Airlines Parking, Inc.

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Airlines Parking, Inc. and Donald Lee Smith. Case 7-CA-9037 June 20, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 29, 1972, Trial Examiner Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Airlines Parking, Inc., Romu- lus, Michigan, its officers, agents, successors, and assigns, shall take the actions set forth in the Trial Examiner's recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings We also reject as lacking in merit Respondent's contention that the Trial Examiner was biased and prejudiced because he took official notice of and read the Trial Examiner's Decision in a prior unfair labor practice proceeding against this Respondent which, he noted, was then pending with the Board Airlines Parking, Inc, 196 NLRB No. 154 As the Trial Examiner's findings and conclusions here rest solely upon his evaluation of the evidence presented in the instant case, we are unable to find, as Respondent requests , that his references to an official public document rendered him biased and prejudiced 2 The parties stipulated that the facts relating to the Board's jurisdiction over the Respondent are the same as those adduced in the prior unfair labor practice proceeding. Airline Parking, Inc, supra Accordingly, for the reasons upon which we relied in asserting jurisdiction there, we assert jurisdiction here 3 The Respondent contends that the Trial Examiner erred in making certain corrections on the official transcript of hearing While it would have been better had such corrections been made after submission to the parties, we are unable to find that the changes made by him were prejudicial, involving as they do primarily grammatical or parenthetical matters. TRIAL EXAMINER'S DECISION I. PRELIMINARY STATEMENT ; ISSUES STANLEY N . OHLBAUM, Trial Examiner : This proceeding under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 et seq. ("Act"), based upon a complaint issued by the Regional Director for Region 7 of the National Labor Relations Board on November 12 upon a charge filed on October 18, 1971,'was tried before me in Detroit, Michigan, on January 24 and 26, 1972, with all parties participating throughout by counsel and afforded full opportunity to adduce testimonial and documentary proof, cross-examine, argue orally, propose findings and conclusions, and submit briefs. The record made at the trial, as well as a brief received from Respondent, on February 25, 1972, and supplemental submissions by stipulation relating to the preliminary issue of jurisdiction to be described, received on March 8, 1972, have been carefully considered. Respondent Employer is alleged to have violated Section 8(a)(4) and ( 1) of the Act by discharging its employee Donald Lee Smith (Charging Party here) on or about October 4 because he testified as a witness at the behest of General Counsel of the Board, during the trial in September 1971, before Trial Examiner Henry L. Jalette of other unfair labor practices proceedings (Cases 7-CA-8407[l], 7-CA-8563, and 7-RC-10321).2 Respon- dent's denial of this allegation presents the issue for determination here , in addition to the preliminary issue of jurisdiction tendered by Respondent. Upon the entire record,3 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES ; JURISDICTION At all material times, Respondent Employer, Airlines Parking, Inc., a Michigan corporation with principal office and place of business in Romulus, Michigan, has there I Unless otherwise specified, all dates herein are 1971. 2 These proceedings resulted in a decision (TXD-720-71, presently on appeal to the Board) in certain respects adverse to Respondent 3 Trial transcript is corrected in respect to obvious and typographical errors listed in Appendix A, which has been omitted from publication. The transcript also contains numerous other errors of this type , correction of which would be impracticable in view of their nature and extent. 197 NLRB No. 119 AIRLINES PARKING, INC. 763 engaged in the business of maintaining and operating motor vehicle parking facilities, consisting of about 1,500 spaces at Detroit (Michigan) Metropolitan Airport, as well as ancillary shuttle transportation facilities for airlines passengers and other patrons. Except for the foregoing facts, which it concedes, Respondent in one form or another denies, or denies knowledge or information sufficient to form a belief, as to the remaining operative allegations of the complaint concerning jurisdiction. The present case apses directly out of a consolidated unfair labor practices proceeding (Cases 7-CA-8407[I ], 7-CA-8563, 7-RC-10321, and 7-CA-8407[2]) tried before Trial Examiner Henry L. Jalette, also in Detroit in September 1971. In that proceeding, also involving the same Respondent as here (Airlines Parking, Inc.), the Charging Party here, Donald Lee Smith, testified as a witness against Airlines Parking, Inc., his employer. He was shortly thereafter discharged. It is the question of the legality of that discharge, allegedly in consequence of his testimony, which is in issue here. In the earlier consolidated proceeding before Trial Examiner Jalette, Respondent raised and litigated the threshold question of jurisdiction. The question was determined adversely to Respondent. The question is again raised here. However, in order to permit its resolution without undue relitigation, the parties have stipulated: (1) that in Case 7-RC-10321-one of those before Trial Examiner Jalette-Respondent Airlines Parking, Inc., had likewise disputed jurisdiction; that the Board's Regional Director there determined that jurisdiction existed; and that the Board by its Order of March 1, 1971, upheld the Regional Director's determination by denying Respon- dent's application for review thereof; (2) that thereafter, in the foregoing consolidated proceeding before Trial Exam- iner Jalette (including, as has been indicated, Case 7-RC-10321), the issue of jurisdiction was again raised by and determined adversely to Respondent (by written decision of Trial Examiner Jalette, TXD-720-7 1, issued by him on December 16, 1971, now on appeal to the Board); and (3) that the present Trial Examiner, in the instant proceeding, may officially notice the foregoing cases and the evidence therein concerning jurisdiction and determine that issue upon the basis thereof.4 Giving effect to the parties' stipulation, I have carefully considered the described cases officially noticed and the evidentiary matter which has been supplied. After so 4 The parties undertook to supply, for incorporation into the record here, copies of the specific pages or portions of the September 13-16 record bearing on that issue. That has been done and the material, received on March 8, 1972, incorporated into the record here as TX Exhs. 1 (50 pages, including forwarding letter of March 3, 1972, received from counsel for General Counsel) and 2 (13 pages, including forwarding letter of March 6, 1972, received from counsel for Respondent). 