's 1966 representation petition. Dale's testimony is undenied and is credited. In July, Driver Lowder, who had been supplying Supervisor Batts and Attorney Ray with informa- tion for several years, received a subpena to appear and testify at the instant hearing as a witness for the Board. When Lowder told Batts about the subpena, Batts stated that it was not "worth" the paper it was written on and that Lowder "could tear it up." Batts added that he would not tell Lowder to tear up the subpena, that he could do as he pleased, i.e., about honoring it. When Lowder said he would be at the hearing, Supervisor Batts asked if Lowder had given a state- ment to the Board and Lowder answered in the af- firmative. Batts then inquired "what the statement " As set forth earlier, Lowder was paid by the Company for any driving on May 2 (see infra) are additional reasons why I believe that Dispatcher he missed attending union meetings Jones made the statements about the cards attributed to him by various wit- h" Horne 's statements and the one Supervisor Batts made to Driver Dale nesses 480 DECISIONS OF NATIONAL was about" and Lowder said it concerned Dispatcher "Herman Jones, about turning [Low- der's] card in." Finally, Batts said he would "let [Lowder] know" whether he could be "off" to at- tend the hearing, to "come by Monday and check with him." The above facts are based on Lowder's undenied and credited testimony. 3. Analysis and conclusions concerning the foregoing conduct It is undisputed that, in 1958, President Love successfully enlisted the help of Driver Robinson in "breaking up" the Union and, in connection therewith, promised that, if Robinson cooperated, as Robinson in fact did, he would have a job with the Company as long as Love did. (This did not prove to be the case for Robinson was discharged in January 1966. See infra.) In addition, from the fall of 1963 until August 1966, the Company used Driver Lowder to keep itself informed about which drivers were prounion, union meetings, and plans and sometime before August 1965 Supervisor Batts told Lowder that the information he furnished would "help weed out" union adherents and that Batts would discharge such drivers. In addition, President Love's nephew, Chief Dispatcher Coy Little, tried to get Driver Robinson to "mark" his mail ballot-or to have Mrs. Robinson do so-in the presence of President Love. Such behavior dis- closed the Company's attitude toward union representation and forms the background against which the Company's 1965-1966 conduct may properly be considered. After the Union's August 1966 letter announcing that it had received a charter and had elected of- ficers, Chief Dispatcher Coy Little sought, as Pre- sident Love successfully did in 1958, to cause Robinson to "defect" from the Union and help the Company defeat it. Also, as President Love did in 1958, Little promised Robinson preferred job treat- ment if he agreed to help the Company. However, this time, Robinson refused to get out of the Union and assist the Company in its antiunion campaign. A little earlier, Dispatcher Huggins told Robinson that "a lot of good men were going to get hurt in this thing" and Supervisor Batts told Driver Sasser that "the Union wouldn't be so bad after we get rid of all of the hotheads." The Union stated in its January 1966 letter that the employees' "response" had been "very favorable" and it provided proof by listing the names of 12 drivers (in addition to the officers named in its August letter ) who were willing to have the Union identify them as prounion. See also Driver Robinson's refusal this time to defect from the Union and help the Company defeat it. '. Because unions often seek a contract provision which states that layoffs will be based on seniority , I find that Gainey's statement re sentor- LABOR RELATIONS BOARD Shortly after the January letter, Fayetteville Dispatcher Horne "teased " Driver Sessoms, whose name was listed in that letter , about "how long" Sessoms would be employed by the Company, esti- mated how long it would be before Sessoms would be discharged, and told Sessoms that he knew he had "to go." Horne also remarked there is "no way in the hell you can stay ... they will find something on you," i.e., something for which Sessoms could be discharged. Horne also made it clear that he would be the one who would send Sessoms to Char- lotte on one of the buses the drivers ride to Char- lotte and come back " minus a job." At or about the same time, Fayetteville Shop Foreman Barkely told Sessoms that he [Barkley] had done "a lot to help keep" Sessoms "there ... but he would do just as much now to get rid of" Sessoms. See also Horne's statement to Sessoms in April, when Sessoms said that it would be useless for him to turn in his card because he would vote for the Union, that Sessoms' vote would be challenged, and that "they will find something to get rid of you [for] before the elec- tion." During the same period, Dispatcher Horne re- marked to Driver Wiley Simmons that "it was better to repent [than] to get killed," adding that if the Company could "beat" the Labor Board, it could "beat a little old driver." In late February 1966, Supervisor Gainey told Driver Parker that President Love had said that, "if the Union came in," the Company "would have to cut out runs" and lay off drivers by seniority.21 Gainey also told Parker that President Love had stated that the Company was not going to have or recognize a union, that it would not give in to a union , and that a union could not make the Com- pany raise wages or provide better working condi- tions. Such statements, particularly the ones first quoted above, made it plain that the Company would not bargain witl. the Union and that, there- fore, a successful union campaign would be futile. Such remarks are a most effective means of discouraging employees from joining a union and from voting for it in an election . They would also serve to encourage employees to abandon their union membership and activity as a waste of time, effort, and money. There is no evidence that the Union ever requested recognition and bargaining on the basis of cards; on the contrary, the many elections in- dicate that the Union had always sought to prove its majority in a Board-conducted election. Although it had lost several elections, it was defeated in March 1965 by a much smaller margin than in 1964 and the March 1965 vote, 102 to 79, meant that the Union would win the next election and be certified if only a dozen drivers voted for instead of against the Union , assuming that the total number of votes cast was the same. ity constituted an "argument against Union representation " and, there- fore, did not violate Section 8(a)(1) of the Act QUEEN CITY COACH CO. 481 As a result, the Union's January 1966 letter was significant in a number of respects . It claimed and cited proof of its claim that the Union was making progress, announced that it would seek another Board election as soon as the Board could legally hold one, i.e., sometime in March and at all times thereaftert. More significantly, the letter pointed out that the Union could obtain another Board election only if its petition was supported by a sufficient "showing of interest," i.e., proof that a sufficient number of employees want the Union to represent them to jus- tify holding an election. Such proof usually consists of union cards signed by employees in the unit and the Union 's January letter invited additional drivers to support the Union either openly or secretly and to show their interest by becoming dues-paying members.22 The Board's "showing of interest" requirement made it essential to the Union that the drivers who signed cards give them to the Union. On the other hand , if management could cause enough drivers who had signed cards to turn them in to the Com- pany, it could or might prevent another election by making it impossible for the Union to submit a suf- ficient "showing of interest" along with its petition. Thus, Fayetteville Dispatcher Horne told Driver Sessoms that " most" of the drivers had given their cards to the Company and commented that, if the drivers did so, "there would be nothing else done about it, it would all be settled and the Company would forget about it." ( Emphasis supplied.) It is in the light of the "showing of interest" requirement that the Company 's campaign to cause the drivers who had signed cards to give them to management must be considered. I assume that such a company campaign sup- ported by arguments only would not violate the Act. However, most of the Company's "sug- gestions" in this respect were accompanied by threats of reprisals or promises of benefits . For ex- ample, Dispatcher Horne warned Driver Sessoms that it was "better to repent " than "to get killed," and told Sessoms "to turn [his] card in" and tell the man he was "sorry " he got "involved" in the Union. See also Dispatcher Jones' question of Driver Seitz, "why don't you turn your card in?" which was followed by Jones' comments that, if Seitz did so, he would not have "so much pressure" on him and "if [Seitz ] got into any trouble the Company would more than likely help [him]"; Jones' remark to " Bill" Smith that the drivers who were turning in their cards were "telling on every- one else," a statement for which there is no support in the record; Jones' comment to Driver Lowder that, if the latter turned in his card " upstairs," things "would be a little better off"; Jones' criticism of Driver Shelly Smith for not "making" his schedule and Jones' statement in the same conver- sation that Smith's driving tach or disc would "be taken care of" if Smith went "upstairs" and turned in his card; Dispatcher Horne's advice to Sessoms to turn in his card and tell the "man" he (Sessoms) was "wrong" and "wanted out of it" and when Sessoms stated, on a later occasion and after a similar suggestion , that he was going to vote for the Union, Horne's prediction that Sessoms' vote would be challenged, that "they" would find "something to get rid of" Sessoms for before the election; and Dispatcher Horne's statement to Driver Simmons that a number of drivers would be discharged within a few weeks if they did not turn in their cards. See also Supervisor Batts' statement to Driver Dale that, if Dale was "man enough" to go to Batts' office and "admit" that he had made a "mistake," the "welcome [mat] was spread" and Batts would guarantee that nothing would happen to Dale. In my opinion, it is reasonable to conclude, as I do, that the effect of such statements was to coerce drivers into giving their union cards to management instead of to the Union and that the Company's purpose was to make it impossible for the Union to obtain an election in 1966. I also find that the statement that the drivers who were giving their cards to management were "telling on" the prounion drivers was coercive. There is no evidence that this statement was true but whether true or untrue, it implied that the Company's card campaign was being used to identi- fy the drivers who remained loyal to the Union, i.e., that it was a form of surveillance. Employees who have been threatened with reprisals and promised benefits could also reasonably conclude that the drivers were turning in their cards and "telling on" others in order to avoid adverse personnel action or to obtain benefits. Then, too, there was the Company's use of Driver Lowder as a source of information about union members and plans from 1963 up "until the present time," i.e., the date of the hearing. Lowder attended a union meeting on March 9 and found that 10 or 15 drivers were present who had not at- tended any previous meeting. He reported this fact to Supervisor Batts; Batts asked Lowder to name the drivers and Lowder did so. Although the test of whether statements violate Section 8(a)(1) of the Act is objective, not subjec- tive (N.L.R.B. v. Ford Brothers, 170 F.2d 735, 738 (C.A. 6)), I note that many of the drivers who testified to the statements set forth in this section had worked for the Company for 25 years, more or less. Such men are no longer young and driving buses was clearly their only skill. As a result, they " The Union did file a petition in 1966 and a hearing was held on June 1, 2 days after Dale . one of the alleged discnmmatees . was discharged The Board conducted an election on August 4 in which the Union was defeated by a vote of 97 to 86, 1 e , by a narrower margin than in March 1965, when the vote was 102 to 79 If six of the employees who voted against the Union in the August 1966 election had voted for it . the Union would have won notwithstanding the discharge of Robinson and Dale 354-126 O-LT - 73 - pt. 1 J- 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would certainly find it difficult to obtain compara- ble employment . For example , Driver Robinson, who was discharged on January 20, applied for a job with the Sheriff's office. Finally, in July 1966 Batts told Driver Lowder that a Board subpena was not worth the paper it was written on and that Lowder could tear it up. After Lowder said he would honor the subpena, Batts asked if Lowder had given the Board a state- ment. When Lowder answered in the affirmative, Batts asked what the statement was about. I find that the following acts constituted inter- ference, restraint, and coercion and therefore vio- lated Section 8(a)(1) of the Act: 1. Dispatcher Huggins' statement to Driver Marshall Robinson that "a lot of good men" are "going to_ get hurt in this thing, whether they have had very much to do with it or not." 2. Supervisor Batts' questioning of Driver Her- man Sasser about what was "behind " the organiza- tional campaign and Batts' statement in the same conversation that "the Union wouldn 't be so bad after we get rid of all of the hotheads." 3. Chief Dispatcher Coy Little's comments to Driver Marshall Robinson about the latter 's "beau- tiful" home, his "lovely" wife , and their two "fine" children, comments which were followed by Little's asking why Robinson did not "get out" of the Union and "help break it up," Little 's statement that, if Robinson did so , he could have "most any job with this Company" he wanted; Little's state- ment, when Robinson refused to "cooperate," that President Love was "disappointed " in Robinson. 4. Respondent's use of Driver Sparrell Lowder from August 1965 up to the time of the hearing to keep it informed concerning union meetings, the identity of prounion drivers, and the Union 's plans. The Company neither claimed that it had or in fact had a legitimate reason for needing such infor- mation and , in the past, Batts had told Lowder that it would be used to help "weed out" prounion drivers. 5. Fayetteville Dispatcher Horne 's "teasing" of Driver Floyd Sessoms after Sessoms' name ap- peared in the Union 's January letter , about how long Sessoms would "be there" and Home's re- marks in the same conversation that it would be "from thirty days to sixty days or maybe ninety days," that Sessoms knew he had "to go," that there was "no way in the hell" he "could stay" and that they "will find something on you," and Horne's prediction that he would place a telephone call and Sessoms would be directed to go to Charlotte on one of the schedules which drivers ride and return "minus a job." 6. Fayetteville Shop Foreman Barkley's state- ment to Driver Sessoms that he had done "a lot" to keep Sessoms employed "but he would do just as " As found infra, Robinson was discharged because of his union activity and his discharge was an unfair labor practice it follows, therefore, that he continued to be an employee within the meaning of Section 2(3) of the much now to get rid of [him]." 7. Dispatcher Jones' questioning of Driver Lee Roy Seitz about why he did not give his union card to a management representative , Jones' statements in the same conversation that he thought Seitz was "a better man than that ," and if Seitz turned in his card he "wouldn't have so much pressure on [him]. And if [he] got into any trouble that the Company would more than likely help [him]." 8. Dispatcher Jones ' offer in January 1966 to allow Driver Flynn Purser to leave his bus to go "upstairs " and turn in his card although Purser had been ordered by Supervisor Batts to stay with his bus when loading passengers. Jones' statement in- dicated to Purser that the Company's interest in receiving union cards was such that it would over- look Purser's violation of direct orders if he vio- lated them in order to give his card to management. There is no evidence that the Company ever gave Purser permission to violate Batts' orders for any other purpose. In addition, an employee on proba- tion would be under particular pressure to take ac- tion which would please the Company and to take no action which would displease it, such as joining the Union. 9. Dispatcher Jones' comment to Driver Lloyd Tucker that he had heard that Tucker had a union card and Jones ' statement, when Tucker showed Jones his card , that he believed he would show the card to President Love. I find that the effect of Jones' first statement was to cause Tucker to reveal whether or not he had signed a card and of his second statement was to cause Tucker to conclude that President Love wanted to know which drivers were prounion. 10. Dispatcher Jones' statement to Driver Shelly Smith, after the Union's January letter, that if he turned in his card "upstairs," his driving "disc" would be "taken care of" and Jones' questioning of Smith about union matters. Jones' statement about Smith's disc was made in a conversation in which Jones criticized Smith for failing to arrive in Char- lotte on time. 11. Dispatcher Jones' statement to Driver Robinson, in late January 1966, that an inch and a half stack of cards had been turned into Supervisor Batts' office.23 12. Dispatcher Jones' comments to Driver Delmar "Bill" Smith , about the first of February 1966 concerning the substantial number of drivers who were giving their cards to management and that those who did so were "telling on everyone else." The latter statement created the impression that one of the purposes of the "turn in the cards" campaign was to enable the Company to determine which of the drivers continued to be loyal to the Union, i.e., it was a form of surveillance. 13. Jones' statement to Driver Rayford Dale in Act, his employment having been terminated because of an unfair labor practice. QUEEN CITY COACH CO. 483 early February 1966 that he would get Dale ex- cused from jury duty if Dale would "sit on the Company's side" at a forthcoming Board unfair labor practice hearing. 14. Jones' questioning of Driver Lowder in February: "why did you ever get mixed up with this union," his comment that he thought Lowder was "a better man than that," and Jones' statement that when he worked for Carolina Scenic and there was an organizing campaign "the man in charge told [the men] if they wanted to keep their jobs, they would have to forget about the Union or else they would be replaced," and Jones' assurance that if Lowder would turn in his card "things would be a little better off." Jones' first statement is found to violate the Act in part because Supervisor Batts also referred to what had happened at another bus company when he told Driver Sasser that Carolina Coach had an "awful time for the first year, but ... after they got rid of all of the hotheads ... everything worked out, and they got along pretty well." Jones' second statement to Lowder, when considered in the light of Jones' other remarks to Lowder, clearly implied that Lowder's future with the Company would or might depend upon whether or not he turned in his card. 15. Supervisor Gainey's statements to Driver Parker that President Love had told a meeting of division managers in Charlotte that the Company was not going to have a Union, that it would not give in to or recognize the Union, that the Union could not make it raise wages or "better working conditions," and, if the Union "came in," it would have to eliminate " runs." 16. Fayetteville Dispatcher Horne's statements to Driver Sessoms on two occasions that Sessoms should give his card to management and his advice that Sessoms say that he "wanted out of it," that Sessoms "talk" to the "man" and tell him Sessoms was "wrong"; Horne 's statement in the second con- versation, when Sessoms said he would vote for the Union, that his vote would be challenged and "they will find something to get rid of you [for] before the election." 17. Dispatcher Horne's statements to Driver Simmons that "most of the drivers had turned their cards in," that, if the drivers did so, "it would all be settled and the Company would forget about it," that a number of drivers had not turned in their cards, that 17 drivers "would be going" within the next few weeks if they did not turn in their cards, that "it was better to repent" than "to get killed"; Horne 's advice to Simmons to turn his card in and say he was "sorry" he got "involved" in the Union or had anything to do with it and Horne's comment that, if the Company could "beat" the Board, it could "beat a little old driver." 18. Supervisor Batts' statement to Driver Dale that he knew that Dale's name was listed in the Union's January letter, that, if Dale was "man enough" to admit that he had made a "mistake," the "welcome" mat was spread, that Batts would "guarantee" that "nothing" would happen to Dale and Batts' advice to Dale that the latter remember what Batts said when Dale stated that he did not feel that he had made a mistake. 19. Batts' statements to Driver Lowder in July 1966 that a Board subpena served on him to appear and testify at the instant hearing was "not worth the paper" it was written on and that Lowder could tear it up; Batts ' questioning of Lowder, after the latter said he would honor the subpena, about whether he had given a statement to the Board; Batts ' questioning of Lowder, after the latter said he had given a statement, as to what it was about; Batts' statement that he would let Lowder know whether he could be "off" to attend the hearing. Batts ' first and last statements quoted above were designed to discourage Lowder from being a wit- ness, Lowder being in a position to testify, inter alia, about the Company's undisputed, systematic and long-time use of Lowder as an "informer." In addition, Batts ' remark made it clear to Lowder that the Company did not want him to testify. Batts' questioning of Lowder about whether he had given a statement to the Board and what the statement contained were not designed to provide the Com- pany with "facts" necessary to prepare its case; I find, on the contrary, that the purpose of Batts' questions was to cause Lowder either to disclose whether or not he was cooperating with the Board and/or to reveal to the Company matters which might well not be relevant to the issues to be litigated. Lowder told Batts that his statement con- cerned Dispatcher Jones' statements about turning in his card whereas Lowder testified as well about the Company's use of him as an informer. Lowder obviously did not want Batts to know, before the hearing, what he had told a Board representative. Because of the many threats of reprisals set forth above, I find that Lowder's reason for answering Batts as he did was his fear that he would or might be penalized for his cooperation with the prepara- tion of the case to be presented against the Com- pany. Cf. N.L.R.B. v. Camco, Inc., 340 F.2d 803, 804 (C.A. 5). D. Respondent 's Alleged Violations of Section 8(a)(3) and (1) of the Act. 1. The discharge of Marshall Robinson a. Robinson's history with the Company Marshall Robinson began working for the Com- pany in 1941. He was a dispatcher for 4 or 5 years in the mid-1940's and served as acting division manager at Jacksonville, North Carolina. He was offered the managership at Jacksonville but refused it because his home was in Charlotte and he did not want to move. As stated supra, in 1958, President Love caused Robinson to get out of the Union and help the Company defeat it; in 1963 Supervisor Batts asked 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robinson how he felt about the Union; and in 1964 Chief Dispatcher Coy Little tried, unsuccessfully, to make sure that Robinson 's mail ballot in a Board- conducted election was marked in the presence of President Love. About June 1965, Robinson was put on proba- tion for 6 months for having left a mailbag on his bus. Robinson testified that no one told him a mail- bag was inside the bus and, although he thought he saw it when he helped a passenger with her luggage, that he then went over to speak to Chief Dispatcher Little and, when he returned, he forgot to look for the mailbag. The Union's August 1965 letter listed Robinson as a member of the Union's executive board; in September Dispatcher Huggins told Robinson that a "lot of good men were going to get hurt in this thing"; and, in December, Chief Dispatcher Little was unsuccessful when he tried to get Robinson to defect from the Union and help the Company de- feat it; in the same conversation Little told Robin- son that President Love was disappointed in him. The Mahler affair, one of the two incidents given by the Company as its reasons for discharging Robinson, happened on January 2. It is described infra. Sometime in January , Robinson was given a safe driving award, having driven for 24 years and for more than 1- 1/2 million miles without an accident. The Union issued its second letter on January 7. On January 11, Rayford Dale, one of the prounion drivers listed in the letter, was suspended for a week. See infra. The second incident relied on by the Company to justify Robinson's discharge allegedly occurred on January 15. See infra. Robinson was discharged on January 20. b. The Mahler affair At or about 8:05 p .m. Sunday , January 2, 1966, at the close of the holiday season , Robinson drove a bus leaving Charlotte for Augusta, Georgia, and various cities in Florida. One of his passengers was Steven Mahler , a 15-year-old boy, who should have been on the Asheville bus, his destination by bus being Indianapolis, Indiana . Robinson admittedly misread Mahler 's ticket reading Charlotte to Au- gusta instead of Charlotte to Asheville. After the bus was loaded but before it left the station, Robinson announced on the bus' loud- speaker system the cities the bus would serve. This finding is based on Robinson's credited testimony. Dispatcher Kiser's testimony reveals that Robinson " Robinson impressed me as an exceptionally conscientious and truthful witness and most of his testimony is undented. He showed no animosity toward the Company although he admittedly was "hurt " by his discharge I credit his testimony that he did not ask Kiser not to report the incident and discredit Kiser 's contrary testimony There is no evidence that Robinson and Kiser are special friends and, absent such evidence , I do not believe that Robinson would make such a request of a supervisor ( If Batts or some customarily made such an announcement before leaving the terminal and other testimony indicates that all drivers did the same. I discredit Mahler's testimony that the announcement was made after the bus was under way for it would make no sense at that time, i.e., the timing would be inconsistent with its obvious purpose, i.e., to enable any pas- senger who is on the wrong bus to get off while it is still in the terminal. Mahler was traveling alone but had made a number of trips by himself between Charlotte and Indianapolis. Robinson testified that the terminal was very crowded that evening and Mahler's mother, Mrs. Aistrop, gave an even more graphic description of the hectic conditions that existed. Robinson also testified without denial that the lighting in the load- ing area was not good and that better lights were subsequently installed. In addition, Robinson pointed out, and a sample ticket supports his con- tention, that some of the tickets are thin pieces of paper and that the stamped destination is difficult to read even in a good light. The record contains no evidence about the tem- perature in Charlotte on the evening of January 2 but Robinson 's testimony that he was in his shirt sleeves when he loaded the bus is undenied. See also Mahler's testimony , set forth infra, about when he got his coat out of his bag in Fort Mill, South Carolina. Mahler did not say anything to Robinson about being on the wrong bus until the bus reached Fort Mill, South Carolina, which is about 25 miles from Charlotte. It is undisputed that, when Mahler ex- plained what had happened, Robinson told Mahler that a Greyhound bus to Charlotte was due "in just a few minutes," gave Mahler a dollar to pay his fare, returned his ticket, and told him that a bus left Charlotte for Asheville at 11:40 p.m. The record does not show the time the bus reached Fort Mill but all of the circumstances make it likely that it was about 9 p.m. or perhaps a little earlier. There is no bus station in Fort Mill and the taxi stand used as a bus stop was either closed or was closing. Robinson's next stop was at Chester, South Carolina, some 25 miles beyond Fort Mill. At Chester, he called Charlotte Dispatcher J. C. Kiser, who is related to President Love by marriage. Robinson told Kiser what had happened and asked him to watch for Mahler when the Greyhound bus reached Charlotte and to see that Mahler got on the 11:40 p.m. bus to Asheville.24 Kiser, a witness for Respondent, did not testify that he criticized other higher company official later learned that Kiser had withheld infor- mation , he would certainly have been in trouble ) Kiser mentioned the in- cident in his nightly report to Chief Dispatcher Little. It is also difficult to reconcile various portions of Kiser 's testimony concerning the circum- stances under which he gave a statement to Company Attorney Ray on January 19, i e., more than 2 weeks later For the reasons stated , I credit Robinson 's testimony both in this respect and generally QUEEN CITY COACH CO. 485 Robinson 's action or suggested that Robinson should have acted differently . Instead, he merely asked Robinson if Greyhound served Fort Mill as it admittedly did. When the Greyhound bus reached Charlotte, Kiser spoke to the driver who said he had come through Fort Mill but had picked up no passenger there. (It is undisputed that Mahler did not take the Greyhound bus.) Nothing in Kiser's testimony in- dicates that the Greyhound driver told Kiser that he was late going through Fort Mill. When Robinson returned to Charlotte the next morning , he asked Kiser if he had seen the boy and Kiser answered in the negative. It is undisputed that when Robinson told Mahler in Fort Mill that a Greyhound bus was due "in just a few minutes, " Mahler said "No," that he had a telephone number to call which obviously was his mother's number in Kannapolis , North Carolina. It is also undenied that Robinson told Mahler that there was no "use " to call because the Greyhound bus would arrive "in just a little bit." Mahler's statements make it clear that he was not interested in riding the Greyhound bus to Charlotte but in- tended to call his mother even before Robinson left him in Fort Mill. Mahler testified that he waited "close to a half an hour" and did not "see" the Greyhound bus and, impliedly, he never saw it. However, Respondent did not call the Greyhound driver to testify about when he was due to and did go through Fort Mill on January 2. Nor did Respondent introduce any Greyhound records to establish that a Greyhound bus was not due in Fort Mill at or about the time predicted by Robinson or that the "run" was not on or about on schedule on January 2. See also Kiser's testimony, supra. On the basis of the foregoing facts, I find that Robinson was correct when he told Mahler that a Greyhound bus was due in Fort Mill very shortly after he left Mahler there. I also find that, when Batts discharged Robinson , he knew about the Greyhound bus and that it was on or about on schedule on the evening of January 2. However, Mahler did not take the Greyhound bus to Charlotte. Instead, he called Mrs. Aistrop in Kannapolis. She was not home yet and he left word for her to call him at a pay station in Fort Mill. Mrs. Aistrop testified that she left the terminal before Robinson's bus did (he left at or about 8:05 p.m.) and stopped at a drive-in on her way home. She did not state what time she got home. Assertedly, she called Mahler and he told her that he got on the wrong bus and was "stranded" in Fort Mill. There is no evidence that Mahler told Mrs. Aistrop about the Greyhound bus to Charlotte or the 11:40 p.m. bus to Asheville. She asserted that her husband was away and she made arrange- ments for her brother-in-law to take her to Fort Mill and for the babysitter to stay late. She described the night as "dreary" when she pot to Fort Mill at or about 11 p.m. and said that it had "just began to sprinkle and was very cold." Mahler testified that, at some undisclosed point, he got his coat out of his luggage and he said that it started to rain just before Mrs. Aistrop arrived. Mrs. Aistrop testified that she "thought" she called the Company the next day (January 3) and first talked to a "Mr. Little," presumably Chief Dispatcher Little. On January 7, an insurance ad- juster visited Mrs. Aistrop and took statements from her and Mahler. The adjuster asked if Mrs. Aistrop intended "to do anything about the in- cident" and she replied that she thought she could. When she asked his opinion about whether she could do something "about it," the adjuster an- swered "that is whatever you think, that is not for me to say." About the middle of April, a parents' release was signed and sometime thereafter, the Company paid Mrs. Aistrop $100 which, she said, included $35 to $40 reimbursement for her expenses for having the babysitter stay late and the cost of the trip to and from Fort Mill. According to Mrs. Aistrop and Mahler, the former asked Robinson in Charlotte if his bus was going to Indianapolis and he said it was. Robinson testified that he thought that a woman put a boy on his bus and felt sure that the woman asked the time the bus would arrive at St. Petersburg, Florida. This question would have been consistent with the sign on the front of Robinson's bus which read Miami (see infra), although the passengers for St. Peters- burg would have to transfer to another bus some- where along the line. There is no logical reason why Robinson should have answered Mrs. Aistrop as alleged. On the con- trary, Indianapolis does not sound anything like Au- gusta, Miami, or St. Petersburg although Augusta could be read for Asheville if the printing was not very clear and the lighting was poor. There is no evidence that Robinson had ever driven the Indi- anapolis (or Chicago) bus and it is undisputed that he had been driving the Augusta run for 18 months. And, on the evening of January 2, he was not driv- ing the Indianapolis (or Chicago) bus but, as usual, his route was south and his destination was Au- gusta. It is clear from the testimony of Dispatcher Kiser that the sign on the front of Robinson's bus read Miami , which was consistent with the fact that the bus served Florida. Mrs. Aistrop herself agreed that the sign did not read Asheville but expressed the opinion that it read Charlotte and explained that she assumed that there had not been time to change the sign. As stated earlier, Mahler had made several bus trips between Charlotte and Indianapolis and Mrs. Aistrop asserted that the bus Mahler boarded on January 2 was in the lane in which the Indianapolis bus stood on the previous occasions. She also testified that the bus Mahler boarded was in the lane "they told me inside [the terminal] that the [Indianapolis] bus would load on." Cf. the 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of Dispatcher Kiser that he believed that the Chicago bus which , I assume , was going west, was "right beside " Robinson's bus. Mrs. Aistrop's testimony makes it clear that the conditions in the Charlotte terminal on the evening of January 2 were even more hectic than those described by Robinson . She mentioned the many buses , the "grand rush ," the "stampede of people" with "everyone ... running around trying to catch their buses." Perhaps , Mrs. Aistrop questioned the driver of the Chicago bus, which was "right beside " Robin- son's bus, and believed that he was the driver of the bus Mahler boarded . With the many buses and drivers too, I assume , she could easily have made such a mistake . It is also possible that she selected the bus ( with the Miami sign ) because it was in the lane she thought the Indianapolis bus had loaded in the past. ( Respondent does not claim that buses to or from certain points always load or unload in the same lane.) In addition , she claimed that she had also been told by someone inside the station that the Indianapolis bus would be in the lane Robin- son's bus was in. It may be that the person who gave her that information , who might have been an "extra " ticket agent working during the holiday season , was mistaken or she may have misun- derstood him. Thus, by her own admission, Mrs. Aistrop had two sources of "information " about the "right" bus for Mahler, aside from any driver to whom she may have spoken. The "correct" information which she believed she already had would make it less likely that she would question any driver. Moreover, her testimony that the sign on the bus read Charlotte is refuted by Dispatcher Kiser, a witness for Respon- dent. If Mrs . Aistrop 's testimony about the sign on the bus is unreliable, there is no reason to suppose that her testimony about her question and its answer is any more so . Her testimony about the sign and the question she allegedly asked the driver of the Augusta bus and his answer served to explain why she allowed her 15-year-old son to board the Miami bus. Although , for the reasons already stated, she could have been mistaken about the driver she talked to, the sign on the bus read either Miami or Charlotte and she certainly did not read one for the. other. It is true that Mahler corroborated his mother's testimony about her question and answer but he was a young boy who might do what she told him or whom she might easily persuade . Moreover, Mahler was not a wholly reliable witness for he, too, sought to explain why he did not get off the bus when, be- fore leaving the station , Robinson announced its southward destinations by claiming that Robinson did not make the announcement until the bus had left the terminal. See also his claim that he waited for a half an hour in Fort Mill without seeing the Greyhound bus. Indeed, he did not admit that he ever saw the bus . Cf. The facts set forth supra with regard to the bus ' schedule and the time it went through Fort Mill on the evening of January 2. Of course, Mrs. Aistrop began almost at once to consider making a claim which would be improved if the driver gave her correct information. By Au- gust, she had collected $100 damages and would be unlikely to fail to testify to something she said in the statement she made in January. At the hearing , neither Mrs. Aistrop nor Mahler claimed to recognize Robinson as the driver Mrs. Aistrop ( allegedly ) questioned. Having considered all of the facts set forth above and having observed the various witnesses while testifying , I discredit all testimony which seeks to establish that Mrs. Aistrop asked Robinson if his bus was going to Indianapolis and that he answered in the affirmative. In order to build "good will" the Company probably leads members of the public to believe that it accepts as true every statement they make in connection with a possible claim, particularly if the Company has been negligent in at least one respect. It does not follow, however, that it really believes everything it is told especially when it knows that the speaker hopes to collect damages. In fact, the Company says that it considers all of the facts in determining whether or to what extent a driver has been at fault. In the light of all of the facts , including Robin- son's driving record, the fact that his bus was not going to Indianapolis, and the fact that the sign on his bus read Miami , I do not credit Supervisor Batts ' implied claim that he believed that Robinson told Mrs. Aistrop that his was the bus to Indi- anapolis . Robinson obviously misread Mahler's ticket under less than perfect conditions but this does not mean that Batts believed that he also said that his bus was going to Indianapolis when it was going to Augusta. In considering Batts ' credibility and good faith I note that he asserted , without any supporting evidence , that it was discovered in May that the driving "logs" of Dale, the other alleged dis- criminatee , were "incorrectly drawn or falsified." (Emphasis supplied .) Respondent 's counsel stated that the logs were available but suggested that in order "to save time," their production be post- poned . They were never produced and no other company witness repeated Batts ' charge . Batts' willingness to make such an unfounded and so seri- ous a charge against one of the discriminatees cast doubt on his reliability generally . If he would make such an unwarranted accusation against Dale, I am unable to accept his unsupported word in any respect. In fact, Batts disclosed his willingness to exag- gerate, at the very least, by claiming that Robinson left Mahler in Fort Mill "to get home the best way" he could . Other examples of Batts' testimony are discussed elsewhere. Certainly , Robinson made a mistake when he QUEEN CITY COACH CO. failed to read Mahler's ticket correctly but it is un- disputed that this was far from being the first time that a passenger had found himself on the "wrong" bus. The record also makes it clear that in most cases, the drivers were not even reprimanded.25 It was perhaps partly for these reasons that Respon- dent chose to base its case against Robinson vis-a- vis Mahler primarily on the fact that he left Mahler in Fort Mill under the circumstances previously described. c. The Company's position re: the Mahler incident As indicated above, generally undisputed testimony concerning various incidents shows that it is not unheard of for a driver to find that he has a passenger on his bus who should be on a different bus. Furthermore, Supervisor Batts' testimony that "specific " instructions have been given to the drivers about what to do in such cases indicates that the Company's experience has convinced it that one will happen now and then. According to Batts , the drivers are told to take steps to protect the passengers and to get them going in the right direction on the first schedule which will take them to where they are going "as quickly as possible." At another point, Batts men- tioned only the latter instruction and it was this one he stressed. However, I assume that drivers understand that passenger safety must always be considered. When Mahler told Robinson in Fort Mill that he-Mahler-was on the wrong bus, Robinson could not get Mahler on the bus he was supposed to take . However, the Greyhound bus to Charlotte and the 11:40 p.m . bus out of Charlotte provided one solution and Robinson's efforts to get Mahler on both buses were wholly consistent with the Company's instructions that , in such situations, the driver should get the passenger on his way to his real destination as quickly as possible . It is equally clear that Robinson 's actions would have achieved that result if Mahler had followed his instructions. It is also obvious that Mahler would have missed the Greyhound bus if Robinson had taken him to Chester, the next stop, where there was a bus sta- tion. Nor is there any evidence that Mahler could have reached Charlotte in time to get the 11:40 bus if Robinson had taken him to Chester. Batts admitted that he did not think that Robin- son acted "deliberately" or "maliciously" or in order to "hurt" the Company but said that he con- sidered that Robinson's judgment was "very poor" and that he was guilty of gross negligence in leaving Mahler in Fort Mill. But Robinson's action should "' For example , Driver Dale testified that several years before , he left Charlotte at 6.30 p .m for Jacksonville , North Carolina He got off duty at Jacksonville at or about 10:15 p.m and , long after he had gone to bed, he was awakened by the dispatcher who asked if he had three tickets for Jacksonville , Florida He found the Florida tickets and learned that the pas- sengers were going to Jacksonville , Florida, not Jacksonville, North Carolina . He estimated that the passengers were delayed about 15 hours 487 be judged in the light of all of the facts not merely the time, the weather, Mahler's age, and the absence of a bus station. There is also the undisputed fact that the Greyhound bus was due in Fort Mill in a few minutes which meant that he would have to wait outside for only a very short time. If he had taken it, he would have been back in Charlotte long be- fore Mrs. Aistrop reached Fort Mill and in plenty of time to take the 11:40 p.m. bus to Asheville. Even if he was determined not to take the 11:40 p.m. bus, he could have gone back to Charlotte and called his mother from there. Kannapolis is much nearer to Charlotte than it is to Fort Mill. In addi- tion, Robinson's actions were completely in accord with the instructions given the drivers. See also Robinson's call from Chester which showed his in- terest in Mahler and in getting him on his way to In- dianapolis as quickly as possible. Batts admittedly did not balance Robinson's long record against his mistake for he testified that he felt that a driver with Robinson's long experience was more to blame than a less experienced driver. Batts could and I think would have used the reverse argument if the driver had been comparatively new. When asked on cross-examination a hypothetical question, i.e., whether his conclusion concerning Robinson 's Fort Mill decision would have been the same if Mahler had taken the Greyhound bus, Batts replied that he could not say what his attitude would have been if the facts had been different, that he acted on the basis of "what did happen." In short, Batts revealed that his charges against Robin- son were based primarily if not entirely upon the fact that Mahler failed to take the Greyhound bus. To ignore the Greyhound bus when assessing Robinson's conduct and the good faith of the Com- pany's charge that he was guilty of gross negligence in Fort Mill is like considering a charge of malprac- tice by a doctor without taking into consideration the undisputed fact that the medicine he prescribed would have improved the patient's condition and that the medicine failed to do so only because the patient did not take it. It is clear that Mahler's wait in Fort Mill was attributable entirely to his decision to prescribe for himself.26 Few employees work for 24 years without a few mistakes but Batts' testimony that Robinson's long record made him more to blame means that the longer and better a driver's record is the more like- ly he is to be discharged if he makes a mistake. I do not believe that this is the Company's policy. I also note that the Company showed no interest in effectuating a prompt settlement as it surely would have wanted to do if it had believed that Later, Batts spoke to Dale and told him that he should pay a "little more at- tention to the State " Batts' statement was the only "reprimand" Dale ever received because of the incident t" The above comments are limited to Respondent 's claims based on the Fort Mill aspect of the case and are inapplicable to Robinson's failure to read Mahler's ticket correctly 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robinson was guilty of "gross" negligence . The un- favorable publicity of a lawsuit would in itself have been a motive for settling Mrs. Aistrop's claim. And its failure even to speak to Robinson about the in- cident until January 17 is scarcely consistent with its claims at the hearing . Cf. Batts ' claim that he suspended Driver Dale while he investigated a rumor that had