5 While I recognize that Trial Examiner Jalette's findings and determina- tions are not necessarily conclusive upon me , nevertheless I agree with his reasoning in reaching the same conclusion In so doing, I have among other things noted that the Board's rejection of the request of Respondent Airlines Parking, Inc., to review the determination of the Regional Director finding jurisdiction, and its approval of that determination, are binding upon me (Iowa Beef Packers, Inc., 144 NLRB 615, 616 and cases cited in fn. 2; Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America ), 119 NLRB 768, 773, Ranco, Inc, 109 NLRB 998, 1009-10, In. 8); that this entire matter was aired and litigated in the earlier doing, I am in agreement with my brother, Jalette, and in accord with the determination of the issue of jurisdiction made by him in his Decision of December 16, 1971 (TXD-720-71), substantially for the reasons there explicat- ed by him with succinctness and clarity .5 It is, accordingly, upon the basis of the record as a whole, including the described stipulation and officially noticed matters and evidence, found and concluded that at all times here material Respondent Airlines Parking, Inc., has been and is an employer engaged in commerce and in business activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that jurisdiction is properly asserted here. III. ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found As has been indicated, the central issue in this case is whether Respondent's discharge on or about October 4, 1971, of its employee, busdriver Donald Lee Smith, was because he had testified as a General Counsel witness at the unfair labor practices cases before Trial Examiner Jalette about 2 weeks prior to that. In its operation of its Detroit Metropolitan Airport parking business, Respondent, under its principals Wendell Flynn (president) and his wife, Margaret Flynn (manager of the business), does more than merely operate a large parking lot. It also provides, maintains, and operates shuttle transportation (consisting of airlines transport buses) between its parking lot and the air terminal buildings and hotels For this purpose, Respondent employs busdrivers to make such runs. Until his discharge on October 2, Donald Lee Smith was one of those busdrivers. Smith, a regular full-time busdriver for United Airlines since 1948, entered Respondent's employ in September 1969, for supplementary earnings as a busdriver. He continued in Respondent's employ for over 2 years, without any recorded adverse job history, until summarily discharged without notice, under circumstances to be described, on October 2, 1971, about 2 weeks after he had testified adversely to Respondent as a subpenaed witness in Board unfair labor practices proceedings against Respondent. Smith had worked, first as a full-time and later as a part- time 7 busdnver, for Respondent for 2 years before he was called by General Counsel to testify as a Government proceedings before Trial Examiner Jalette; that the unfair labor practices here involved grow directly out of the earlier proceedings before Trial Examiner Jalette, and that, upon careful consideration of the entire record as made on this issue in the instant case, I am in accord with the findings and conclusions of Trial Examiner Jalette, as well as with the reasons explicated by him for those findings and conclusions 6 In the aforedescnbed earlier unfair labor practices proceeding, it was determined that also a car rental business of Mr. and Mrs Flynn (American International Rent-a-Car of Metro) comprises with Airlines Parking , Inc., a single employer within the meaning of Sec. 2(2) of the Act. Testimony of Respondent's witness, O'Hara (one of its former supervisors), in the instant case indicates Respondent also provides charter bus services. r Smith entered Respondent's employ in September 1969 as a full-time (i.e., 6 days per week) busdnver; about a year later he became only a weekend busdnver for Respondent, continuing in that capacity until discharged a year later. Although Smith worked only Saturday and Sunday, on the 6:30 a.m.-2:30 p.m. shift, he occasionally also worked on other days (Continued) 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witness against his employer, Respondent herein, in September in unfair labor practices proceedings before Trial Examiner Jalette. According to Smith, his 2-year tenure, before he testified in those unfair labor practices proceedings, had not been characterized by any job difficulty or criticism of his job performance. On September 13, in compliance with Board subpena, Smith testified in unfair labor practices proceedings against Respondent-his employer-in Detroit before Trial Exam- iner Henry L. Jalette. Those proceedings-four consolidat- ed cases-among other things involved allegations that Respondent Airlines Parking, Inc., had engaged in an assortment of violations of Section 8(a)(1), (3), and (5) of the Act, including coercive interrogation of employees, solicitation of employees to withdraw from the Union, promises of wage increases and institution of other economic benefits to wean employees away from the Union, threats as to the futility