nothing to do with a passenger. See infra. If Mrs. Aistrop had sued the Company, the Respondent no doubt would have argued in mitiga- tion that, when Robinson learned about his mistake, he sought to get Mahler on a bus to Char- lotte and that Mahler's wait in Fort Mill and Mrs. Aistrop's trip were caused by Mahler's failure to take the Greyhound bus. Doubt is also cast upon Batts' credibility and good faith by his testimony concerning what Robin- son should have done in Fort Mill. According to Batts, Robinson should have called Dispatcher Kiser from Fort Mill and arrangements could have been made for a car for Mahler. But Mahler would have had to wait far longer for a car than he would have had to wait for the Greyhound bus.27 Batts also spoke of sending Mahler to "Gastonia or some place " although he did not explain why Mahler's situation would have been improved by sending him to "Gastonia or some place." Batts also indicated that if Robinson had called Dispatcher Kiser , the Indianapolis bus would have been instructed to wait for Mahler which Batts described as the "manner in which we usually try to handle" such situations. There is no evidence to support the latter claim and it is clear that the Indi- anapolis bus was due to leave Charlotte at or about the same time Robinson left. In my opinion, Batts' testimony about what Robinson should have done was prompted solely by his need to make a case against Robinson for he ignored the fact that special arrangements were not necessary because of the Greyhound bus. If Robinson had called Dispatcher Kiser from Fort Mill, there is no evidence that he would have told Robinson to do any of the things Batts sug- gested at the hearing. When Robinson called Kiser from Chester, Kiser did not criticize Robinson's decision or suggest that he should have acted dif- ferently. Kiser only asked assurance about the Greyhound bus which suggests, at the very least, that Kiser would have told Robinson to do precisely what he did which, after all, was consistent with the Company's instructions. Furthermore, I do not believe that Mahler would have followed any of Batts' suggestions, even if Robinson had made one or more of them, for he was clearly determined to call his mother and ask her to come for him. Certainly, he would have refused to go to "Gastonia or some place." Mahler's determination to wait for his mother to come for him makes it clear that he was not upset t' Batts' claim that Robinson should have sent Mahler to Charlotte by taxi also ignores the bus as well as the fact that the closing of the taxi stand, by the weather, the time, and the absence of a place to wait and he did not testify that he was. If the weather was bad, as Respondent implies, Ma- hler would certainly have taken the Greyhound bus to Charlotte even if he had been determined to call his mother from there. He obviously knew that it would take about 2 hours for Mrs. Aistrop to reach Fort Mill. The most likely explanation for Mahler's failure to go to Indianapolis for about 2 weeks is that Mrs. Aistrop wanted him in Kannapolis or Charlotte as a "witness" in connection with the claim she was making against the Company. Mahler did not ex- plain why he did not go to Indianapolis on or shortly after January 3 but, failing to do so, he ex- tended his Christmas vacation and his visit with his mother. After having observed Mahler as a witness, I credit Robinson's testimony that he believed that Mahler was 16 or 17. Mahler's manner was con- fident and I am sure that it was equally so when Robinson left him in Fort Mill with instructions about the Greyhound bus and the 11:40 p.m. bus to Asheville. d. The alleged incident on January 15 (1) Introduction According to Respondent, a 12-year-old Negro boy boarded Robinson's bus in Rock Hill, South Carolina, on the morning of January 15, 1966, and did not get off when the bus reached Charlotte at or about 8:30 a.m. Robinson drove the bus from Augusta, Georgia, and Respondent claimed that he failed to check it before leaving it to be taken to the shop by a service driver and, therefore, failed to see that the boy was asleep on the back seat. As a result, the boy was taken to the shop where buses are cleaned and any minor repairs are made before being returned to the station to go out again. The trip to and from the shop takes 20 to 30 minutes. Before leaving a bus at the end of a "run," the driver is supposed to check it to make sure that no passengers are still on board and to recover any personal property left behind by passengers. Chief Dispatcher Little, a witness for Respon- dent, testified that he saw Robinson "walk to the back of the bus" and "look" before he left it on the morning of January 15. William A. Goff, a witness called by counsel for the General Counsel, worked as a service driver in 1964 "under" Shop Foreman E. T. Blackwelder. Goff testified without denial that Blackwelder in- structed him that, before driving a bus from the ter- minal , he should check the bus and make sure that there were no parcels, pocketbooks, or valuables left on the bus or passengers, and [he] was instructed even to open the restrooms and to check those. upon which Respondent relied , means that Robinson would have had dif- ficulty finding a taxi QUEEN CITY COACH CO. Respondent 's witness claimed that the service drivers are not supposed to check the buses except superficially before driving them to the shop. How- ever, Shop Foreman Blackwelder did not deny that he gave Goff the instructions Goff attributed to him and Respondent called not one service driver to testify about their instructions. According to Blackwelder, the service drivers only look around and ask any one they happen to see to get off. After giving several evasive answers about the duties of these men, Blackwelder, their foreman, answered " 1 would suggest that you ask the service boy [sic], I don't know, sir." Such testimony is so contrary to commonsense that it raises a question at the outset, about the re- liability of Respondent's evidence generally con- cerning the incident which supposedly happened on January 15. See also Chief Dispatcher Little's equally improbable claim, "I don't think" service boys " have instructions as to what not to take over to the shop." At another point, Little testified that a service driver is "not supposed" to. take a bus with a passenger on it to the shop and Blackwelder agreed that the "boys " are not supposed to take a passenger to the shop " knowingly." It is logical that the Company would want the buses checked carefully a second time especially if, as it contends , taking a passenger to the shop is a very serious matter . A second check might also mean that a passenger would make connection with another bus he might miss otherwise and that lost property might be returned before its owners left the station. Goff's testimony is inherently creditable , it is un- denied, and I credit it. The testimony of Respon- dent's witnesses is improbable on its face and I dis- credit it. I find, therefore, that service drivers are required to check the buses carefully before taking them to the shop. Respondent did not call as a witness the service driver who drove Robinson 's bus to the shop on January 15 and there is no evidence that he was even told that there was a boy on the bus. The most logical explanation for Respondent's failure to call the service driver is that he would have testified that he checked the bus and that there was no boy on it. If he did not check the bus, he should have been reminded , at least, of his duty to do so. Respondent did not explain why it made no effort to call either the boy or Davis, the latter being the man who supposedly was at the station to meet the boy. Allegedly, Davis lived in Charlotte and the boy's mother worked for him . In addition, there was almost certainly someone in Rock Hill who could have testified about seeing the boy board the bus to Charlotte on the morning of January 15 but no such person was called as a witness . Obviously, Respondent had no complaint against Robinson un- less it could establish that the boy was on Robin- son's bus and , if he was on the bus , firsthand testimony was available to establish that fact. 489 Respondent also claimed that it is virtually un- heard of for a passenger to be taken to the shop. Thus, Shop Foreman Blackwelder, who began working for the Company in 1944, was asked the following question and gave the following answer: Q. Have you ... ever had passengers brought over to the shop before in that kind of situation, sir? A. I am trying to recall. I would not say over once or twice over the years that I have been there.... However, Blackwelder's testimony set forth below makes it very clear that such incidents are sufficiently frequent that he has developed a policy about how to handle at least those which involve sleeping children. In his words: I don't disturb them as a rule, because you wake them up and they are lost and they will cry and when they are asleep carry them back to the station first. [Emphasis supplied.] Although each passenger found in the shop, in- cluding each child Blackwelder did and did not wake up, was left on a bus by a driver, there is no evidence that any driver had ever been so much as reprimanded for leaving a passenger on a bus. Nor is there any testimony that the drivers are told that it is a serious offense to allow a passenger to be taken to the shop. There is no evidence that a trip to the shop en- dangers a passenger in any way and it is clear that the only adverse effect would be the resulting delay to him and to any one at the station to meet him. An examination of the testimony of the various witnesses also suggests that they were describing, knowingly or unknowingly, events which happened on some other date or at some other time of day. For example , in most cases, experienced counsel did not ask the witness to give his independent recollection of the date or the approximate date of the incident he was about to describe but included in his introductory questions the date and some other facts basic to the Company's version about what happened. Such questions avoided the danger that one or more of the witnesses would disclose that his testimony concerned an incident which happened on a different date. And, of course, such questions are not necessary if the witnesses have in- dependent knowledge about the date and other facts. As for the date, company counsel "directed" Foreman Blackwelder's "attention " to "a period last winter" and asked if he recalled getting a call from the dispatcher about "somebody [who] might have been left on a bus." When Blackwelder was asked later if he recalled the date on which a boy was found on a bus in the shop, he said only that it was "back in the mid-winter." The first question which company counsel asked Chief Dispatcher Little was: Mr. Little were you at the terminal on a Satur- day in the middle of January, when this- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [counsel then referred to the testimony of company witness Dees about his part in the events on January 15 ]. [Emphasis supplied. ] Company counsel also directed the "attention" of company witness Alfred Charles Dees to an "in- cident about the middle of January 1966" and also asked if Dees recalled an incident "of a boy being left on a bus after it was unloaded." Dees works in the shop office but occasionally acts as a service driver on weekends. As a result, his testimony that the incident he described happend on Saturday has little significance. Going back to Blackwelder, he admittedly could not recall the number of the bus, such as No. 6460, or the "run" it had just completed and he did not testify that he recalled the time of day or the day of the week he found a boy on a bus in the shop. If such incidents are as rare as Respondent claims and if this specific incident was brought to Blackwel- der's attention by a call from Chief Dispatcher Lit- tle, as claimed, it would seem that Blackwelder would have been able to recall, in August, the date or the approximate date of the alleged incident which he clearly was unable to do. Of course, he did not claim to know or even to have been told the name of the driver who brought the bus to Char- lotte. In short, Blackwelder's testimony, at best, establishes only that a boy was found on a bus in the shop "back in the mid-winter." In view of Blackwelder's admission that, "as a rule" he does not wake up sleeping children because they will cry, he obviously would have no reason to re- member one particular incident. However, Respon- dent's counsel solved that problem and "tied" the incident to the one about which Chief Dispatcher Little testified by asking if Blackwelder recalled getting a call from Little about "somebody" who "might have been left on a bus." Similarly, counsel "tied" the incident Little was about to describe to the one described by company witness Dees by referring Little to Dees' testimony and by asking Little if he was "at the terminal on a Saturday in the middle of January." Furthermore, the testimony of Little, Dees, and Blackwelder casts doubt on whether Little and Dees were describing the incident attributed by Blackwelder. Thus, both Little and Dees testified that, when Little called Blackwelder, the latter told Little that the bus was almost ready to return to the station. But Blackwelder testified that the bus had not been serviced when Little called. In fact, ac- cording to Blackwelder, Little called "while the bus was in transit" and asked him "when the bus got there to check and see if you have a passenger." (Emphasis supplied.) In addition, if Little called Blackwelder on any occasion when a bus was about ready to return to the station and asked him to check to see if there was a passenger on it, these facts make it doubtful that such incidents are very rare or that , when they do occur, they are regarded as very serious. If, as Respondent claims, finding a passenger on a bus in the shop is both very rare and very serious, the em- ployee who cleaned the inside of the bus and who would have seen the boy, if he was there, would surely have notified Blackwelder immediately. In the absence of such a report, the passenger would be returned to the station without Blackwelder's ever knowing that he had been in the shop. Of course, no rank-and-file shop employee testified that there was even a boy on a bus in the shop in the winter of 1965-1966 although, according to Dees, the bus which brought the boy from the shop had been "washed inside" and the windows and windshield apparently had been cleaned although the sides, front, and rear of the bus were "dirty." (Emphasis supplied .) Cf. Blackwelder 's testimony that the bus had not arrived when Little called and that Little instructed him to send the bus back to the station immediately, presumably without wait- ing until it had been cleaned. (2) Further testimony of Respondent's witnesses Shop Clerical Employee Dees testified that he and a regular service driver reached the station at or about 8:30 a.m. to drive two buses to the shop. Dees asserted that, at or about that time, Robinson brought the bus in from Augusta, which Dees described as Robinson's regular "run," and that he saw and recognized Robinson when the latter got off the bus. Dees also said that he saw a man named Davis, with whom Dees had been acquainted for 40 years near the bus. Dees did not claim that he saw Chief Dispatcher Little who testified that he spoke to both men , presumably Davis , and Robinson near Robinson's bus. The service driver who came to the station with Dees took Robinson's bus to the shop and Dees went to Little's office and was told that the second bus would be late. He then went inside the terminal where, by chance, he met Davis. According to Dees, Davis told him that he had come to meet a boy who was supposed to arrive in Charlotte on the 8:30 a.m. bus from Rock Hill and also said that the boy's mother worked for Davis and that the boy spends most weekends with his mother in Char- lotte. Dees then took Davis to Chief Dispatcher Lit- tle's office to help him find out anything he could about the boy. Although counsel asserted that Dees' testimony about what Davis told him was offered only to ex- plain his later actions and those of other company representatives, his testimony and the similar testimony of others provides many of the most im- portant and persuasive facts. As demonstrated in- fra, Dees' testimony about what Davis told him is much more detailed than was necessary to serve the limited purpose stated and, in effect, Dees and others were used to get into the record "facts" which would otherwise be missing because of Respon- dent's failure to call Davis and the boy. Even trained legal minds are not immune from being per- suaded subconsciously by "facts" which they read QUEEN CITY COACH CO. 491 "in the record ." Such persons, particularly those whose time is limited , may, understandably, recall only that the record contains testimony about such- and-such. The testimony of Dees is a good example and his hearsay testimony in particular has been referred to herein for it would be difficult to present a coherent and understandable account without it. However, the real vice in Dees' hearsay testimony and that of others is that, on its face, it provides consider- able persuasive "proof" of the basic fact which Respondent must prove, i.e., that the boy ac- tually boarded Robinson 's bus . Thus, Dees testified that Davis told him that the boy usually comes to Charlotte on weekends to visit his mother thereby making it probable that he came on Saturday, January 15. The same is true of Dees' testimony that Davis told Dees that he had called Rock Hill and was told by some unidentified person that the boy got on a company bus that morning. Such testimony not only adds to the impression that the boy came to Charlotte that Saturday, but also eliminates both the possibility that he rode the Greyhound bus which, Dees said, stops at Rock Hill at or about the same time Robinson does and the possibility that the boy came on a later bus perhaps because he overslept . As a matter of fact, even Dees did not quote Davis as saying that the boy al- ways rode a company bus or that he always arrived in Charlotte at or about 8:30 a .m. although this is the impression given by the record. Of course, there is no legal proof that Davis called Rock Hill but, assuming that he did, Davis did not tell Dees that the person to whom he spoke saw the boy board the bus. Perhaps he only knew what he had been told or he may have merely assumed the fact because the boy usually or often went to Charlotte for the weekend. Dees also testified that Chief Dispatcher Little told him that there was only one section (bus) from Augusta that morning which further strengthens the probability that the boy was on Robinson's bus. But, in this case, Dees' hearsay testimony was un- necessary because Little, who no doubt knew the number of sections, was a witness . However, he was not asked the number of sections coming from Au- gusta on the morning of January 15. Obviously, the boy could just as easily have boarded a company bus driven by someone other than Robinson if there were additional sections. Nor is there any evidence that no other company buses stop in Rock Hill at or about the time Robinson did although their point of origin was not Augusta. It is also possible that the Company and others operate short-haul or "local" buses in the Rock Hill section of South Carolina to provide transportation for commuters, at least dur- ing the morning and evening "rush" hours if the "through " buses are loaded. Actually, Davis' reported call to Rock Hill sug- gests that Davis knew that the boy did not always ride a company bus or the one that arrived at Char- lotte at 8:30 a .m. It also suggests that Davis knew that the boy occasionally did not come at all either because he was sick or because he wanted to stay in Rock Hill for some reason. Also, it is at least possi- ble that Davis made a mistake about when and on what bus the boy would arrive. But the main point is that the many "facts" Dees said that Davis gave him were not necessary to ex- plain the later conduct of Dees and others. That purpose could have been achieved if Dees had said only that Davis had told him that he was at the sta- tion to meet a boy who, supposedly, was on the Company's 8:30 a.m. bus but did not get off. The "explanatory" evidence rule is not meant to allow a party to put into the record many facts which tend, subconsciously, to prove a basic fact. It certainly is not meant as a substitute for calling available witnesses who know the facts and whose demeanor can be observed and who can be cross- examined . Certainly explanatory testimony is often related in a conclusionary way to the basic issue, as, for example, is testimony that A reported to B that C broke a piece of machinery, offered to explain B's later actions. But the rule does not mean that the party is permitted to strengthen its contention that C actually broke the machine by having A describe exactly what C did. In the instant case, however, the "details" were provided by the testimony of Dees and others about what Davis (supposedly) said and such testimony was necessa- ry only because of Respondent's decision not to call Davis and the boy as witnesses. But Dees did testify about what he saw and did. Although he allegedly saw Robinson get off the bus and saw Davis waiting nearby, Dees did not esti- mate how far away he was at the time. This is an important fact in determining Dees' general credi- bility and whether he saw what he said he saw for he admitted, "I can't see so good. I had an opera- tion," and also admited that he could not see well enough to say whether Davis was in the courtroom. It is clear, however, that he was not near enough to Robinson's bus on January 15 to speak to Davis and he did not walk over to Davis in order to do so. Nor did Dees mention having seen Chief Dispatcher Little who testified that he was at Robinson's bus although Little, the chief dispatcher and President Love's nephew, was likely to be a more familiar figure to Shop Clerical Employee Dees than Robinson who was only one of many drivers who come and go around the station. There is nothing distinctive about Robinson's ap- pearance; he does not have red hair and he is not unusually tall, fat, or thin. Uniforms tend to make men look alike especially at a distance, unless there is something about them which makes them easy to recognize or unless they are members of the viewer's family or his close friends. And a man with poor eyesight would find it even more difficult to distinguish one uniformed driver, who has no easily recognizable characteristics and is not a close rela- tive or friend, from another driver at a distance. I do not believe that Dees recognized even Davis at 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this time because of Dees' eyesight , the distance, his failure to go over to speak to him, and Dees' failure to see Dispatcher Little. It is probable that, when he talked to Davis later, the latter told Dees that he met the Augusta bus-if he did talk to Davis. At times , Dees himself seemed to be basing his identification of Robinson on facts other than his ability to recognize Robinson. Thus, he explained that the bus had come from Augusta and the Char- lotte-Augusta schedule was Robinson 's regular "run." Thus, he said at one point, "I just know" that it was Robinson because the bus had come from Augusta and that was Robinson 's regular "run," and , "when he got off, I just happened to notice that it was him." Dees did not explain how he knew that the bus had come from Augusta or how he knew which was Robinson 's regular " run" when there are so many drivers and runs and Dees does not work at the ter- minal but in the shop office . He stated these facts, I believe, because he was later told them either by Davis or some company representative . Cf. Dees' testimony that the bus which he later