of attempting to deal with Respondent collectively, discharge of employees for engaging in union activity, refusal to bargain with a union representing a clear majority of employees, and interfering with a Board-conducted election. In those proceedings, as stated in Trial Examiner Jalette's Decision: Employee Donald Smith testified that on or about March 6, [Respondent Airlines Parking, Inc., principal] Flynn spoke to him about the [N.L.R.B.] election to be held on March 10. Flynn asked him if he was going to vote and Smith said no because he would be away on his vacation. He told Flynn it did not matter to him one way or the other if they did get the Union in there, but a union would be good. Flynn told Smith if the Union got in, he would `close the God damn gates, or something like that,' and Flynn said if Smith should decide to vote he would like to have him vote for Respondent. At some point in the conversation, Flynn asked Smith if he had signed a union card and Smith told him he had. This testimony of Smith was substantially denied by Flynn and formed part of the very first subject (unlawful interrogation) dealt with by Trial Examiner Jalette in the body of his Decision. In resolving this issue, Smith's testimony was credited over that of Respondent's princi- pal, Flynn, with Trial Examiner Jalette characterizing Smith as an "honest witness," in contrast to Flynn, who "did not impress me favorably." Of Flynn, the Decision further states, in finding that his conduct as described by Smith violated the Act: His [i.e., Flynn's] course of conduct after the [Union's] demand for recognition indicates a clear purpose to thwart his employees in their attempt to exercise if required in emergency Smith operated one of three buses on his shift, these moved on cycle, one leaving for, after another arrived from, the airport, terminal, with al third in the parking lot at all times 8 N L R. B. v Gissel Packing Company, 395 U S 575 9 Smith worked the 6 30 a m.-2 30 p .m shift. 10 O'Hara is Respondent's Saturday and Duitsman its Sunday supervi- sor. Although, as will be shown, O'Hara testified as Respondent's witness, Duitsman was unexplainedly not called by Respondent to testify. 11 At the hearing, Smith elaborated on this incident. On Sunday, September 26-after he had testified before Trial Examiner Jalette in the previous unfair labor practices case-there were only two buses in operation, with Yardman Duitsman repairing the third Smith , whose shift starts at 6.30 a in., normally has lunch from 9 30-10 a.m. On this occasion, Section 7 rights, and nothing in his demeanor at the hearing suggested that he would hesitate to make the threat attributed to him by Smith. The decision of Trial Examiner Jalette is highly adverse to Respondent, finding it guilty of serious violation of the Act and, among other things, requiring it to bargain with the Union under the circumstances, even though the Union had lost the election-a strong, so-called Gissel8 remedy. About a week after thus testifying, Smith remarked to Respondent's principal, Flynn, while chauffeuring him that patrons were complaining about ruts in the driveway and inquired if it were due to be repaired. Flynn's unprovoked reply to Smith was, "Do you think the Union will let me?" This testimony by Smith was undisputed by Flynn, who did not testify. Shortly thereafter, on Saturday (October 2), Smith reported at 6:30 a.m. for work as usual.9 His immediate supervisor, Saturday Yardman O'Hara, in- structed him not to punch in until speaking to Mrs. Flynn (Respondent's manager), who would be out of town that weekend. Smith, who had driven in through a heavy fog, returned home without working that weekend. Before returning the following Saturday, on Thursday (i.e., October 7) Smith telephoned Mrs. Flynn and inquired of her concerning the situation. Mrs. Flynn replied that Smith did not "get along" with or follow the orders of Yardmen (supervisors) O'Hara and Duitsman,10 did not make his trips to and from the terminal on time, and had been observed eating a sandwich on a bus. Smith attempted to explain that he had had the sandwich because he had had no lunch since he was not relieved by Duitsman as he should have been.li Mrs. Flynn replied that she would let Smith know "when work is available." He has never heard from Flynn or Respondent since. Respondent takes the position that it discharged Smith for work derelictions. Its manager, Mrs. Flynn, and three other witnesses testified in support of this contention,12 while more witnesses testified to the contrary.13 Mrs. Flynn-Respondent's active manager-testified that basically there are three busdriver shifts with from four to seven buses or vans operating around the clock during the week; on weekends there are only three buses (except for Sunday afternoon, when there are five), operated by part-time help (including, formerly, Smith) basically on a one-in and one-out (i.e., into Respondent's parking lot and out to air terminal) and one-in-parking-lot basis. Respondent's "yardman," supervisor, or dispatcher on the "morning" (i.e., Smith's) shift on Saturdays is O'Hara; on Sundays it is Duitsman. (Of these, as indicated, only O'Hara testified. Neither Duitsman nor the Saturday or Sunday "afternoon" shift supervisors, Cunningham-and because Duitsman did not relieve him for that purpose , Smith had not yet had lunch at 12:30 p.m. when, under the circumstances, he had a sandwich on his bus, which had no passengers in it. Espying this, Duitsman remarked, "You know you can get fired for that9" Smith replied that he knew it-although such a "rule," as well as others, as will be shown, had never been enforced and was universally honored in the breach-but that he had not had any lunchtime . At this, Duitsman said nothing further and thereafter nothing else was said about it until his October 7 telephone conversation with Mrs. Flynn which has been described. Since Respondent did not produce Duitsman to controvert this, Smith's testimony to this effect stands uncontradicted and is credited. 12 Le, Mrs Flynn, O'Hara, Riddle, and Rooks. 