met and on which the boy returned from the shop was Robin- son's bus because "they said it was .... I can't say positively. " In view of the foregoing facts, I find that Dees did not recognize the driver of the Augusta bus. As a matter of fact, this finding is of little importance per se because I find that Robinson was the driver. But Dees ' willingness to testify that he saw something he did not see casts doubt upon his credibility generally. Of course, the date of the incident he described was incorporated in counsel's question and no one knows what date he would have given had he been asked the date on which he met Davis inside the station . It would require considerable courage for a rank-and-file employee to "correct" counsel knowing that management considered the incident important. Little likewise was not required to give the date so that, again , no one knows what date he might have given had he been asked. According to Little, he was near Robinson 's bus when it arrived and saw Robinson walk to the back and "look." Little saw a man, who will be referred to as Davis, who seemed to be looking for someone. When Davis apparently failed to locate the person he was looking for, he asked Little if the bus came through Rock Hill and Little told him it did. Davis then told Little that he was looking for a "little" Negro boy who was supposed to be on the bus but who had not gotten off. Little admittedly did not ask Robinson any specific questions about a little Negro boy who boarded the bus in Rock Hill and, supposedly, had not gotten off although Robinson was the only person in Charlotte (except the boy, if he was in the bus) who had or might have had ac- tual information. Little did say that he asked Robin- son if he picked up "anyone" in Rock Hill and Robinson said that he did not. I do not credit Lit- tle's testimony about what he asked Robinson and what the latter answered. Robinson had four Rock Hill tickets on January 15 and knew that Little could check his answer by looking at his report. More importantly, Robinson had no reason to answer falsely because he was unaware that one of his Rock Hill passengers was supposedly missing. I also believe that, if Little had asked Robinson any question, it would have been a specific one because the driver alone-in Charlotte-should have been able to provide information. I also believe that, because of the Mahler incident, Robinson would have noticed particularly a child traveling alone, would have looked at his ticket carefully, and would have made sure that he got off where he was supposed to. Similarly, Little did not ask Robinson to check his bus again , did not check it himself, and did not suggest that Davis check it. Little did not claim that he made any suggestion about how Davis might find the boy as, for example, by having him paged. And Little did not ask Davis for the latter's name and telephone number so that Davis could be notified if the boy was found or arrived after Davis left. I do not believe that Chief Dispatcher Little would have been so indifferent if Davis spoke to him in the vicinity of Robinson's bus . Allegedly, he was not indifferent when Davis came or was brought to his office shortly thereafter although Lit- tle did not explain the change in his attitude. At the later time , he allegedly promptly called Shop Foreman Blackwelder. It is clear from Dees ' testimony that nothing was said in Little's office, by either Davis or Little, which caused Dees to believe that Davis had talked to Little earlier. In fact, Dees obviously believed that Little did not know about the missing boy until Dees took Davis to Little's office. Although Dees supposedly acted as spokesman, Little did not men- tion Dees' presence and clearly implied that Davis was alone. A logical explanation for these conflicts is that Little either did not talk to anyone near Robinson's bus or that the man who came to his office was a different man. And Dees could have been describ- ing one visit to Little's office and Little could have been describing a different visit. As a matter of fact, Little's own testimony causes me to find that Little did not talk to Davis on any date near any bus . But his and Dees' testimony about recognizing Robinson served to "connect" Robinson with the affair , a necessary element in Respondent 's case against Robinson. But Respondent 's testimony about what followed after is even more contradictory and is even more difficult to reconcile with the one incident theory. Allegedly, at some point, someone decided for some unexplained reason that Davis should be taken to the office of Company Attorney Ray. Ac- cording to Dees, after Little talked to Blackwelder, Little left his office briefly and when he returned asked me ... how about taking Mr. Davis up- QUEEN CITY COACH CO. stairs to Mr. Ray's office, he wants to talk to him. [Emphasis supplied.J2tl But Little did not mention having said anything to Dees that day or even to having seen him. Nor did Little mention having talked to or seen Attor- ney Ray that day. The latter omission is particularly significant because Ray testified that Little (not Dees) brought Davis to his office and, while there, told Ray that Robinson was the "guilty" driver. Indeed, Ray testified that he had nothing to do with the decision to take Davis to his office and did not know that he was coming. Obviously, Dees knew that he took Davis to Ray's office and he probably did on some date. Ray likewise knew that Little brought a man to his of- fice on some date for he could not have mistaken Dees for Little, the latter being the chief dispatcher and President Love's nephew. But both Dees and Ray could have been testifying truthfully assuming that Dees took one man to Little's office on one date and Little took a different man to Ray's office on a different date.29 Davis, of course, knew whether his friend Dees or someone else took him to Ray's office but Davis was not a witness. If Ray did not send for Davis, who decided to take Davis to Ray's office and why? The record provides no answer . If any incident involving Robinson happened on January 15, Dees ' testimony makes it clear that Davis was taken to Ray 's office after the boy had been located , i.e., while Davis waited for the boy to return to the station. Cf. Ray's testimony, quoted infra, which indicates that he ex- pected no trouble after the boy was united with Davis and Ray's opinion would have been the same, surely, if he had known that Davis had been told that the boy was in the shop and would come back shortly. Davis, unlike Mrs. Aistrop , gave no indication at any time that he would cause the Company trouble and he did not do so. Even after Davis got no help from Little near Robinson 's bus, all he did was to go inside the station and, according to Dees, Davis went to Little's office only at Dees ' suggestion. Clearly, all Davis wanted from beginning to end was to find the boy and take him home. He filed no complaint and gave no indication that he would file one. Under these circumstances, there was no reason why he should be interviewed and, as it turned out, he asked to give and sign a statement.30 According to Ray, after Little brought Davis to Ray's office, Davis told Ray about coming to meet the bus and Ray prepared a one-page statement, dated January 15, which Davis signed in Ray's presence. After Davis left, Ray entered Robinson's name on the statement as the driver of the bus t" The latter statement is but another example of Respondent 's use of hearsay testimony about a "fact " unnecessary to explain later action t" Respondent does not claim that two men were brought to his office on January 15 with the same problem •"' It seems likely that persons had been at the station to meet the passen- 493 based on the information Ray said Little gave him while Davis was in Ray's office. But Dees testified that he took Davis to Ray's office after Little asked him to, saying that Ray wanted to talk to Davis. And if Little was in Ray's office that morning, he failed to mention either that fact or that he told Ray the driver's name. Dees testified that he meant what "they said," it was Robinson's bus when it returned from the shop, that the boy was on it, and he took him to Ray's of- fice. Ray admitted that once Davis and the boy got together, he "didn't really envision" that the in- cident would "give rise to any serious law suit." As Ray put it, once the boy was found, "I took it that that took care of the situation," that it "sort of ter- minated it really." In light of all the facts, including Attorney Ray's testimony that Little brought Davis to his office, the fact that the statement prepared by Ray is dated January 15 and states that the incident happened the same day is not conclusive. Among other facts considered is Ray's testimony that he noted Robin- son's name on the statement that day based on the information furnished by Little. But Dees' testimony and the absence of any testimony by Lit- tle that he so much as talked to Ray in January con- vinces me that Ray did not talk to Little that day and, if Ray's testimony is unreliable in that respect, I cannot accept it in others. In fact, the dates in the statement, all in Ray's writing, may be one of the reasons Davis was not a witness. I think it possible, even probably, that Davis was involved in some such incident on some date and he may even have signed a statement upon being assured that the date stated was correct. If he did not recall the date of the incident but only that it happened on Saturday, he might easily have accepted the Company's word about the date (January 15 was a Saturday) and that it was "better" to have the statement dated the same day. Or he may have accepted the Company's assurance that the statement correctly stated the facts and signed it without reading it or after read- ing only the "facts," i.e., without noticing the pur- ported date of the statement. The whole affair was of little importance to him after the passage of time and persons have been known to sign documents which gave rise to serious consequences to them- selves without reading them carefully. But most important of all, Davis did not swear to the truth of the facts set forth. However, if he were a witness , he would be under oath and the giving of an unsworn statement and testifying under oath are quite different things. As a witness, Davis would be less willing to accept the Company's word and would seek to establish the date independently as, for example, relating the time of the incident to a gers who had been taken to the shop in the past , including those Blackwelder did and did not wake up It is equally probable that some of those persons had asked questions of company representatives If so, there is no evidence that any such persons had even been taken to the office of the Company's attorney , interviewed , and asked to sign a statement 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date he did know. Or he might testify that he did not know the date but that he knew that he did not sign a statement the same day. He would also be cross-examined which, as Respondent well knew, involves a major risk if the witness is not telling the truth or is unsure of the "facts" about which he has testified to in response to careful questions on direct examination. The risk of calling the boy as a witness was as great or greater . Even on direct examination, he might volunteer information when answering coun- sel's questions and the danger of damaging answers on cross-examination would be even greater. In any event, Respondent decided for some unex- plained reason not to call either Davis or the boy and, as the repeated references to the fact indicate, I believe that it did so only because it did not want their testimony in the record. The courts hold, as I do, that a party who fails to call available and logi- cal witnesses does so because their testimony would hurt rather than help its case. Cf. Respondent's calling of Mrs. Aistrop and Mahler. My douts about the date of the Davis incident are based on the Company's own conduct as, for exam- ple, Little's inexplicable failure to question Robin- son on January 15 and to check the bus or have it checked again. Then, too, Ray did not mention the incident when, 2 days later, he interviewed Robin- son but dealt only with the Mahler affair. Similarly, Ray did not mention it in his January 20 memoran- dum to Batts and did not include the Davis state- ment among the attachments. See also Batts' state- ments when he discharged Robinson. If the incident happened on January 15, and in- volved Robinson, it is beyond belief that Respon- deent would have failed to question Robinson or to make any reference to it. According to Ray, when the boy was in his office, he gave a ticket stub to Davis who gave it to Ray. It is numbered and, according to Respondent, a ticket with the same number was found among those turned in by Robinson on January 15. On its face, the ticket stub is very convincing but examination reveals that its weight depends upon the credibility of Respondent 's witnesses. Again, the most significant facts are things which Respondent did not do. Ray, who described himself as an attorney employed by Respondent, did not refer to the stub or the boy's presence in the state- ment he prepared for Davis although he would have realized the importance of the stub as objective evidence. (If the statement was signed before the boy reached Ray's office, he could have prepared another.) In addition, if the boy was in Ray's office, he failed for some unexplained reason to prepare a statement for the boy to sign although Ray would have wanted a statement from the boy who alone knew what had really happened. With Davis (al- legedly) present to reassure the boy and to ask him to comply with Ray's request, the boy probably would have complied. In any event, there is no testimony that Ray tried to obtain his statement but failed. The statement would have included the boy's best estimate of the time he boarded a bus in Rock Hill, that it was a Queen City bus, that he had just arrived at the station on a bus on which he was the only passenger, and that he had his ticket stub and had given the ticket to the driver. The boy probably knew that he had been at the shop for, if Blackwel- der's check did not wake him up, it is likely that the person who cleaned the inside of the bus did inten- tionally or unintentionally. At least, there is no evidence that the boy had to be awakened when the bus returned to the station. But if the boy could not be persuaded to sign a statement and there is no evidence to that effect, Davis and Ray could have prepared and signed a statement about the time when the boy reached Ray's office. As a matter of fact, the ticket "stub" suggests, if it does not prove, that whoever had it had a one- way ticket for there is no evidence that he or any- one else detached it from a round trip ticket. On the contrary, the evidence indicates that the boy handed over everything he had. But if he was in Charlotte for the weekend only, he almost certainly had a round trip ticket because it would be less ex- pensive than two one-way tickets. (The fact that the ticket and stub are dated January 15 means only that the ticket was bought that day. It could have been used the next day or the next week. And a date stamping device can be changed.) I note also that Ray did not testify that he asked the boy anything, notwithstanding the fact that only the boy knew the facts. Nor did he quote the boy as having said anything. All Ray said was that the stub was "supposed" to be the one (attached to the ticket) the boy gave the driver that morning. By using "supposed," Ray not only conceded that he actually did not know that the boy used the ticket on the morning of January 15, but inadvertently suggested that he knew that the facts were not those claimed. Of course, all roads lead to the question of why, if the facts were those stated, Respondent did not call either Davis or the boy. If it had done so, it would have been unnecessary for Respondent to "prove" that the boy was on the bus by the round- about, pieced together method it used. But to return to the stub and the corresponding ticket Batts allegedly found among Robinson's January 15 tickets-the weight to be given them depends on the credibility of the two witnesses. Although Robinson turned in a number of Rock Hill tickets on January 15, his report did not call for and did not indicate the numbers on them. No one was present, not even Ray, when Batts al- legedly found the ticket among those turned in by Robinson and the reliability of Batts' unsupported testimony has been discussed previously. Indeed, Ray's identification of Robinson is based primarily on what Little allegedly told him but it QUEEN CITY COACH CO. 495 was Dees who took Davis to Ray's office and Little did not testify that he was in Ray's office at any time on January 15 or ever gave him any informa- tion about the identity of the driver. As for the stub which enabled Batts to find the ticket , Ray was so uncertain that he suggested that he preferred not to associate himself closely with that method of identi- fying Robinson . For example , Ray testified, "I am not just sure how I got the ticket " and admitted that he had " no firm recollection " about the date or the "day of the week it was that I discussed it with Mr. Batts." He explained that "it was possible " that Batts "could have received " the stub from him in order to locate the ticket , that it was likely or probable that Batts did so. But Ray added that he was "not sure about it." Also, Ray first testified that he "obtained" the stub "at the time I took [Davis '] statement" but he later admitted that his "recollection was not clear " about whether the boy was found before or after he took Davis ' state- ment. As for Batts' subsequent conduct, he testified at one point that he was "sure" he talked to Dispatcher Little about the January 15 incident. However, he testified at another point , " I believe I can remember talking to him about it." However, Batts was uncertain about the date and Little's testimony contains no reference to any such con- versation with Batts . Batts said that he "assumed" that Robinson had not checked the bus but did not explain why he did not know that Chief Dispatcher Little saw Robinson do so. But if Batts told the truth about talking to Little, it follows that the latter did not tell Batts that he had seen Robinson walk to the back of the bus and "look" before leaving it on January 15. Since this seems unlikely , it can only be assumed that Batts either did not talk to Little or that he was not being truthful when he impliedly denied knowing that Lit- tle saw Robinson check the bus. As Batts put it: I would assume that [ Robinson ] did not check [the bus], had he checked it, the boy would have been found, based on the information I had. However, Batts did not explain why his informa- tion was so incomplete that he did not know a major fact known to Chief Dispatcher Little when he-Batts-decided to discharge an employee with Robinson 's 24-year record with the Company. Although it was Batts' duty to know all the facts be- fore acting , he seemed to feel that all he needed to say was that he acted on the basis of the "informa- tion" he had. Cf. his similar statement when testify- ing about why he suspended Driver Dale on Janua- ry 11. In sum , when the hearsay portions of the testimony of Respondent 's witness are disregarded, it is seen that they knew very little which "proves" that the boy was on Robinson's bus on January 15 and much of what remains is contradictory, omits "facts" which it would logically contain, includes facts which are illogical, and depends on the credi- bility of the witnesses. One prime example is coun- sel's habit of including in his questions the date, which is one of the critical facts, and other helpful information. As noted earlier, such questions were unnecessary if the witnesses knew the date, inter alia, but they did avoid the conflicts which resulted when they were allowed to state the facts as they recalled them. Perhaps Davis and the boy would have been able to resolve the conflicts although they might only have increased the number. But the boy, at least, had the advantage of knowing if and when he boarded a company bus in Rock Hill and he probably knew whether or not he was taken to the shop. E. Respondent's Actions vis-a-vis Robinson after January 15 On January 17, i.e., 2 days after Robinson al- legedly left the boy on the bus, he was interviewed by Attorney Ray who also took a statement from Robinson. However, the only subject mentioned was the Mahler affair which occurred on January 2 and which had not been mentioned in the interim. At the interview, Robinson tried to tell Ray what happened on January 2 as nearly as he could. He told Ray that he could [have] carried the boy to Augusta to At- lanta, and sent him to Indiana but ... said [he ] figured it would be better for [Mahler] to come back [to Charlotte]. Robinson also explained to Ray: since [he ] had given the boy a dollar out of [his] pocket and told him to catch the Greyhound bus back he would get [to Indiana] a lot quicker by coming [to Charlotte] and catching the 11:40 out of here. In turn, Attorney Ray told Robinson, "I think that that was the best thing what you did." Although Ray testified that he told Robinson that he made a bad mistake and Robinson agreed, Ray did not testify that he told Robinson what the latter should have done in Fort Mill. Nor did he explain why he waited so long to talk to Robinson particu- larly if he believed Robinson had made a bad mistake 31 During the interview, Robinson asked Ray to give him the telephone number of Mrs. Aistrop, Mahler's mother, and for permission to call her and explain what happened. Ray refused, saying "the more you say about something like that the worse . it is sometimes." No witness for Respondent explained why nothing was said to Robinson about the Mahler in- cident until January 17 or why nothing was ever " I do not credit Ray's testimony about what he told Robinson and the latter 's reply for I do not believe that Robinson felt that he had made a "bad mistake " If the second part of Ray' s testimony is unreliable, there is no reason to believe the first part either I credit Robinson's testimony 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said to him about the alleged incident on January 15. On January 19, i.e., over 2 weeks after the Mah- ler incident, 4 days after Robinson supposedly left the boy on his bus, and 2 days after he was inter- viewed by Attorney Ray, Robinson was assigned to talk to R. V. Madison about arrangements for tours to take place in the spring and summer. While Robinson was talking to Madison, Batts walked by and Robinson asked Batts if he-Robinson-was going on "these trips" and Batts said "yes." Batts admitted that he told Robinson that "as far as" he-Batts-knew Robinson would be going. At the hearing, Batts explained his statement by saying that "as of that time," i.e., January 19, Robinson "was going" but the next day he received the information from Ray about the result of the latter's investigation and decided to discharge Robinson. However, he testified at the hearing that he knew about both incidents before he received Ray's report and did not claim that Ray's report contained any "facts" not known to him earlier. In fact, as set forth infra, Ray's report concerned the Mahler incident only. Attorney Ray also came by and Robinson asked him if anything more had been heard from Mahler and Ray answered in the nega- tive. Robinson commented that "maybe everything is all right " and Ray replied " maybe." After talking to Madison about the tours, Robin- son and Madison walked out of the office building, "out to the front of the street," and Chief Dispatcher Little and Dispatcher Jones were stand- ing at the door looking out. Union President Thompson, Union Secretary-Treasurer Young, and Union Vice President Wallace were in a