13 1 e , Gardner, Johnson, Savage, Smith, and Stillwagon AIRLINES PARKING, INC. Dugan, testified.) Mrs. Flynn receives the reports of these weekend supervisors on the following Monday morning. The testimony of Mrs. Flynn and Respondent's other witnesses indicates that the alleged work derelictions for which it is claimed Smith was discharged consisted of eating and drinking on his bus, failing to take runs in turn, soliciting tips from passengers, and not following instruc- tions and "cooperating." These will be severally consid- ered. There is no doubt that Respondent at some time in the past maintained in its office on the parking lot some sort of posted notification to its drivers not to eat, drink, or read newspapers in their buses. Just when this notice was posted and later concededly removed, as well as its precise wording while posted, are in dispute and shrouded in uncertainty and doubt. But there is no doubt, and I find, that this "rule," if it was such and whatever it was, was honored in the breach rather than in the observance and that for practical purposes it was widely if not almost universally ignored and was not strictly enforced. Mrs. Flynn herself testified that these posted "rules of conduct" for drivers became "yellow with age" and were removed in April or May 1971 and were never replaced. Mrs. Flynn's own recollection of the wording of the erstwhile "rules" is on the hazy side, since, after first testifying that they had stated, "no eating, drinking or reading of a newspaper on the buses," she later altered her recollection to say that while still certain it specified no eating it merely proscribed coffee drinking. The other witnesses-on both sides of the case-who testified concerning the notice were similarly uncertain and vague, as well as in conflict, concerning its precise terms. However, as I have said, there is no real conflict that the notice was removed in the spring of 1971,14 and no credible conflict that lip service, at best, was paid to them. Respondent's own witness, Riddle-another busdnv- er-testified that the rules currently posted on Respon- dent's bulletin board deal only with advance notification concerning absences and that they are silent as to eating or drinking on buses. For present purposes, however, it may be assumed that up to April or May 1971, there was a notice, latterly "yellow with age," on Respondent's bulletin board, instructing its busdrivers to refrain from eating, drinking, or reading newspapers on their buses-without attempting to fathom its intent in such situations and circumstances as prolonged parking in the lot without passengers and off-duty periods such as lunchtimes; and also without attempting to assess the consequences of its removal in the spring of 1971 without replacement since 14 Notwithstanding the testimony , which I reject, of Respondent's witness and retired supervisor, O'Hara-a somewhat confused gentleman seemingly straining to be helpful to his former employer-that he is "absolutely . . sure" he saw the rules still posted on the bulletin board in September 1971 This testimony of O'Hara conflicts with even the testimony of Mrs. Flynn, conceding that the - "yellow with age" notice had been removed long before, in April or May 1971 is To be sure, several witnesses-notably Mrs. Flynn and busdriver Rooks-spoke of staff meetings held by Respondent's principal, Flynn (Mrs. Flynn's husband), in which he allegedly continued to provideorally to the busdnvers the same admonitions as had been contained in the removed posted notice But the testimony on this was somewhat vague and in the aggregate unconvincing. For example, Respondent's witness Rooks-anoth- er busdnver-specified that such a meeting took place more than two years ago" and that Smith was not present , and, after testifying, on direct 765 then, other than by a different posted notice omitting mention of those subjects.15 But it is entirely clear that such a requirement was widely ignored and never, except for the discharge of Smith in October, formed a basis for discharging any employee. Smith readily conceded that on occasion he has had food or coffee on the bus while parked without passengers; but he also swore that he was doing no more than the other busdrivers (whom he identified by name) were doing and had never (prior to the above- described occasion with Duitsman when the latter failed to relieve him for lunch on September 26, shortly after Smith's testimony in the earlier unfair labor practices proceeding) been questioned or criticized for so doing. In this regard, Smith's testimony is solidly corroborated by that of his former fellow busdrivers and employees Gardner, Johnson, Savage, and Stillwagon-each of whom testified with impressive and wholly unshaken credibility that it was the general practice for busdrivers to have lunch and coffee or soft drinks-indeed, in some cases, even such items as pizza, chicken, and soup-in their buses, while parked in the lot without passengers, to the knowledge of Mrs. Flynn as well as the "yardman"-dispatcher-supervi- sors, and that nobody (other than Smith) was ever disciplined, much less discharged, for this. The testimony of these witnesses was delivered with such impressive and unshaken positiveness and detail, including names of persons involved, that it is impossible for me not to credit them, in preference to that of Respondent's witnesses Mrs. Flynn, O'Hara, Riddle, and Rooks, to the extent that the latter is or may be at odds.16 Finally, it is to be observed that Mrs. Flynn-tenaciously tendentious a witness as she demonstrated herself to be at times-conceded that nobody other than Smith was ever discharged for eating, dunking, or reading on a bus, and, after so conceding, she asserted that Smith was discharged for other, additional reasons. Upon the basis of the record as a whole, I find that Smith's occasional eating and drinking on his bus, while empty of passengers as described, was in no way the reason or a reason for his discharge from Respondent's employ- ment. We pass, then, to the next reason assigned by Respon- dent for Smith's discharge-his alleged failure to make bus runs as his turn came. At the outset it should be noted that it is Respondent's practice to dispatch its buses from its parking lot to the air terminal through its "yardmen" or dispatcher-supervisors, whose job and responsibility this is. Mrs. Flynn testified that she had received oral reports from time to time that Smith was not taking his runs in turn, but examination, to such meetings conducted regularly by her husband, when confronted on cross-examination with testimony to the contrary by her husband at the previous unfair labor practices proceeding before Trial Examiner Jalette, Mrs. Flynn took refuge in the somewhat lame excuse that she did not recall such testimony by her husband. Nor, under these circumstances, did Flynn himself testify in the instant case . Atop this, Rooks impressed me as a witness of low credibility, pitifully eager to accommodate his employer. 