car "di- rectly in front of the bus station" when Robinson and Madison came out and Robinson " motioned" to them to meet him "up the street." Because Chief Dispatcher Little and Dispatcher Jones were look- ing out the door and because the three union men were "directly" in front of the terminal , it seems probable that they saw Robinson signal to the union officers. More importantly, neither Little nor Jones denied having done so. As stated above, Batts explained that he decided on January 20 to discharge Robinson when he received the results of the investigation conducted by Attorney Ray. Respondent introduced into evidence a memorandum from Ray to Batts, dated January 20, which reads: I attach hereto statements of Marshall F. Robinson, C.E. Parker, Mrs. Nola M. Aistrop, Stephen E. Mohler [sic] and J. C. Kiser. This appears to be a case of gross neglect on the part of our driver and is passed on to you for your information and action. The above memorandum was received into evidence as Respondent's Exhibit 2(a). The at- tached statements were marked, identified, and received as Exhibit 2(b) through 2(e). Exhibit 2(b) is a communication from the insurance adjustor concerning the Mahler-Aistrop affair; Exhibit 2(c) is Mahler's statement; Exhibit 2(d) is Mrs. Aistrop's statement; and Exhibit 2(e) is Dispatcher Kiser's statement, dated January 19. If Ray in fact sent Batts ' and Robinson's state- ment, that statement was not offered into evidence. It is possible that it was not offered through inad- vertence but it is also possible that it was not in- cluded because it did not refer to the January 15 in- cident, an omission which Respondent would have difficulty reconciling with its claims with respect to what happened on January 15 and how serious Robinson's alleged offense was. The Davis state- ment was neither referred to nor attached. As stated supra, Batts testified that he did not de- cide to discharge Robinson until January 20, i.e., after he recieved the information from Ray which the latter had assembled as the result of his in- vestigation. Although Ray's report did not refer to the alleged January 15 incident, Batts clearly sought to leave the impression that Ray's report concerned both the Mahler and the January 15 in- cidents. This, of course, is another reason why I conclude that Batts was not a reliable witness. Batts sent for Robinson on January 20 and discharged him. When Robinson asked "what for," Batts replied that Robinson had a "row" with two passengers.32 The above finding is based on Robinson's credited testimony. If Batts had mentioned two separate incidents, as he claimed, I am convinced that Robinson would have asked what the "other one" was, i.e., other than the Mahler incident, because the testimony of Respondent's own wit- nesses shows that nothing was ever said to Robin- son about the one which allegedly happened on January 15. But perhaps the most persuasive reason for crediting Robinson is that Batts assertedly de- cided to discharge Robinson only after he received Ray's memorandum which concerned only one in- cident-the one on January 2. Of course, as of January 20, two people were "involved" in that in- cident, i.e., Mahler, the passenger, and his mother who had threatened to sue the Company. Robinson was discharged on Thursday, January 20. He testified that he believed that the pay periods run from the first to the 15th of the month. Respondent introduced no contrary evidence. When Robinson went back for his check, Dispatcher Jones told him about an inch or an inch and a half pile of union cards which Jones said had been turned in to Batts ' office. Jones did not deny Robinson's testimony and I credit it, Robinson attended the February unfair labor practice hearing and talked to Attorney Ray in part •" Although Batts denied that he used the word " row," when Ray was asked about whether the word was used , he replied, "no sir, I don't think so QUEEN CITY COACH CO. in connection with Robinson 's application for a job in the sheriff's office for which he needed a recom- mendation. Ray said that he had received a call and had stated that Robinson was a "good man" and gave him a "good" recommendation. Robinson thanked Ray. Robinson also asked Ray about the "chances" of the alleged discriminatees in that case and re- marked "you haven't got on me what you have one those boys." Ray did not comment on Robinson's second statement but pointed out that Robinson "thought the wrong way." Ray explained that he had a job once and his minister told him that he was "putting the job ... in front of his church." Ray's reply was that he had a family to think about and it "doesn't pay to think like other people." The above facts are based on Robinson's credited testimony. F. Factual Conclusions Concerning the Alleged Incident on January 15 Respondent called not a single witness who testified that a boy boarded Robinson's bus in Rock Hill on the morning of January 15, 1966. Nor did it call a single witness who testified that he saw a boy on Robinson's bus in Rock Hill, or in Charlotte sta- tion, or on the way to the shop, or in the shop or when it returned to the station. Dees admittedly did not know that the bus the boy allegedly came back to the station on was the one driven by Robinson but relied only on what "they said." Although Chief Dispatcher Little said that it was Robinson's bus he did not explain how he knew and I do not credit his testimony. This is not a case in which Respondent had to rely on circumstantial evidence because direct, firsthand testimony was not available . It is, rather, a case in which the Company decided for some unex- plained reason not to make any attempt to call either the boy or Davis, the man who allegedly was at the station to meet the boy and who, allegedly gave a statement to Attorney Ray while he waited for the boy to be brought back from the shop. Although these two, the boy in particular, were the only witnesses referred to in the record who knew what happened on January 15, if anything, Respon- dent ignored them and relied instead on the testimony of several witnesses who described vari- ous events which were made to appear to have hap- pened on January 15 largely because Respondent's counsel asked them about what happened that day. Because the boy was only 12 years old it may be that one or more persons saw him board the bus in Rock Hill-if he did so. If so, Respondent called none of them. As indicated earlier, Respondent 's evidence ap- pears to prove more than it really does. One reason is counsel's habit of supplying the date and another is that Dees' testimony about what Davis told him supplies many of the "facts" which make the whole story plausible . See also Dees' claim that Davis told 497 him that he called Rock Hill and was told the boy boarded a company bus. It is easy to forget the limited purpose for which the hearsay testimony was offered and easy to remember only that the record contains testimony about Davis' coming to the station to meet the boy who was supposed to be on the bus from Rock Hill and that the boy comes to Charlotte on weekends to visit his mother who works for Davis. It was unnecessary for Dees to tes- tify about such details if Respondent's only purpose was to explain the later action of Dees and Little. It is true that these "facts" improve Respondent's case but they are not facts in the legal sense. As stated earlier, I do not believe that Respon- dent would have relied on the secondhand testimony of Dees, et al., if there had not been a substantial reason why it preferred not to rely on the firsthand testimony of the witnesses who knew the alleged facts. Nor can I ignore counsel's habit of incorporating the date in his questions which is unnecessary if the witnesses knew the date. Moreover, counsel's habit avoided the danger that one or more of them might not give the date as January 15 or the time as 8:30 a.m. Proof that the Company's witnesses might dis- agree on this point is provided by the many con- flicts in their testimony when they were left to testi- fy unaided. But the date and time were too critical to risk conflicts in the testimony. Of course, Blackwelder did not pretend that he knew the date; he would say only that he found a boy on a bus in the shop in the "mid-winter" after he got a call from Little even though it would seem that he could remember the approximate date if finding a passenger on a bus in the shop was as rare as he, at times , claimed. Of course, he testified that Little called while the bus was "in transit" to the shop while Little and Dees testified that Blackwelder said that the bus was almost ready to return to the station. If Dees took a boy to Ray's of- fice, he knew that he did. And if Ray knew that Lit- tle brought a boy to his office, I believe that Little took a boy to Ray's office on some occasion. And Dees testified that he took Davis to Ray's office because Little asked him to, saying that Ray wanted to talk to Davis. However, Little did not mention having talked to either Dees or Ray and Ray made it plain that he had nothing to do with the decision to bring Davis to his office. There are too many conflicts of this type to brush them off as meaningless. Nor can I brush off as meaningless Respondent's apparent unwillingness to let Robinson know that he supposedly left a boy on his bus on January 15. First, there was Little's failure to ask Robinson about the boy after Davis allegedly explained his problem to Little. Second, there is Little's failure to have the bus checked again which is in such sharp contrast to his allegedly prompt action when Davis came or was brought to his office. Third, there is Ray's unexplained failure to mention the incident when he interviewed and took a statement from 354-126 O-LT - 73 - pt. 1 - 33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robinson 2 days later. Fourth, there is Ray's failure to refer to the incident in his January 20 memoran- dum to Supervisor Batts which, Batts testified, caused him to decide to discharge Robinson. Fifth, and finally, there is Batts' statement when he discharged Robinson. For the reasons stated supra, I do not believe that the boy gave his ticket stub to Davis and in Ray's office on January 15 and that Davis gave it to Batts who found the matching ticket among those turned in by Robinson that day. See also Respondent's un- successful attempt to establish that the service drivers are not required to check the buses care- fully and its equally unsupported claim that such in- cidents are both very rare and, when they do occur, they are regarded as very serious. Cf. Blackwelder's testimony that " as a rule" he does not wake the passengers up because they are lost and will cry. Having considered .the entire record including the facts or lack of them just summarized, I am convinced and I find that Robinson did not leave a boy in his bus on January 15, 1966. Cf. Queen City Coach Company, 159 NLRB 204, in which the Board found that an investigator, who was hired at least in part by Supervisor Batts, employed a young woman to try to persuade the union officers to allow her to ride "free," that he made it clear that the Company was not interested when a nonunion driver was guilty of the same offense. In fact, Attor- ney Ray admitted that the Company did not discipline the nonunion driver because "it was felt" that that particular driver had made a "mistake" and for this "or any other number of reasons" he would not allow the young woman to ride free again. G. The Suspension of Rayford Dale on January I 1 Rayford Dale began driving for the Company in March 1959. He was one of the 12 drivers listed in the Union 's January 7 letter as asking that it an- nounce their support of its campaign . On January 11, Dale was called to the office of Supervisor Batts who suspended him indefinitely . Batts told Dale that he had been "involved in an incident with two women on the parking lot with another employee." Dale asked Batts who the other employee was sup- posed to have been and Batts named Jim Davis, a driver for Carolina Scenic . Batts said that he was not interested in Dale 's private life but added that, when it involved another employee , " it was time for him to step in." Batts did not tell Dale the exact date on which the incident was supposed to have occurred but said that it was in December 1965.13 Dale said he knew nothing about any incidents in December 1965. " The above finding is based on all of the testimony and the absence of testimony about the date mentioned by Batts In an affidavit dated Februa- ry 18, Dale stated that he told Batts that he, Mrs Dale, and Davis met on December 6 This incident is not to be confused with the one Batts referred to and which admittedly did not happen Of necessity, the Mrs Dale meet- ing happened after the incident mentioned by Batts In an affidavit dated Supervisor Batts admittedly suspended Dale be- fore he talked to Davis and did not reinstate Dale promptly after he talked to Davis even though the latter, like Dale, denied that there had been any in- cident involving two women. Nor did Batts explain why he believed Davis but not Dale. Both Dale and Davis testified about a meeting on the parking lot with Mrs. Dale although there are substantial differences in their testimony about what was said. The parking lot on which the drivers rent space is owned by the Company and is located about a block from the Charlotte terminal. There is no evidence that it is open to the public or that any- one else was present when the three met and Dale's testimony shows that it happened at or about 9 p.m. when it would be dark in both December and January. Dale testified that he told Batts that Mrs. Dale asked Davis if he and Dale were on the lot with two women saying that, if not, she was sorry she said anything to him about it. Davis replied that he knew nothing about any such incident. Dale said nothing during the conversation but, when it was over, he told his wife, "Let's go." Dale denied that Mrs. Dale told Davis that Dale had told her that the two men had been with the women and denied that he told Batts that Mrs. Dale made any such state- ment. According to Davis, Mrs. Dale ran up to him, asked if he was Davis and said, "I guess you know you broke up my home" to which he replied, "No, I didn't." Mrs. Dale told Davis, "well, you did" and explained that Dale had told her that he and Davis had been "sitting down there in [Davis'] car." Davis assured Mrs. Dale that nothing of the sort happened and Mrs. Dale asked Dale three or four times if Davis was telling the truth but Dale refused to answer. Finally, Mrs. Dale said she would "just kill herself," jumped in the Dale's car, and the Dales left. There is not a scintilla of evidence that would ex- plain why Dale would tell his wife that he was guilty of something of which he was wholly innocent. And Davis' description of Dale's conduct is the complete reverse of what one would expect. Thus, he would have it believed that Dale repeatedly refused to confirm Davis' denials and by remaining silent sought to convince Mrs. Dale that he was in fact guilty. In short, Davis' testimony is so incredi- ble on its face that I discredit it. N.L.R.B. v. Rob- bins Tire & Rubber Company, Inc., 161 F.2d 798 (C.A. 5). Dale's testimony, on the other hand, has the ring of truth and I credit it. Moreover, Davis' account of the meeting attributes to Dale such ex- traordinary conduct that I do not believe that Batts automatically accepted it as the truth. June 7 , Dale stated that Batts "identified " the date as January 5. Batts avoided testifying about the dates but did not deny Dale's testimony about the date Respondent 's witness Davis was not asked the date of the Mrs Dale meeting but, as in the case of the alleged incident on January 15, counsel questioned him about an incident " back some time around the first of this year " QUEEN CITY COACH CO. Dale did admit that he said nothing during the conversation between Mrs. Dale and Davis but I as- sume that he wanted to end the scene as quickly as possible and one of the best ways to do so was to avoid getting into an argument with his wife. Furthermore , he had no need to say anything for Davis was speaking for him and it was Davis' word that Mrs. Dale wanted. Davis testified that Batts told him that the rumor about the two women could have caused Dale to lose his job if he had not gotten it straightened out. Batts has worked for the Company for many years and had supervised up to as many as 350 drivers for more than 7 years . Because I assume that the con- duct of busdrivers as a group is no better and no worse than that of any other group of employees, I do not believe that this was the first rumor of "mis- conduct" Batts had heard or that the misconduct alleged was the "worst" ever attributed to drivers supervised by Batts. Even if Dale and Davis were guilty, their miscon- duct occurred on their own time , away from the station, and under circumstances which meant that it would not attract the attention of the public. Nor do I believe that the drivers named in various ru- mors are automatically discharged unless they can convince Batts that the rumors are unfounded. Cer- tainly, there is no evidence to this effect and there is no evidence that Batts had in the past even in- vestigated any rumor no matter how serious the al- leged misconduct. Cf. Batts' failure to so much as speak to Robinson , much less to suspend him, while the Mahler incident was being investigated. On the evening of January 18, Dale was notified that he had been assigned a "run" but was told to see Batts the next morning . When Dale did so, Batts said that he had completed his investigation and Dale was back at work "unless something further turned up." Batts testified that he suspended Dale until he could investigate a rumor . Although Dale admit- tedly lost a week's pay, Batts insisted that Dale's suspension was not disciplinary. As Batts put it: I did not consider it a disciplinary action, because I felt like [Dale's] suspension for the investigation would cover anything due to the loss of time. And the disciplinary action that would have or could have been taken. [sic] Batts' statement just quoted is difficult to un- derstand but it is scarcely consistent with his claim that Dale's layoff was not disciplinary. Further- more, he sought to establish that he had sufficient cause for his action . Of course , Batts' testimony in this respect is another reason why I do not credit his testimony generally. In an effort to explain why he suspended Dale but not Davis although Davis was also allegedly with the women , Batts did not rely , at the hearing, on the reason he gave Dale. Instead , he stated, "ac- cording to the information I had [Davis ] was not in- volved, in other words, he was being accused of something, that Mr. Dale had made the accusation 499 . And I couldn't determine in my investigation that Mr. Davis was involved other than he was being accused of something." Batts' investigation consisted of talking to Dale and Davis and choosing to believe one but not the other. Of course, Davis was not "involved" with two women but neither was Dale. There is no evidence that the Union was seeking to organize the drivers of Carolina Scenic, Davis' employer. In addition, the testimony of Davis as well as Dale indicates that Batts was talking about the two women not the Mrs. Dale meeting and suggests that Batts learned about the latter incident when he talked to Dale on January 11. Thus, Davis testified that Batts told him that the rumor could have caused his discharge if he had not been able to prove that it was without foundation. Such a statement is wholly inconsistent with Batts' claim that he suspended Dale because he falsely accused Davis. In other words, it discloses that, in January, Batts purport- edly was concerned with whether or not the two drivers were on the parking lot with two women. The fact that Batts gave one explanation for his action in January and a different one at the hearing has been considered in determining his credibility and will be considered in determining his motive for suspending Dale. Assuming, arguendo, either that the rumor was true or that Dale had falsely accused Davis, Davis clearly was unconcerned until Batts spoke to him. Actually, he probably was responsible for any story about his conversation with Mrs. Dale for he was the only one of the three who could view the in- cident objectively. He would have been less than human if he had not told about Mrs. Dale's visit to the parking lot. Davis had no reason to worry lest this interesting or amusing incident became known to management because Batts had never before in- vestigated any similar story. For the reasons set forth above, I find that Batts did not suspend Dale and conduct an investigation either because it was rumored that he and Davis had sat in the latter 's car on the parking lot with two women or because Dale allegedly "accused" Davis of having done so. H. The Discharge of Rayford Dale on May 30 As set forth supra, in early February, i.e., about 2 weeks after Dale returned to work following his suspension , he refused the Company's offer to get him excused from jury duty if he would sit on the Company 's "side" at a Board unfair labor practice hearing. In March or April, Dale overslept and, when he woke up, it was too late for him to reach the ter- minal in time to check his bus, take up the tickets, and leave at 3:55 a.m., the scheduled time. He called Dispatcher Huggins, explained what had hap- pened and Huggins arranged for Driver Linker to take the bus to Belmont Crossroads, a distance of 10 or 12 miles where Dale would be waiting. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Linker was the driver who had brought the bus into Charlotte and, according to Respondent's wit- ness, Dispatcher Huggins , Linker said he would "be glad" to go to Belmont Crossroads. Dale took over at that point and Linker drove Dale's car back to Charlotte. Although Batts testified that Dale was "warned" by "the dispatcher" that he had violated a rule and that it "could not happen again," Batts did not identify the dispatcher and did not claim to have been present when warning was given. And Night Dispatcher Huggins did not testify that he gave Dale any such warning and there is no evidence that Huggins reported the incident to any of his su- periors. When Dale overslept again in early May, Huggins did report it but did not refer in his report to Dale's having overslept in March or April. (See infra.) Nor did Huggins testify that he ever told Batts about the first incident. Furthermore, Dale's testimony concerning two statements he gave the Company later, one about oversleeping and one about a mailbag incident, indicates that only the May 5 oversleeping incident was covered. (See in- fra.) See also Batts ' statements to Dale when he discharged Dale on May 30. Having considered the foregoing facts, I do not believe that Batts knew, when he discharged Dale, about the first oversleeping incident and his testimony implying that he did and about the warn- ing given Dale at that time are additional reasons why I consider his testimony unreliable. On May 2, Supervisor Batts told Dale that he would like to say a few words to Dale. Batts started off by saying that he knew that Dale's name was listed in the Union's January letter, that if Dale "felt like" he was "man enough to come to the of- fice, and admit that [he] had made a mistake, the welcome [mat] was spread" and Batts would "guar- antee . . . that nothing would happen to [Dale]." When Dale replied that he did not "feel" that he had made a mistake, Batts patted him on the back and told Dale "to remember" what Batts had said. Dale overslept a second time on May 5, the only difference being that Dispatcher Huggins called Dale. The procedure which followed was the same as in the first case, i.e., Driver Linker drove the bus to Belmont Crossroads where Dale took over. On this occasion, Dispatcher Huggins referred to the incident in a report which he sent to President Love. Cf. Night Dispatcher Kiser's testimony that the report in which he mentioned the Mahler in- cident was sent to Chief Dispatcher Little. On the morning of May 19, there was a mailbag on the bus Dale brought in from Asheville and which Dale was supposed to turn in promptly to the office of Assistant Treasurer S. J. Little.34 Dale took the mailbag with him to the drivers' room, which is in the basement of the company office building just behind the terminal, while he made out his report. He admittedly left the mailbag in the room, his ex- planation being that he was "sort of in a hurry" to get home because he had an appointment with a doctor for his little boy. When Dale got home, at or about 9:30 a.m., there was a message to call Chief Dispatcher Little. Dale called Little who asked if he had taken a mail- bag off his bus and who said that he had already placed some long distance calls trying to locate the bag. Dale told Little that the mailbag was in the drivers' room and stayed on the telephone until Lit- tle checked the room and came back to say that the bag was there.35 S. J. Little, who has been assistant treasurer for 18 years and to whose office the drivers deliver the mailbags, was asked the following question by Respondent's counsel and gave the following answer: Q. Now, are the regulations with respect to [the driver's responsibility re mail bags] en- forced ... ? A. I just don't know. On cross-examination, Little first testified: Q. Now, I believe you stated, sir, in your testimony on direct that this was the only mail bag incident since you had been there? Only mail bag incident that had ever happened since you had been there? A. As far as I know, yes. Q. Sir. A. As far as I know, yes. [Emphasis sup- plied. ] However a few minutes later, Little testified: Q. This is the only time that a mail bag has ever been misplaced in your 18 years ... ? A. That wasn't the question. He asked me, if I had had other incidents of such as this [sic] come up. And I answered him no. Q. In other words, you are limiting your answer solely and simply to a situation where a mail bag is left down in the drivers' [sic] room? A. I just answered his question. Q. You were limiting your answer by saying as far as you know, during your 18 years, then this was the first time that a driver ever brought the mail bag into the building and left it in the driver 's room, is that correct? A. That is correct. The drivers ' room is reserved for drivers and is " The bags contain reports, tickets, and cash 's The above findings are based on Dale 's credited testimony According to Chief Dispatcher Little, Dale said that he did not know what he had done with the bag and mentioned the drivers' room only after Little asked where Dale had gone There is no evidence to contradict Dale's statement that he did not "go in a bunch of places" that morning but only went into the drivers' room and it is unlikely that he went anywhere else because he was in a hurry to get home Under these circumstances , I believe that he would know the one place he went , would know that he must have left the bag there, and would have told Little that it was in the drivers ' room Because of statements in his two affidavits about matters other than the dates Batts mentioned when he suspended Dale, I do not think that Dale was a wholly reliable witness and credit his testimony only when it is more logical in view of all of the facts QUEEN CITY COACH CO. 501 not open to the public. However, Dale admitted that he had seen former drivers in it "just coming around talking about old times occasionally." Out- siders, such as taxi drivers or telephone men, some- times enter other, nearby areas of the basement but the basement generally must be a fairly safe place because tires are stored there. Members of the public who enter the building to obtain ticket refunds or to inquire about lost baggage go to the Company's offices upstairs. Unquestionably, Dale violated a rule by failing to turn in the mailbag and his leaving it in the drivers' room entailed some risk that it would be stolen. But Batts, as in the other cases, was not content to rely on the actual facts but sought to exaggerate the danger by insisting that it was worse to leave the mailbag in the drivers' room than to leave it on the inside of a bus. Cf. S. J. Little's testimony that the Company certainly does not want a mailbag left on a bus . Obviously when this happens, the new driver does not know that there is a mailbag on his bus which means that it can travel miles without anyone to look after it and without anyone knowing where it is. In addition, a driver must keep his eyes on the road and can pay little attention to the activity of passengers who routinely place their luggage in the overhead racks when they get on and take it down when they are ready to get off. The drivers have to load or unload luggage from the underneath lug- gage compartment at unscheduled stops and small stations. At rest stops, the buses may be closed at least part of the time but some passengers may remain on the bus on such occasions. And if the bus is crowded and passengers have to stand, they could tamper with a mailbag without attracting the driver's attention. In short, I cannot find that Batts believed in good faith that a mailbag left on a bus bound for Chicago, Miami, or New York was safer than one left in the drivers' room. See also his claim that Dale's suspension in January was not discipli- nary and his unsupported statement that Dale's driving logs were "falsified." Furthermore, Batts first explained that he did nothing about Dispatcher Huggins' May 5 report that Dale overslept until May 19 because he was out of town, the clear implication being that Batts was away continuously during those 2 weeks. (See also Batts' statement to Dale set forth infra.) Later, however, Batts admitted that he was in his office one-third of the time and in view of his general un- reliability and the absence of records, I think it like- ly that he was there more than he was away. He also admitted that when he is in his office, he tries to look over the accumulated mail and memoranda and that a memorandum forwarded from President Love's office would "catch his eye" particularly. Batts also testified: In investigating these matters [Dale's over- sleeping and the mailbag incident, it was discovered] that Mr. Dale's driving logs were incorrectly drawn or falsified. As noted above, there is not a scintilla of sup- porting evidence for such a charge although coun- sel stated "We have the logs and can secure them" but "to save some time perhaps we can pass over that at the moment ...." Even more importantly, Batts' testimony dis- closes that Respondent investigated every aspect of Dale's record although oversleeping and leaving the mailbag in the drivers' room created no questions about his record generally and certainly did not call for an examination of his driving logs. It is obvious that the Company was looking for anything it could use to "prove" that Dale was discharged for cause. But if Dale's actual mistakes were in fact con- sidered sufficient cause, why was it considered desirable or necessary to look for other hitherto unknown reasons it could also give? Cf. Respon- dent's open warning that it could always find something for which to discharge a prounion driver. When an employer feels it necessary to exag- gerate the facts or fabricate them as the Company did in the case of Robinson, it reveals its own awareness that its real reason is something entirely different and its subconscious belief that the real reason will be apparent unless it asserts stronger or additional reasons for its action. Batts sent for Dale on May 19 and Dale went to Batts' office the next day. Batts told Dale he had two "serious" matters he wanted to discuss with Dale, one being his oversleeping and the other being the mailbag incident. He then sent Dale to Attorney Ray's office and Dale gave two state- ments, one about each incident. Before sending Dale to Ray's office, Batts told Dale not to drive until he heard from Batts and also told Dale that he did not know that Dale had overslept "until yester- day," saying that he had been out of town for "a couple of weeks." On May 30, Batts discharged Dale because his work was unsatisfactory. The Board hearing on the Union's representation petition was held on June 1. Having considered the entire record including Batts' various exaggerated or unfounded state- ments, his statement to Dale in early May and Dale's reply, the Company's attitude toward the drivers' union activity, and the hearing scheduled for June 1, which meant that an election would be held shortly, I find that Batts did not discharge Dale for the reasons he gave at the hearing. To put it otherwise, I am convinced that Dale would not have been discharged because of his two mistakes if he had followed Batts' suggestion in early May that he admit his mistakes'in supporting the Union in which case Batts would guarantee that nothing would happen to Dale. 1. Analysis and Conclusions With Respect to the Alleged Violations of Section 8(a)(3) and (1) of the Act 1. Introduction As the Court of Appeals for the Fourth Circuit 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has pointed out because direct evidence that an employer has discriminated against an employee because of his union activity is rarely obtainable, the Board may rely on indirect or circumstantial evidence. Hartsell Mills Company v. N.L.R.B., 111 F.2d 291 (C.A. 4). Although there is an occasional case in which a management representative has stated that an em- ployee was discharged or otherwise penalized because of his union activity, in most cases manage- ment claims that it acted because of something the employee did or failed to do. Furthermore, in many such cases, the employee was guilty of the mistake with which he was charged. However, this fact does not prove conclusively that he was discharged for that reason alone or even primarily for as was pre- dicted in the instant case "something" can usually be found to be used as an excuse to discharge an employee . In short, there are many cases in which the Board has found and its finding has been af- firmed by a court that the employee's mistake was but an excuse or "pretext," the real motivating reason being his union activity. Of course, each case must be decided on its own record and the employer's actions must be judged in the light of all of the facts . These include, inter alia, the company 's attitude toward union represen- tation , its threats , if any, of reprisals against em- ployees for engaging in union activity, whether or not it has sought to defeat the union by engaging in other conduct proscribed by the Act, the timing of the discharge, i.e., whether it was closely related in time to a critical stage or event in the union's cam- paign, the union's chances of success, the nature of the employee's mistake or misconduct, whether or not the employer gave a straightforward , unexag- gerated account of what happened, the company's usual reaction to similar mistakes or misconduct, and the employee's past record. In other words , it is not enough that the employer could have discharged the employee for cause. The question, rather, is whether he in fact discharged the employee for cause or because of the latter's union activity and in order to discourage other em- ployees from engaging in union activity , including voting for the union in a Board-conducted election. If Congress had intended that the Board should find that an employee was discharged for cause because the employer could have discharged him validly, it would not have required that the Board's finding be based on the record as a whole. By so providing, Congress recognized that few employees are so perfect that their employer can not find "something" for which to discharge them if he is looking for an excuse to rid himself of prounion employees and to bring home to other employees the risk involved in seeking to obtain union representation. In fact, in the instant case, the Company stated openly that this would be the method it would use to combat the union campaign and to defeat it if and when the Board conducted another election. Thus, it is undisputed that when Fayetteville Dispatcher Horne predicted that Driver Sessoms would be discharged, he brushed off Sessoms' claim that he was complying with company rules and as- sured Sessoms that "they would find something on [him]." See also Sessoms' similarly undenied testimony that when he refused to turn in his union card in April and told Horne he would vote for the Union , Horne answered "They will find something to get rid of you [for] before the election." In addition, on more than one occasion Respon- dent stated that it would discharge prounion drivers. Thus, about a month after the Union's Au- gust 1965 letter, Dispatcher Huggins warned Driver Robinson that "a lot of good men" were "going to get hurt in this thing" and at or about the same time Supervisor Batts remarked to Driver Sasser that "the Union wouldn't be so bad after" the Com- pany "[got] rid of all of the hotheads." Then, after the Union's January 1966 letter, which announced it was making progress and would file a petition for another election , the threats and promises became more numerous. For example, Fayetteville Dispatcher Horne warned Driver Sessoms that he would "have to go" and Fayetteville Shop Foreman Barkley told Sessoms that he had done "a lot" to keep Sessoms as an employee but that he "would do just as much now to get rid of [Sessoms]." After Driver Lowder joined the Union, Dispatcher Jones told him that he thought Lowder was "a better man than that" and commented that some years earlier there had been a union campaign at Carolina Scenic (which had merged with Queen City) and "the man in charge told [the employees] that if they wanted to keep their jobs, they would have to forget about the Union or else they would be replaced." In April, Dispatcher Horne warned Driver Simmons that a number of drivers who had not given their union cards to management "would be going" within a month or 6 weeks. Also in April, Horne told Driver Simmons that it was "better to repent" than "to get killed" and pointed out that, if the Company could "beat" the Labor Board, it could "beat a little old driver." On the other hand, during the same period, Respondent promised benefits to employees if they abandoned their allegiance to the Union and/or helped the Company to defeat it. For example, in early December 1965, Chief Dispatcher Little com- mented to Driver Marshall Robinson about the tat- ter's wife, children, and home and then asked Robinson why he did not get out of the Union and "help" the Company "break it up." During the same conversation, Little promised that, if Robin- son did so, he could have "most any job" he wanted with the Company. Robinson was discharged on January 20, 1966. Dispatcher Jones told Driver Seitz that if the latter gave his union card to management, "the Company would more than likely help" Seitz if the latter "got into any trouble." After criticizing Driver Shelly Smith for being late in arriving in Charlotte, Jones told him QUEEN CITY COACH CO. 503 that his tach or disc would be taken care of if he turned in his card "upstairs." In early May, Super- visor Batts remarked to Driver Dale that if the latter was "man enough " to admit that he had made a "mistake" Batts would "guarantee" that "nothing would happen" to Dale. Dale replied that he did not think he had made a "mistake." Dale was discharged on May 30, 2 days before the hear- ing on the Union's representation petition. In addition, Respondent used Driver Lowder dur- ing the period covered by the complaints to provide it with information about which drivers were pro- union and union meetings and plans . As stated earli- er, Respondent had no legitimate need for such in- formation and did not claim that it did. On the con- trary, sometime prior to August 1965, Batts told Lowder that the information he provided would "help weed out" the prounion drivers and "stop" the union campaign. Batts also told Lowder that he - Batts-would discharge prounion drivers. Although it is assumed that Batts made these statements more than 6 months before the first charge was filed, there is no evidence that Batts had a different reason for wanting the information after August 1965. The undisputed facts establish that Respondent's illegal conduct continued over a period of months and some of the statements were made by Super- visor Batts and Chief Dispatcher Little, President Love's nephew , thereby providing the employees with ample evidence that the statements , questions, threats, and promises represented the actual policy of the Company toward employees who were active in and remained loyal to the Union and toward those who were willing to abandon their efforts to obtain union representation and/or who had never joined the Union or never had been in favor of col- lective bargaining . In fact, Myrtle Beach, South Carolina, Supervisor Gainey told Driver Parker that President Love stated at a meeting of division managers in Charlotte that the Company was not going to have or recognize a union and, if the Union "came in," the Company would have to eliminate " runs." As stated above, one of the facts considered by both the Board and the courts in cases such as this is the timing of the discharge or suspension of union leaders. In the instant case, the Union made it clear in its January 1966 letter that it would file a petition for another election as soon as another one could be held, i.e., in March 1966. The record also shows that, if only a handful of drivers who had voted against the Union in March 1965 voted for it the next time, the Union would be certified as the collective-bargaining representative of the em- ployees and the Company would be under the duty to bargain in good faith with it about wages, hours, and working conditions. The suspension or discharge of only one or two open, active, and influential prounion employees would make it clear that the Company meant what it said when it threatened reprisals against prounion employees. When prounion employees are discharged or suspended, other union supporters may or will decide that it is "better to repent" than "be killed" and employees who might otherwise become prounion may or will decide that their job security would be improved if they remained neutral or became openly antiunion. In fact, in the instant case, the Company repeatedly asserted that a substantial number of union cards had been turned in to management. It must also be kept in mind that the suspension of Dale and the discharge of Robinson in January followed closely the Union's January letter and that Dale's discharge on May 30 occurred 2 days before the hearing on the Union's representation petition, both critical events in the Union's campaign. In ad- dition, it is undisputed that, only a few weeks be- fore each discharge, a management representative sought unsuccessfully to cause the dischargee to de- fect from the Union. In the case of Robinson, the management representative was Chief Dispatcher Little and in the case of Dale it was Supervisor Batts. In sum, the Company's threats of reprisals for union activity and the other coercive conduct set forth earlier not only violated Section 8(a)(1) of the Act but must also be considered in determining the Company's motive for discharging Robinson on January 20 and for suspending Dale on January 1 1 and discharging him on May 30. 2. The discharge of driver Robinson on January 20 As set forth, supra, Robinson had been employed by the Company since 1941 and the only time he was ever in "trouble" before January 1966 was in June 1965 when he left a mailbag on his bus and was put on probation for 6 months. On the other hand, in January 1966 he received an award for having driven for 24 years and more than 1-1 /2 mil- lion miles without an accident. If Robinson and President Love were not friends, they were longtime acquaintances and Robinson and Chief Dispatcher Little, Love's nephew, were friends. In 1958, Love asked Robinson to defect from the Union and help defeat it and Robinson did so because Love told him that Jack Love would go to prison. Obviously, Love selected Robinson in part because of his ability to influence other em- ployees but he also armed Robinson and another employee with the authority to bring about the discharge of any driver necessary to achieve the desired result. However, in 1963, 1964, and 1965, Robinson re- sisted pressure from management representatives to prove that he was not in favor of union representa- tion and the Union's August 1965 letter listed him as a member of the Union's executive board. Although this position did not make Robinson a "top" union official, it did make known to both management and the employees that he was work- ing to obtain union representation. (Perhaps Robin- 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son's relatively minor union post was due to his as- sociations with Love and his family and his defec- tion in 1958.) In short, from Love's point of view, Robinson was a "turn coat" and he probably honestly re- garded Robinson as disloyal to both himself and the Company. Love was 71 or 72 years old and, even when he was younger, he made it clear that the Na- tional Labor Relations Act would not keep him from taking whatever steps he thought necessary to avoid having to bargain collectively with a union. In his reply to the Union's August 1965 letter, President Love referred contemptuously to "what is termed Local 1531" and warned the Union's of- ficers that they would be expected to do their work like anyone else. Certainly, union membership does not carry with it immunity from disciplinary action for unsatisfactory performance but it is interesting to note that Love did not also assure the officers that their positions in the Union would not, per se, jeopardize their job tenure. In September, Robinson was warned that a "lot of good men" would get "hurt" even if their role in the union campaign was relatively unimportant. In December, Chief Dispatcher Little tried to get Robinson to get out of the Union and help defeat it and offered Robinson as an inducement almost any job he wanted. When Robinson refused, Little re- marked that President Love was disappointed in him, a statement which reveals that Love was aware of and had commented unfavorably upon Robin- son's union activity. Of course, Little would report to his uncle the unsatisfactory result of his conver- sation with Robinson which would make Love even more disappointed with Robinson. On the evening of January 2, 1966, the Charlotte terminal was crowded with people and buses as the holiday season came to an end. The lighting was not good ( new lighting was later installed) and the type ticket Mahler had could have been easier to read . Nonetheless , it was Robinson's duty to see that everyone who boarded his bus was bound for the cities it served and Robinson failed in that duty when he misread young Mahler's ticket and allowed him to board the "wrong" bus. However, Mahler and his mother, Mrs. Aistrop, ignored the fact that the sign on the bus read Miami and Mahler ignored Robinson's announcement on the bus' loud speaker system, before leaving the terminal, that the bus would serve cities in Georgia and Florida. Mahler had made a number of trips alone between Indi- anapolis and Charlotte and must have known that he did not go to Indiana via Georgia and Florida. When Mahler told Robinson in Fort Mill, South Carolina, that he-Mahler-was on the wrong bus, Robinson returned Mahler's ticket, told him about the Greyhound bus to Charlotte that was due in a few minutes and about the 11:40 p.m. bus from Charlotte to Asheville, and gave him money to pay his fare to Charlotte. At the hearing, Batts made a number of sug- gestions about what Robinson should have done in Fort Mill. But few if any of them would have helped Mahler