16 1 say to the extent in view of such things as Mrs. Flynn's concession that at least busdnver Rooks, still in Respondent's employ, also drank coffee on his bus; Rooks' admission that "all of us [busdnvers) have" eaten on buses, without being fired or disciplined, and O'Hara's concession that he has observed various busdrivers, in addition to Smith, eating on their buses without being disciplined. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she did nothing about it before he was summarily fired at the beginning of October as described. The sources of these alleged reports to Mrs. Flynn are said to have been the yardmen or dispatcher-supervisors, O'Hara and Duitsman. Unexplainedly, Duitsman-concededly still in Respon- dent's employ-was not called to testify. O'Hara, now retired, testified that Smith frequently did not leave on time with his bus when it was his "turn" to go; according to O'Hara, Smith was supposed to leave "whether he had customers or not"; and-what evidently distressed O'Hara particularly-O'Hara had the impression that when he dispatched Smith to leave, Smith in doing so would "inch out of the yard as slow as possible just to try and burn me up." When Smith did not move out "in turn," O'Hara-ac- cording to his testimony-ordered the next bus in line to move out; and, if O'Hara is to be believed, he also got "a young fellow there" (unidentified) to transport passengers to the terminal in a station wagon.'? Cross-examination elicited from O'Hara the admissions that Smith never left a passenger waiting outside or inside a bus; that the Company maintained no dispatch records of any kind; that he has never seen or heard any other driver complain to Smith about not going out "in turn"; and that he himself (i.e., O'Hara) is "certain" that he never indicated to any other employee that he (O'Hara) had any complaint about or trouble with Smith.18 Busdrivers Riddle and Rooks, testifying as Respondent's witnesses, bore out O'Hara's testimony that Smith did not always move out "in turn." According to Riddle (who worked with Smith on Saturdays only), Smith did not move out in turn "a hundred percent of the time," while, on the contrary, Smith would also pull out ahead of Riddle when it was Riddle's turn to move out; indeed, at the hearing, Riddle attempted the seemingly impossible task of describing a situation, apparently regarded by Riddle as highly irregular, where Smith pulled out first when Riddle should have even though Smith was first in line. Riddle conceded that it was O'Hara who dispatched the runs, that when he left "out of turn" it was on O'Hara's dispatch; that his complaints about Smith not moving out in turn involved situations where O'Hara had dispatched one or the other; and that O'Hara did indeed at times wave out a "second" bus before a "first" bus.19 Busdriver Rooks (who worked with Smith generally on Saturdays only) testified categorically that over a period of 8-10 months as "a constant thing" Smith took runs only "when he wanted to . . . . If he didn't feel like going he didn't go"-a statement which I cannot regard as other than a gross exaggeration of a character with other testimonial yield of this witness. Rooks conceded that when he moved out "ahead" of Smith it was on O'Hara's dispatch. Smith absolutely denies failing to take a run or move out "in turn," or not "in turn" if so required by his dispatcher, O'Hara or Duitsman. It is apparent from the testimony of 17 Details as to the latter were not furnished It was also unexplained why this should have been necessary, with a third bus always waiting with a driver, in the lot 18 This is inconsistent with the testimony of Respondent's witness, Riddle, as recounted below. 19 Although the reasons for doing this were unexplored, many, having no connection with dereliction on any driver's part, may readily be surmised 20 For example , Riddle would apparently have it that he observed Smith busdnver Johnson (testifying as a General Counsel witness, he swore that he never observed any irregularity of Smith in meeting his schedules) as well as that of other witnesses-on both sides-that the bus "runs" were not wholly mechanical, so that an outgoing bus did not necessarily leave as soon as an incoming bus arrived, and that buses were not invariably dispatched strictly "in turn." Resolution of the issue of whether or not Smith failed to meet his schedules or take his runs "in turn" involves essentially a choice of credibility among witnesses, since Respondent presented no schedules or records and there is no objective evidence to support either of the conflicting positions. Upon the basis of comparative testimonial demeanor observations as carefully scrutinized, I have no hesitation in preferring the testimony of General Counsel's side to that of Respondent. Smith, as well as other General Counsel witnesses, impressed me very favorably as they testified on the stand. Unfortunately, I cannot say the same for those of Respondent. O'Hara, one of Respondent's retired yardmen or dispatchers here involved, seemed openly personally hostile toward Smith and somewhat confused as to certain facts. He also contradicted the testimony of other of Respondent' s witnesses. He also, after first flatly swearing he had never discussed the subject of his testimony with either of the Flynns-or their counsel, attempted to hedge his way out of this clearly incredible statement. Riddle, also demonstrating an emotional hostili- ty toward Smith, was unsure of himself and unconvincing. His evident animosity toward Smith, coupled with his seeming desire to take every position as adverse as possible to Smith,20 led him to testify that Yardman O'Hara had told him as early as March 1971 that he (O'Hara) was "having trouble" with Smith and would "have to get rid of [him]" and fire him "some day"-statements that O'Hara (also Respondent's witness) flatly denies. Rooks left an indelible impression upon me of a servitor pitifully anxious to accommodate his employer at any cost-even to the extent of manufacturing additions to the posted (and later removed) rules for busdrivers, other than those testified to by any witness, including Mrs. Flynn herself, while later forced to retreat on cross-examination and concede he was unsure of what the rules were. As for Mrs. Flynn, she is not only a principal in the case and thus directly interested, but her testimonial performance demonstrated her to be an evasive witness, truculent and even somewhat bellicose at times (even pounding on the witness box until instructed to desist), who to my observation appeared to be overblowing and even inventing when it suited her purpose. As already stated, Respondent's other yardman-dispatcher, Duitsman, who might have contributed toward resolution of the testimonial conflict, was unexplainedly kept off the witness stand by Respondent. It is, furthermore, conceded that, with only a single possible exception,21 no driver other than Smith has been discharged or disciplined for this alone of all drivers at any time eating anything on a bus 21 I e., one Hudick. I say "possible" exception not only because of my basic reservations with regard to Mrs Flynn as a witness in her own behalf, but also because Respondent's yardman -dispatcher, Duitsman-who, according to Mrs. Flynn, has knowledge of the facts-was not called to testify, Mrs. Flynn's testimony on this subject is conclusory, wholly uncorroborated, and in no reasonable way susceptible to extraneous verification Respondent's other yardman-dispatcher, O'Hara, denied any AIRLINES PARKING, INC. reason. While, it is true, this would not protect Smith from discharge for that reason, I have great difficulty in believing that if Smith's derelictions in this regard had been nearly as great or prolonged as is now asserted, Respon- dent would have tolerated him in its employ as long as it did. Upon the total record here presented, I do not credit Respondent's contention that it discharged Smith on October 2 because he had not been meeting his scheduled runs or because he was not taking them in turn. - - Respondent's next alleged reason for discharging Smith on October 2 was that he solicited tips from passengers. In this regard, Respondent's instructions22 to its busdrivers did not preclude the acceptance of tips from customers, but merely the dunning or "toting" of customers for tips. Smith absolutely denies soliciting a tip from a customer and I believe him. The record fails to establish a single specific, credible, or verifiable instance of such an incident, let alone such a practice, on the part of Smith.23 I find that Smith was not discharged by Respondent on October 2 for this reason. We move to the final reason advanced by Respondent for discharging Smith on October 2; namely, that he was not following instructions or "cooperating." Vague and conclusory here at best, this contention revolves around the core elements or subjects which have already been discussed and considered-eating and drinking on the bus, failure to take runs in turn, and soliciting tips-it being contended by Respondent that Smith's failure to mend his ways in these respects, particularly after being reminded to do so, caused his discharge. I have, however, found that these job derelictions either did not occur or that they were not really job derelictions or at least not seriously so such as ever to have resulted in discipline or substantial discipline to any employee, much less discharge. On the matter of whether Smith was ordered, or told, to mend his ways, there is the usual conflict of testimony, with Mrs. Flynn and O'Hara maintaining that Smith was warned -orally, to be sure-and Smith stoutly denying it.24 On balance, for reasons already explicated, my comparative testimonial demeanor observations left me with a strong tilt toward Smith, whose testimony in this regard I prefer and accordingly credit. I find that Smith was not discharged by Respondent on October 2 because of failure to follow instructions or "cooperate." B. Recapitulation and Rationale In summary, then, there is presented a situation where an employee of several years standing is, precipitately and knowledge of any driver other than Smith being discharged for this reason 22 Oral, according to Mrs Flynn and Riddle; written, according to Rooks alone of the witnesses 23 I reject the testimony of Respondent's witness Rooks-who even, alone of all witnesses, at first indicated, but later appeared to retract, that there was a posted written rule on this-that he has "seen " Smith soliciting tips The difference between "accepting" a tip and " soliciting" a tip may be difficult if not impossible to establish without being within earshot or at least without adequate factual detail as to what is "observed" Rooks -whom I have had occasion to characterize as an extremely accommoda- tive witness toward Respondent-provided neither I similarly reject Mrs. Flynn's testimonial production involving an unidentifiable alleged source of information concerning tips, which Mrs Flynn conceded Smith disputed and denied 767 without warning or advance notification, suddenly con- fronted with discharge upon reporting to work as usual one morning at 6:30 a.m. Later, seeking an explanation, he is told that he had previously been guilty of miscellaneous job derelictions or infractions-none