much, if at all, even though Batts was in a position to be "wise" after the event. According to Batts, Robinson should have called Dispatcher Kiser in Charlotte and made arrangement for a car to be sent for Mahler although he would have had to wait much longer for a car to come from Char- lotte than he had to wait for the Greyhound bus. And the record contains no evidence which makes Batts ' suggestion that Mahler could have been sent to "Gastonia or some place" sound in the least sen- sible. And, as noted, Dispatcher Kiser did not testi- fy that, if Robinson had called from Fort Mill, he would have told Robinson to do anything other than what the latter did. In fact, Kiser's question about the Greyhound bus leaves little doubt that, if Robinson had called, he would have told him to tell Mahler about the bus and give him money to pay his fare back to Charlotte so he could take the 11:40 p.m. bus to Asheville. In sum , Batts ' "suggestions" were prompted more by the need to "prove" that Robinson should have done something different than by Batts' good- faith belief that Robinson showed very poor judgment by seeking to get Mahler on a bus going back to Charlotte within a few minutes after he discovered that Mahler should have been on the Asheville bus. Furthermore, by failing to discuss the matter with Robinson until January 17, the Company did not know whether or not to what extent Mrs. Aistrop's claim were true . But even assuming that it accepted as true everything she said, it cannot have been very worried for, if it had been, it would surely have sought to reach a quick, even an expensive , settle- ment instead of running the risk of a law suit with its unfavorable publicity. Although Supervisor Batts testified that Robinson was guilty of gross negligence when he left Mahler in Fort Mill at or about 9 p.m. on January 2, there being no enclosed place to wait, Batts ignored the self-evident fact that Mahler's wait in Fort Mill was due entirely to the fact that he chose to call his mother and wait until she could come for him from Kannapolis, North Carolina, instead of taking the bus to Charlotte even if he was determined not to take the 11:40 bus to Asheville but to call his mother to come for him in Charlotte. Of course, if Mahler had called Mrs. Aistrop from Charlotte, she might have asked about the next bus to Asheville and, upon being told that one left at 1 1:40 p.m., she might have told Mahler to take it. On the other hand, Mahler made sure that his mother would come to Fort Mill for him by telling her that he was "stranded" there. Batts also ignored the fact that Robinson's ac- tions in Fort Mill were completely consistent with the instructions Batts testified were given to drivers about what to do in such situations which were to get the passenger going in the right direction as quickly as possible. QUEEN CITY COACH CO. 505 In addition , Batts chose to exaggerate Robinson's conduct in Fort Mill by claiming that he left Mahler there to get home the "best way he could." What- ever Robinson did, it was not that , for it is un- disputed that he gave Mahler money to pay his fare back to Charlotte , gave him careful instructions about the Greyhound bus to Charlotte that was due in a few minutes and the 11:40 p.m. bus out of Charlotte , and called Dispatcher Kiser from his next stop to ask him to watch for the boy and see that he got on the 11:40 bus. All of these facts were known to Batts when he decided, on January 20, to discharge Robinson. The Mahler-Aistrop version of the incident was known to management on January 3 as a result of Dispatcher Kiser's report and the call from Mrs. Aistrop. However, Respondent chose to do nothing at all about the incident on that day or for more than 2 weeks thereafter. Thus, no one even men- tioned it to Robinson until January 17 and per- mitted him to continue to drive. These facts cannot be reconciled with Batts' claim that he considered Robinson guilty of gross negligence because he left Mahler in Fort Mill. In case Mrs. Aistrop did sue the Company, it could not even improve its public image by proving that it took prompt action against the driver responsible. In fact, by failing to so much as question Robinson, it condoned his conduct and it would no doubt have argued that once Robinson discovered his mistake, he did everything he could to minimize the "damage " and that it was Mahler's own conduct in Fort Mill which caused him to wait 2 hours or so and caused Mrs. Aistrop to have to go to Fort Mill for him. Cf. the Company's delay in speaking to Robinson about Mahler with Batts' claim that he suspended Driver Dale on January 1 1 while he investigated a rumor although, even if the alleged facts were true, the incident occurred on Dale's time, away from the terminal, and did not in- volve a passenger. However, when Mrs. Aistrop notified the Com- pany on January 3 that she was considering legal action, the Union's January letter had not been sent out and there is no evidence that there had been any significant union activity since the Union's Au- gust letter stating that it had been granted a charter and officers had been elected. Then, by its letter on January 7, the Union made it clear that it would seek another Board election which meant that it was about to begin a real campaign . Having been defeated by only a narrow margin in March 1965, and having since that time obtained the open sup- port of a dozen drivers, the Company was put on notice that the Union might well obtain and win an election within the next few months unless something happened which would discourage both the drivers who already favored union representa- tion and those who might be influenced by the Union's campaign during the final weeks before the election. Accordingly, the Company began its campaign to coerce the employees, by threats of reprisals and promises of benefits, into turning their union cards in to management. Among other things, the Com- pany warned that it was "better to repent" than "to get killed" and told them that "something" could be found which could be used as an excuse to discharge prounion drivers. In the case of Robinson, that " something" al- ready existed, i.e., the Mahler affair on January 2. However, the Company could not contend very convincingly that it discharged him after January 7 because of that incident, having failed to even so much as mention it before the Union's letter was sent out. Therefore, as a practical matter, something else must be found to add to Robinson's conduct on January 2. It was desirable if not necessary that the second "something" be an incident which hap- pened after the Union's letter and shortly before Robinson was discharged. And, according to the Company, a second "something" did happen after the Union's letter and a few days before Robinson was discharged for it claims that he failed, on January 15, to see that a boy was asleep on the back seat of his bus with the result that the boy was taken to the shop. The only difficulty with this "something" is that the record does not support the Company's claim. Most important of all, the Company made no at- tempt to call as witnesses the boy or Davis, the man who allegedly was at the station to meet him, although they were the only identified witnesses who knew the actual facts about what happened, if anything. Because of the Davis-Dees friendship, the boy and Davis would not be hostile witnesses but could be depended upon to tell the truth, assuming that the truth would have helped Respondent. Nor did Respondent call the service driver whose duty it was to check the bus before he drove it to the shop. Instead, the Company called several witnesses who could only testify, of their own knowledge, about various bits and pieces of circumstantial evidence although they did state a number of "facts" based on what the missing witness Davis told them. As noted supra, there are too many conflicts in their testimony to be ignored. However, there was one subject on which there was no conflict in their testimony and that was the date on which the al- leged incident occurred. A conflict on this subject could not be permitted and it was avoided by coun- sel's habit of stating the date in his questions. Then, too, there is Respondent's unexplained failure to mention the incident until the hearing. As set forth earlier, it is unbelievable that Chief Dispatcher Little would have failed to ask Robinson about the boy after Davis allegedly talked to Little near the bus. It is no easier to understand why Lit- tle did not have the bus checked again if he had the conversation with Davis he described. Cf. his as- serted complete about-face when Davis came or was brought to his office shortly thereafter, the latter also being another point on which the testimony of the witnesses is inconsistent. If the in- 506 DECISIONS OF NATIONAL cident happened, it is even more incredible. that"At- torney Ray would have failed to. mention it when he interviewed Robinson- and' took his statement on January 17, i:e., 2 days after it allegedly occurred. 5t is therefore impossible to believe that Ray inter- viewed Davis on January 15 and that, as he claimed, Chief Dispatcher Little told him on Jan- uary 15 that Robinson was the driver responsible. Still more incredible but equally undisputed is Ray's failure to mention the incident in his January memorandum to Supervisor Batts and which Batts said caused him to decide to discharge Robinson. See also the reason Batts gave Robinson for discharging him. Respondent did not explain why, if the "facts" were those claimed, it was so secretive about what happened on January 15 and why it failed to give Robinson a chance to tell what he knew, if anything, about a little Negro boy who supposedly got on his bus in Rock Hill that morning. In fact , the Com- pany's "investigation " of the incident was so in- complete that Batts allegedly did not know that Chief Dispatcher Little saw Robinson check the bus. It was for these reasons, inter alia , that it was found that there was no incident on January 15 in- volving Robinson . If there was no such incident in- volving Robinson, Respondent 's reason for seeking to establish that there was can only have been to provide a second "something" or "excuse" for discharging him, particularly one which occurred after the Union's letter and shortly before he was discharged . Furthermore , Robinson 's alleged second act of carelessness involving a young boy was of a type which made Respondent 's reliance on the Mahler incident, which happened before the Union's January letter and which it had hitherto ignored , seem logical. However , as pointed out supra, the fact that the second "incident" was generally similar to the first was in itself suspicious because it seems highly likely that Robinson, who was worried by his misreading of Mahler's ticket on January 2, would have been paying particular atten- tion to any young passenger traveling alone. But even assuming , arguendo, that Robinson did leave a boy on his bus on January 15, the record would not support Batts' claim at the hearing that he relied on it when he decided, on January 20, to discharge Robinson. Thus, Batts testified that his decision to discharge Robinson was based on the information furnished him, on January 20, by At- torney Ray and, when discussing that information, Batts referred to the incident on January 15. But Ray's memorandum and attachments concerned only the Mahler affair . See also Ray's vague testimony about when or if he talked to Batts and gave him the ticket stub , Batts ' vague testimony about when or if he talked to Chief Dispatcher Lit- tle about the incident, and Little 's failure to men- tion any conversation with either Ray or Batts about what allegedly happened on January 15. Ob- viously, Ray did not consider the incident, if it hap- LABOR. RELATIONS BOARD pened , important enough to refer to it in his Janua- ry 20 memorandum even as a "footnote" to the Mahler affair. In fact, the record does not disclose how Batts learned about the incident even if it occurred. It was not mentioned in Ray's memorandum , no state- ment was taken from Robinson nor was he inter- viewed about the boy who supposedly got on his bus in Rock Hill and did not get off when the bus got to Charlotte . If Batts knew about both incidents before he received Ray's memorandum, as he claimed , he had no reason to try to make it appear, as he did , that Ray 's "information " concerned both incidents. But even assuming that the incident occurred and Batts knew about it, the investigation was so in- complete that Batts did not know that Little saw Robinson check the bus. It is impossible , therefore, to believe that Batts wanted to know all of the facts for, if he had, he would have interviewed Robinson, the service driver who took Robinson 's bus to the shop , and Little in sufficient depth to learn what Little knew . In short, I am convinced and I find that, at best, all Batts was interested in was obtain- ing just enough information so that he would have a second "excuse" for discharging Robinson, i.e., "something" which happened after the Union's let- ter and shortly before Robinson was discharged. Further doubt is cast upon the Company's good faith by its contention that a service driver is not supposed to check a bus carefully before taking it to the shop and by its contention that it is almost unheard of for a passenger to be taken to the shop and, when it does happen , the over-the-road driver is guilty of a serious offense. For the reasons set forth supra, none of these contentions stand up under scrutiny . In addition , it is the service driver who actually drives a bus to the shop with a pas- senger on it. The over-the-road driver has just completed a long " run ' which involves considera- ble "strain" as the result of modern traffic condi- tions and the need to be helpful and courteous to the passengers. Since Robinson arrived in Charlotte at 8:30 a.m., he must have left Augusta late on January 14 or very early on January 15. Moreover, the end of the "run " does not mean the end of the driver's duties for he has to make out a report, in some cases , he must take charge of and deliver a mailbag , and answer passenger questions about such subjects as when and where buses leave for other points . Nonetheless, not a word was ever said to the service driver about taking a boy to the shop; only Robinson was allegedly guilty of a serious of- fense. And there is no evidence that any driver had ever been so much as reprimanded for leaving a passenger on a bus although Shop Foreman Blackwelder 's testimony about how he acts "as a rule" in such cases makes it clear that such in- cidents are far from rare. A passenger taken to the shop is in no danger although his "arrival " is delayed 20 to 30 minutes. But the traveling public is used to delays and Davis QUEEN CITY COACH CO. 507 did not even so much as grumble because he had to wait for the boy to be brought from the shop. It was only Respondent who sought to make the incident important by taking Davis to Attorney Ray's office where he was asked to sign a statement. Surely, the Company does not ordinarily take the initiative in suggesting that someone has good grounds for com- plaining because some mistake has been made. Having considered the entire record, including Robinson's long and distinguished record, his union activity and Respondent's attitude toward the drivers' efforts to obtain union representation which included President Love's successful effort in 1958 to cause Robinson to defect from the Union and help the Company defeat it, Chief Dispatcher Little's unsuccessful effort in December 1965 to get Robinson to act in the same manner by promising him almost any job with the Company he wanted, the Company's threats of reprisals against prounion drivers and promises of benefits to drivers who gave their union cards to management, its efforts to prevent an election and to defeat the Union if an election were held, the fact that the Union needed to win the votes of only a handful of drivers to win a new election and the evidence that it had gained support since the previous election, its exaggerated account of the Mahler incident on January 2, its failure to so much as mention the incident to Robinson until January 17, i.e., after the Union's January 7 letter, its false claim that Robinson left a boy on his bus on January 15, the reference to the union cards which had been turned in when Robin- son went back for his check, and his conversation with Attorney Ray during the February unfair labor practice hearing, I find that Robinson was discharged because of his union activity and the union activity generally and in order to cause the drivers to refrain from becoming union members or to resign their union membership or to vote against union representation if and when an election was held. It follows. therefore and I find that Respon- dent violated Section 8(a)(3) and (I) of the Act by discharging Robinson. 3. The suspension of Driver Dale on January 12 Dale had been a driver for the Company for about 7 years when the Union sent out its January 7 letter listing him as one of 12 drivers who favored union representation. On January 11, Supervisor Batts suspended Dale allegedly because of a rumor to the effect that he and Driver Davis had sat in a car on the parking lot with two women. Batts refused to believe Dale's denial that there had been any such incident but ac- cepted without question Davis' denial when he spoke to Davis a day or two later. Nonetheless, Batts did not promptly recall Dale who lost a .week's pay. In January, Batts told Davis that he could have lost his job if he had not been able to "straighten out" the matter although Batts did not explain why Davis was able to do so by merely denying that there had been any such incident while Dale's deni- al was ignored. Batts' statement to Davis makes it clear that in January Batts allegedly was concerned about whether the two drivers had in fact been with the women. At the hearing, however, Batts gave a different explanation and one designed to explain why he suspended Dale but not Davis, i.e., that Dale had falsely accused Davis by telling Mrs. Dale about the women incident which did not occur. But, as stated earlier, Davis' statements to Batts about what hap- pend when Mrs. Dale came to the parking lot, par- ticularly his description of Dales' conduct, is so in- credible on its face that Batts could not have be- lieved Davis as he allegedly did. In other words, Batts cannot have believed without question that Dale was determined to convince Mrs. Dale that he was guilty of something when he was actually in- nocent. In addition, even the meeting with Mrs. Dale oc- curred weeks before January 11. It no doubt made an interesting story at the time but, by January 11, it was "old stuff" and it was made an especially stale subject by the intervening holidays. Cf. coun- sel's indefinite reference to the date in his opening question to Davis about the Mrs. Dale meeting. There is no evidence that Batts had ever even so much as investigated any rumor of misconduct in his more than 7 years of supervising up to as many as 350 drivers. Nor did he explain why he chose not only to investigate this one but to suspend Dale although the misconduct alleged was relatively minor and, if it occurred at all, it happened on the drivers' own time, away from the station, did not in- volve the Company in any way, and did not become known to the public. Finally , Batts insisted that Dale's suspension was not "disciplinary" although Dale lost a week's pay and Batts sought to make it appear that he suspended Dale for good cause. As mentioned supra, among the facts to be con- sidered when determining the employer's motive for taking action against a prounion employee are the employer's attitude toward union representa- tion, any threats he has made to punish prounion employee, the relationship in time between the em- ployer's action and a critical stage in the union's campaign, whether the employee's alleged miscon- duct was minor or serious, whether the employer normally acts in the same manner when the same or similar misconduct is alleged, whether nonunion employees guilty of the same or similar misconduct are disciplined in the same manner, whether the employer gives a consistent, unexaggerated descrip- tion of the employee's alleged misconduct and his own reason for taking action, and when the alleged misconduct occurred in relationship to the com- pany's action. As a practical matter, the Union's January 7 letter marked the beginning of the Union's real campaign to obtain and win an election in 1966. Its 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 1965 letter was issued too many months be- fore March 1966, the first month in which another election could be held, to be taken as a serious threat. But the January letter outlined definite plans and made definite claims and the Company took it serious for, in turn, it stepped up the number of threats and promises of benefit and made both very specific. An increase in open support of the Union, as demonstrated by the listing of the names of the 12 drivers, including Dale, almost certainly reflected an even greater increase in actual support not only in the form of "confidential" membership, as soli- cited by the Union, but in the number of drivers who would say or do nothing to reveal their views but would vote for the Union if a secret election were held. Accordingly, one of the Company's chief objec- tives was to cause the drivers to turn in their union cards to management in the hope that the Union would be unable to obtain another election because it could not provide the sufficient showing of in- terest with its representation petition. And in the period following Dale's suspension and Robinson's discharge, the Company repeatedly told the drivers that a substantial number of union cards had been turned in to the office. Finally, the Union had to gain only a handful of additional votes to win a new election and the Union 's January 7 letter indicated that it might have already obtained the necessary number of ad- ditional supporters. There is often a clearly identifiable point when a union campaign or a campaign for public office or a football team starts to pick up momentum and, unless that momentum is checked quickly and ef- fectively, it cannot be checked at all. If employee interest in obtaining union representation is in- creasing, the most effective way to combat it is to provide tangible proof of the risk employees run if they defy management's open opposition to collec- tive bargaining. In short, prompt proof that the Company could find "something" to use as an ex- cuse for taking action and that it was in fact "better to repent" than to get "killed" would leave no doubt that the Company could and would act at any time it decided it was necessary to do so. Moreover, the less convincing the employer's as- serted reason for the acting the less likely the em- ployees would be to believe that he acted for cause. For the reasons stated supra, Batts' explanation for his suspension of Dale and his explanation of why he suspended Dale but not Davis do not stand up under scrutiny and their failure to do so in and of itself constitutes proof that he was motivated by something other than the reason he gave in January or the one he gave at the hearing . Similarly, the fact that Batts gave one reason in January and another at the hearing reveals that he realized in August that the reason he gave in January would be seen as merely an excuse and that it was necessary, there- fore, to give a different one in order to establish that he acted for good cause in suspending Dale. Having considered the record as a whole includ- ing the shifting , exaggerated reasons Batts gave for suspending Dale, the relationship in time between the Union's January letter and Dale's suspension, the relationship in time between Dale's alleged misconduct and the date of his suspension, Batts' failure to suspend Davis, the fact that Batts had never before even investigated a rumor of miscon- duct no matter how serious the alleged misconduct, Respondent's warning that it could always find "something" for which to take action against union members and employees who favored union representation, and its repeated references thereafter to the number of union cards turned in to management, I find that Batts suspended Dale because of the union activity generally, including the Union's letter announcing its intention to seek another election and naming Dale as one of 12 drivers who were openly supporting the Union's cause, and in order to discourage the drivers from seeking another election and from voting for the Union if one was held. I find, therefore, that Respondent violated Section 8(a)(3) and (1) of the Act by suspending Dale for I week in January 1966. 