of which, however, had ever resulted in any disciplinary measure, much less discharge, either to him or any other employee. One of these-eating and/or drinking coffee or a soft dunk on an unoccupied bus-was and is a practice regularly indulged in by busdrivers, none of whom had been disciplined therefor. Another alleged reason-not taking bus runs in turn-has not been established to have occurred, nor if as serious as now urged would it conceivably have been tolerated as long as described. Still another-soliciting tips-has likewise not been established. The final alleged reason, basically involving the foregoing three and Respon- dent's alleged warnings to the employee on these subjects and his alleged "noncooperativeness," strenuously disput- ed, is not credited. Concededly, other employees have not been comparably disciplined for far more serious dere- lictions, such as leaving a bus unattended (Rooks). What has been omitted from this summary is the one intervening, hard fact that did occur shortly before the employee was discharged, and which in the total surrounding context forms the only plausible linchpin for that action. This is, that some 2 weeks-actually only 2 working days-before his discharge, the employee, in obedience to Federal subpena, had testified as a Government witness adversely to his employer in unfair labor practice proceedings resulting not only in the employee's testimony being credited in preference to that of the employer's principal (Flynn) but also in a decision and potential order strongly adverse to the employer. The discharge of Smith on October 2 completed the roster of the separation from Respondent employer's employ (by discharge found to be unlawful in the earlier unfair labor practice proceeding; or otherwise, such as resignation) of all drivers who had testified adversely to Respondent in the previous unfair labor practice proceeding. I reject Mrs. Flynn's testimony that the decision to discharge Smith was made some weeks prior to his testifying in the earlier Board case but deferred until after he testified.25 What emerges, then, as hard fact is a picture of a long- term employee precipitately discharged after testifying under subpena in a Board proceeding against his employer. Smith's testimony in that proceeding, particularly within the context of the high degree of union animus and substantial unfair labor practices26 described and found in Trial Examiner Jalette's Decision, seems ample to have 24 Smith's exchange with Duitsman-shortly after he had testified in the previous Board proceedings and shortly before his discharge-involving the incident of Smith's late sandwich lunch on his parked bus when Duitsman failed to relieve him for lunch because of an emergency, and Duitsman's acceptance of that explanation, will be recalled. Smith further conceded that Duitsman had on occasion-long before his discharge-remarked that he was spending too much time in the office, but that Smith pointed out he never missed a schedule and always left as soon as another bus arrived, an explanation which was apparently satisfactory to Duitsman . As already indicated, Duitsman was not called to testify 25 Although I reject this claim as sham, it may nevertheless bear the germ of a certain truth, namely, that Smith would not have been discharged if he had not testified adversely-i e., truthfully, as found-against Respondent. 26 antiunion bias and demonstrated unlawful hostility are proper (Continued) 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provoked the Flynns to retaliation against him. My own observations and impressions of Mrs. Flynn as she testified at length in the instant proceeding (her husband did not testify) not only did not dispel or weaken, but fortified such a conclusion.27 The timing of Smith's discharge (N.L.R.B. v. Sequoyah Mills, Inc, 409 F.2d 606 (C.A. 10); Tele-Trip Company v. N.L.R.B., 340 F.2d 575, 579-580 (C.A. 4); N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S. 829) vis-a-vis his testimony as well as the nature and effect of that testimony in the earlier Board proceedings, the precipitate character of the discharge (Tele-Trip, supra; N.L.R.B. v. Council Manufacturing Corpo- ration, 334 F.2d 161, 164 (C.A. 8)), the absence of discharge of other employees for similar reasons (N.LR.B. v. Nabors, 196 F.2d 272, 275-276 (C.A. 5), cert. denied, 344 U.S. 865), and Respondent's implausible explanations for its action (N.LR.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-246 (C.A. 8), cert. denied, 396 U.S. 823), in the context of the record as a whole, persuade me that the reasons advanced by Respondent for its discharge of Smith on October 2, 1971, were and are pretextuous, and that the real, compelling, and actual reason for that discharge was Smith's testimony in the earlier Board proceedings. I so find. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. At all material times, Airlines Parking, Inc., Respon- dent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Jurisdiction is properly asserted in this proceeding. 3. On October 2, 1971, Respondent terminated the employment of, and has since failed to rehire, reinstate, or permit to work in his former or substantially equivalent position, its employee Donald Lee Smith because he had testified as a subpenaed witness on behalf of General Counsel of the National Labor Relations Board, in Detroit, Michigan, on or about September 13, 1971, before Trial Examiner Henry L. Jalette, in National Labor Relations Board proceedings against said Respondent, Airlines Parking, Inc., consolidated . Cases 7-CA-8407(l), 7-CA-8563, 7-RC-10321, and 7-CA-8407(2). 4. In and by said discharge, Respondent discriminated and is continuing to discriminate against said Donald Lee Smith and employees for giving testimony under the Act, constituting unfair labor practices in violation of Section 8(a)(4) of the Act. 5. In and by said discharge, Respondent interfered with, restrained, and coerced, and is continuing to interfere with, restrain, and coerce, Donald Lee Smith and employ- ees in the exercise of rights guaranteed in Section 7, and highly significant factors for Board evaluation in determining motive " N L R B v Dan River Mills, Incorporated, 274 F.2d 381, 384 (C A 5). 