4. The discharge of Dale on May 30 There are many similarities between Dale's suspension in January and his discharge on May 30. For one thing, his discharge was also closely related in time to an important step in the Union's cam- paign which in this case was the June 1 hearing on the Union's representation petition. For another, management seriously exaggerated Dale's actual misconduct and its reaction to it. Thus, Batts claimed untruthfully that Dale was warned when he overslept in March or April, he claimed un- truthfully that he did not learn until May 19 that Dale overslept on May 5 because he was out of town, and he claimed untruthfully it was worse to leave a mailbag in the drivers' room than on a bus; Assistant Treasurer S. J. Little testified that this was the first mailbag incident in his 18 years as assistant treasurer but he admitted later that it was only the first time a mailbag had been left in a bus; and Chief Dispatcher Little testified untruthfully that Dale did not tell him promptly where to look for the mailbag. Of course , Dale made it plain that his suspension in January had not caused him to change his mind about the Union for in February he refused an offer to get him excused from jury duty if he would sit on the Company's "side" at an earlier unfair labor practice hearing and in early May brushed off Su- pervisor Batts' promise that, if Dale was man enough to admit that he had made a mistake, the "welcome mat" was spread and Batts would "guar- antee" that nothing would happen to Dale. Instead, Dale told Batts that he did not feel that he had made a mistake. QUEEN CITY COACH CO. Thus, Dale's discharge , like that of Robinson in January, followed by only a few weeks an effort by management to cause him to defect from the Union. When the Board scheduled a hearing for June 1 on the Union 's representation petition , Respondent was put on notice that an election was not far off and it needed to prove again to the drivers that it was "better to repent" than to get "killed" for the Company 's discrimination against Dale and Robin- son in January and its threats and promises thereafter had not kept the Union from obtaining an election. More importantly , the Union still wanted an elec- tion and, as noted , supra, it would win this time if it could pick up only a handful more votes . But the discharge of a prounion driver might or would discourage open union activity and would be espe- cially effective if it caused the undecided drivers to refuse to listen to prounion arguments lest the Company consider a willingness to listen to proof that they were prounion. Dale's discharge having occurred at the time it did, i.e., 2 days before the hearing on the petition, and after the numerous threats made by the Com- pany, including the one about being able to find something to get rid of a driver so that his vote would be challenged , see supra, the fact that the Company could have discharged Dale for cause does not prove that it did discharge him for cause. As a practical matter , the real question is whether the record as a whole indicates that Dale would have been discharged because he overslept and left a mailbag in the drivers ' room if he had heeded Batts' suggestion , in early May, that he admit his "mistake " in allowing the Union to list his name in return for which Batts would "guarantee" that nothing would happen to him. In my opinion, the answer is no. A number of reasons for giving that answer have already been stated such as the untruthful testimony of the Company's witnesses concerning Dale's misconduct, inter alia, and the fact that Dale was discharged 2 days before the representation hearing. An employer who has good cause to discharge an employee does not need to give an un- truthful description of the employee 's mistakes nor does he need to conceal when he-the employer- learned about them . If Batts had ever before con- sidered oversleeping a dischargeable offense, there is no evidence of it in the record. As for the mail- bag incident, when Robinson left one on a bus in June 1965 he was merely put on probation for 6 months. But there was no union campaign going on in June 1965. It is therefore not surprising that the Company felt it necessary to examine Dale's entire record in an effort to find "something" more it could rely on to justify his discharge. This investigation included 509 an examination of Dale's driving logs although there was no connection between his actual mistakes and the logs. As for Batts' claim that the logs were found to be "falsified," it is enough to say that the logs were never produced although counsel asked only that their production be postponed in order to save time . It does not occur to an em- ployer who is acting in good faith on the basis of what the employee actually did to look for other things the employee might have done and to claim untruthfully that he found some additional reason for his action. Having considered the entire record including Respondent's exaggerated description of Dale's misconduct, its untruthful claim that he had "falsi- fied" his driving "logs," its wide-scale investigation of his record in search of "something" more that could be used to justify Dale's discharge, the fact that Dale was discharged 2 days before the hearing on the Union's representation petition and shortly after he refused to heed Batts' efforts to cause him to admit that he had made a "mistake" in being prounion, Batts' promise that, if Dale did admit his mistake, Batts would "guarantee" that nothing would happen to him, the Company's other threats of reprisals, its promises of benefits and all of its other illegal conduct, its campaign to keep the Union from obtaining an election, the Union's chances of winning the upcoming election, and the Company's expressed intention not to bargain col- lectively, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Dale, its real reasons being his union activity and the union activity generally and its wish to defeat the Union in the forthcoming election. I also find that Respondent's discrimination against Dale actually occurred on May 20 when he was told not to drive until further notice. On that date, Batts knew that Dale had overslept on May 5 and had left a mailbag in the drivers' room on May 19. The only other suspension allegedly for the pur- pose of investigation was the one given Dale in January. Robinson was not suspended when he left a mailbag on a bus in June 1965 but was only put on probation for 6 months. (Absent the mailbag in- cident, all Batts knew was that Dale overslept on May 5 and there is no evidence that oversleeping is a dischargeable offense.) Robinson was not suspended following the Mahler affair, even though Batts claimed at the hearing that Robinson was guilty of gross negligence when he left Mahler in Fort Mill. On May 20, there was nothing for the Company to investigate for Dale did not deny that he over- slept or that he left a mailbag in the drivers' room. Between that date and May 30, when Dale was, discharged, the Company learned nothing new about either incident.31 In fact, Batts did not ex- plain why Dale was not discharged on May 20 if he I As found supra, there is no evidence that Batts knew, on May 30, that Dale had overslept on one earlier occasion 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discharged for the reasons given at the hearing. To put it otherwise, if Dale was discharged for the reasons given, he would have been discharged on May 20 or a day or two later at the most. His mistakes were dischargeable offenses or they were not. They were routine driver errors and neither required lengthy, high-level discussion nor con- sultation with President Love or anyone superior to Batts and there is no evidence that such discussions or consultations occurred. Of course, on May 20, Respondent had not had time to investigate Dale's entire record, including his driving logs which might disclose additional and, perhaps, more convincing reasons for discharging Dale. This investigation may not have been completed even on May 30 but the representation hearing was to be held on June 1. In sum , the fact that Dale was not discharged on May 20 is an additional reason for finding that he was not discharged because of his mistakes. But it was on that date that Dale stopped driving although he was not officially discharged until May 30. CONCLUSIONS OF LAW 1. Queen City Coach Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Amalgamated Transit Union, Local No. 1531, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Supervisor of Drivers Batts, Charlotte Chief Dispatcher Little, J. M. Gainey who is a manage- ment representative at the Myrtle Beach, South Carolina, terminal, Fayetteville Shop Foreman Barkley, and the dispatchers are supervisors within the meaning of Section 2(11) of the Act. 4. Respondent violated Section 8(a)( I) of the Act by coercively interrogating employees about their union activity, about the reason for the union activity generally, and about their own union activi- ty including questions about whether and why they signed union cards or wanted union representation; by causing an employee to tell a supervisor and a company official which drivers belonged to the Union, when and where union meetings were to be held, who attended them, and union plans; by stat- ing that employees who gave their union cards to management were " telling" on others; by trying to show a driver's union card to President Love; by using threats of reprisals and/or promises of benefit in order to obtain employees' signed union cards; by making threats of reprisals against prounion em- ployees and by making promises of benefit to em- ployees if they would defect from the Union, such threats including but not being limited to state- ments that it is "better to repent" than to "get kil- led" and that the Company could always "find something" for which to discharge a prounion em- ployee, the promises including but not being limited to the offer to Robinson of almost any job if he would defect from the Union and help the Com- pany defeat it and the promise made to Driver Smith, who had been criticized for bringing his bus in late , that his tach would be taken care of if he gave his union card to management; by stating that President Love had told the division managers that the Company was not going to have or recognize the Union and if the employees chose to be represented by the Union the Company would eliminate "runs" ; by trying to keep Driver Lowder from honoring a Board subpena to appear and testi- fy at the instant hearing; and by asking Lowder if he gave a statement to the Board and, when he said he did, by asking him what it contained. 5. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Marshall Robinson and by suspending and by later discharging Rayford Dale. 6. Respondent did not violate the Act by engag- ing in any conduct other than that which was found, in the body of the Decision, to violate Sec- tion 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent engaged in vari- ous unfair labor practices, the Recommended Order will include, as is usual in such cases, both cease-and-desist and affirmative provisions which are necessary to effectuate the policies of the Act. Backpay will be computed on the basis of the for- mulae set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because of the Company's discrimina- tion against Marshall Robinson and Rayford Dale and its numerous independent violations of Section 8(a)(1) of the Act, the commission of similar or other unfair labor practices in the case of another union campaign can reasonably be anticipated. Therefore, the Recommended Order includes a provision directing the Company not to engage in any other conduct which interferes with, restrains, and coerces the employees in the exercise of the rights guaranteed them by Section 7 of the Act. Each act which has been found to constitute an independent violation of Section 8(a)( 1) of the Act is specifically set forth in the Decision and the findings made therein put the Company on notice about the various types of threats and promises of benefits which violate the Act and which the Recommended Order is designed to prevent in the future. Under these circumstances , it is unnecessary for Section 1(a) of the Recommended Order to refer to every specific threat of reprisal and promise of benefit made by Respondent. The Recommended Order will require Respon- dent to post the usual appropriate notice at all of its terminals used by the drivers included in the ap- propriate bargaining unit. The widespread nature of the unit means that prounion drivers and others seeking to persuade the drivers to vote for union representation would conduct their campaign for union members and votes for union representation QUEEN CITY COACH CO. in every terminal used by drivers in the unit. Similarly, news of what Respondent said and did to defeat the Union would travel to all terminals. For example, Driver Robinson 's "run" was to and from Augusta, Georgia, and Dale's "run " was to and from Asheville, North Carolina, and the drivers based at those terminals would learn almost im- mediately about Robinson 's and Dale 's discharge and they would report the discharges to drivers at the terminals to which they drove. The place or places of posting at the various ter- minals will be those traditionally used , such as on the bulletin boards where notices to employees are customarily posted . However, I suggest that the Board might want to consider whether or not the traditional places of posting accomplish as fully as possible the desired result; i.e., to bring the notice to the actual attention of the maximum number of employees and to cause that same number to read the notice both in its entirety and carefully. Unless the number of employees is small, many or most of the employees will know nothing about the Board proceeding and its outcome unless they see and read the notices posted . The usual bulletin boards frequently if not usually contain many notices some of which may be relatively unimpor- tant. When this is the case , the Board 's notice becomes only one among many and it is probable that it will be regarded by many of the employees as "just another " item on a crowded bulletin board. I doubt that either employees or unions rely on such postings to disseminate information which must be known to their employees or members. If the Board should conclude that the change should be made in the places of posting , it might decide to furnish, for the 60-day period, special bulletin boards on which nothing other than the Board 's notice would be posted. It might also pro- vide standards or easels to be placed at points where the employees would be most likely to read the posted material. Upon the basis of the facts found and conclusions of law set forth in the Decision , upon the entire record, and having considered the General Coun- sel's brief and oral argument, I recommend the fol- lowing: RECOMMENDED ORDER Queen City Coach Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activity, the reasons for their union activity or union activity generally, or about whether or why they signed union cards or want union representa- tion ; causing any employee to report to any com- pany supervisor or official about which drivers be- long to the Union , the time and place of union meetings, who attended past meetings , any union plans, or about any other union activity; stating that employees who gave their union cards to manage- 511 ment gave information about other drivers who be- long to or favor the Union; proposing that em- ployees show their union cards to President Love or any other management representative; using threats of reprisals or promises of benefits for the purpose of causing drivers to give their union cards to management ; making any threats of reprisals against prounion employees and making any promises of benefits to drivers who will defect from or have nothing to do with the Union, including but not limited to statements that it is "better to re- pent" than to "get killed" and that the Company can always "find something" for which to discharge prounion employees and including but not limited to promises of almost any job if employees will de- fect from the Union and help the Company defeat it and that the mechanical driving record of em- ployees will be taken care of if they give their union cards to management; stating that the Company will not have or recognize a union and, if a majority of the employees in the appropriate unit vote for the Union, the Company will terminate " runs"; at- tempting to cause or causing any employee not to honor a Board subpena; and asking any employee if he has given a statement or affidavit to the Board and about what such a statement or affidavit con- tained unless the questions are asked solely for the purpose of enabling the Company to prepare its defense in a Board proceeding and unless the em- ployees questioned are assured that they will not be penalized in any way for having given a statement or affidavit. (b) Discharging or suspending or penalizing in any other manner any employee because he and/or others have engaged in and continue to engage in union activity and because he and they exercise any of the rights guaranteed them by Section 7 of the Act. (c) Engaging in any other coercive or dis- criminatory conduct or in any other conduct which interferes with, restrains , and coerces employees in the exercise of their right to join or assist Amalga- mated Transit Union, Local No. 1531, or any other labor organization, to bargain collectively through Local No. 1531, or any other labor organization which represents a majority of the employees in an appropriate unit, and to engage in concerted activi- ty for the purpose of collective bargaining or for the mutual aid and/or protection of the employees as guaranteed by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which, I find, is necessary to effectuate the policies of the Act: (a) Offer Marshall Robinson and Rayford Dale immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set out under The Remedy section of this Decision. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) 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 analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at the home terminals of all of the drivers included in the appropriate unit copies of the attached notice marked "Appendix."37 Copies of said notice, to be furnished by the Regional Director for Region 11, after being duly signed by the Respondent's representative, shall 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 the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.38 IT IS HEREBY FURTHER RECOMMENDED that the complaint be dismissed with respect to any allega- tion of illegal conduct other than those found in the body of the Decision. " In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " a In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region I I , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership by any of our employees in Amalgamated Transit Union, Local No. 1531, or in any other labor organization, by discharging, suspending, or by taking any other discriminatory action against out employees because they join Local 153 1, or any other labor organization. WE WILL offer Marshall Robinson and Rayford Dale immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and we will pay them for any losses they may have suffered because we discharged Robinson and suspended and then discharged Dale because of their union activity and the union activity generally including union efforts to ob- tain and win a Board-conducted election. WE WILL NOT try to prevent Local 1531 or any other union from obtaining a Board-con- ducted election or to prevent our employees from voting for union representation in a Board-conducted election by any means except the expression of views and opinions and the presentation of arguments. WE WILL NOT question employees about their union activity or union activity generally, or about whether or why they signed union cards or want union representation, or about the reasons for their union activity or the union activity generally. WE WILL NOT cause any employee to report to Supervisor Batts, Attorney Ray, or any other company supervisor or officer about which drivers belong to the Union, or about which ones attend union meetings, or about when and where union meetings are to be or have been held, or about union plans, or any other union activity. WE WILL NOT state to employees that drivers who have turned their union cards in to management are "telling on" other drivers, that is, that they are giving information about drivers who have not turned in their cards, and WE WILL NOT try to show the union cards of the drivers to President Love or any other com- pany official or supervisor. WE WILL NOT cause or try to cause em- ployees to give their union cards to company supervisors or officials by threatening to take action against those who do not do so and by promising to help or benefit in some manner those who do. WE WILL NOT threaten to take action against prounion drivers including but not limited to such statements as that it is "better to repent" than to "get killed" and that we can "find something" for which to discharge prounion drivers. WE WILL NOT promise to help or benefit drivers who become or remain opposed to the Union or who help us defeat it, including but not limited to promises of almost any job and to take care of the tach or discs of drivers or to ignore such grounds for complaint against drivers as bringing in their buses late if they will give their union cards to management. WE WILL NOT state that the Company will not have or recognize a union and that we will cut out "runs" if the drivers choose to be represented by Local 1531 or any other labor organization. QUEEN CITY COACH CO. WE WILL NOT cause or attempt to cause any employee to fail to honor a Board subpena to appear and testify at a Board hearing. WE WILL NOT ask any employee if he has given a statement or affidavit to a representa- tive of the Board and, if so, what it contained except for the limited purpose of obtaining in- formation relevant to issues raised in Board proceedings and necessary to enable us to prepare our defense and in all such cases we will assure the employees that they will not be penalized in any way for having given a state- ment or affidavit to a Board representative. WE WILL NOT engage in any other conduct which interferes with, restrains, or coerces our employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Our employees are free to become or remain members of Local 1531 or any other labor or- ganization and are free to refrain from becoming or 513 remaining members of Local 1531 or any other labor organization. QUEEN CITY COACH COMPANY (Employer) Dated By (Representative ) (Title) Note: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their 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 consecu- tive 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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2392. 354-126 O-LT - 73 - Pt. 1 - 34