27 In addition to what I have already said about Mrs. Flynn, she impressed me as a strong-willed, determined , obdurate person resentful of any attempted "outside interference" with her running her business as she sees fit and who would brook no opposition or unquestioned "loyalty" to her interests No personal reflection upon her is here intended, nor any imputation that this necessarily reflects adversely upon her as an individual, constituting unfair labor practices in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. REMEDY Remedying the unfair labor practices composing the violations of Section 8(a)(4) and (1) which have been found requires the usual cease-and-desist order and affirmative relief customarily ordered in cases of this nature, involving interference, restraint, and coercion, and unlawful dis- charge and failure to reinstate. The recommended Order will, accordingly, require Respondent, to cease and desist from the unfair labor practices found; to expunge from its records the reasons or bases herein alleged by Respondent for the discharge of the unlawfully discharged employee; and to offer said employee immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered in consequence of his unlawful discharge, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of Respondent's offer to reinstate him to his former or substantially equivalent position, less his net earnings if any during such period, backpay and interest to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also be required to make available necessary records for computation of backpay. The Order shall also provide for the usual notice posting and appropriate notification in case the discharged employee is now in the Armed Forces of the United States. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 28 ORDER It is hereby ordered that Airlines Parking, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: a. Discharging or threatening to discharge or otherwise discipline any employee, or in any other manner discrimi- nating against any employee in regard to the hire or tenure of his employment or any term or condition of employ- ment, because he gives testimony under the National Labor Relations Act, as amended. b. In any like or related manner interfering with, restraining, or coercing employees in the exercise of any right guaranteed in Section 7 of said Act. nor that she has less than a full right to entertain her own private views 28 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. AIRLINES PARKING, INC. 2. Take the following affirmative actions which are necessary to effectuate the policies of the Act: a. Post at its Romulus, Michigan, parking lot copies of the notice attached hereto marked "Appendix B." 29 Copies of said notice, on forms provided by the Board's Regional Director for Region 7 shall, after being signed by Respondent's authorized representative, be posted by Respondent in its said premises immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places where notices to employ- ees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material. b. Offer to Donald Lee Smith immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered in conse- quence of the discrimination against him, in the manner set forth in the "Remedy" portion of the Decision of which this Order forms a part. In the event that said employee is presently serving in the Armed Forces of the United States, immediately notify him of his right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. c. Expunge from its records all notations or statements indicating or to the effect that the discharge of Donald Lee Smith on October 2, 1971, was based upon or related to any misconduct, impropriety, job dereliction or infraction or shortcoming, or fault on his part or in connection with his job or work performance. d. 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 determine the amounts of backpay due and the extent of compliance with the terms of this Order. e. Notify the Regional Director for Region 7, in wasting, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.30 29 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the Notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 30 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith." APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 769 present their evidence and arguments, the decision has been announced that Airlines Parking, Inc., has violated the National Labor Relations Act, and we have therefore been ordered to post this notice and carry out what it says. The National Labor Relations Act guarantees you, among other things, the right to give testimony under the Act free of reprisals. Accordingly, we hereby assure you: WE WILL respect your right under the National Labor Relations Act to testify before the National Labor Relations Board. WE WILL NOT discharge, threaten with discharge, discipline, or otherwise retaliate against any employee because he testifies before the National Labor Rela- tions Board. WE WILL NOT in any similar manner interfere with, restrain, or coerce you in the exercise of any of your rights under the National Labor Relations Act. WE WILL offer Donald Lee Smith, who has been found to have been discharged on October 2, 1971, because he testified in a National Labor Relations Board proceeding against us, immediate and full reinstatement to his former job or a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and will pay him backpay plus interest for any wages lost by him, and we will also eliminate from his record all statements that his discharge was due to his fault or because of anything he did. AIRLINES PARKING, INC. (Employer) Dated By (Representative) (Title) If the above employee is serving in the Armed Forces of the United States, we shall immediately notify him of his right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226. Tele- phone 313-226-3200. After a trial at which all sides had full opportunity to