Scalera Bus Service, Inc.

SCALERA BUS SERVICE, INC. 63 Scalera Bus Service, Inc. and Barbara L. Pallister. Case 22-CA-5358 April 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 23, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions 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 attached Decision in light of the exceptions and briefs and finds merit in certain of the General Counsel's exceptions. Accordingly, the Board has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that Joan Morella, Angelina Baldasarre, Eleanor Vessels, Eileen Paulsen, and Barbara Pallister were unlawful- ly refused reinstatement for 1 or 2 days in February 1973 in violation of Section 8(a)(3) of the Act. As to Paulsen and Pallister, however, we further find, contrary to the Administrative Law Judge, that on February 5, 1973, the Respondent unlawfully dis- charged them and since that date has unlawfully refused to reinstate them in violation of Section 8(a)(3). The following facts surrounding the discharges and the refusals of reinstatement are amply supported by the record. Thus, as of January 31, 1973, the Union, Scalera Bus Drivers Association, represented a majority of the Respondent's employees in an appropriate unit. On that same day, a number of the Respondent's schoolbus drivers, including Morella, Baldasarre, Vessels, Pallister, and Paulsen, who had unsucessfully sought a written collective-bargainir_,, agreement for the Union from the Respondent, engaged in a concerted work stoppage and failed to report for work for their scheduled runs that afternoon. The stoppage was short lived, and on February 1 the above-named drivers sought to return to work, but were refused. The Administrative Law Judge found, and we agree, that the refusal to i In part, the General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolu- tions with respect to credibility unless the clear preponderance of all of the reinstate them on February 1 did not violate the Act, inasmuch as the Respondent had secured substitute drivers for that day. However, when they all applied again on February 2, and again on February 5, except for Morella, and were again refused, the Respondent had not yet secured substitute drivers for that day. As to Morella, Baldasarre, and Vessels, we agree with the Administrative Law Judge that Morelia was. unlawfully refused reinstatement on February 2 and that Baldasarre , Vessels, Pallister, and Paulsen were unlawfully refused reinstatement on February 2 and 5, 1973, in violation of Section 8(aX3). However, we reject, as without merit, both his finding that Pallister and Paulsen were not unlawfully discharged on February 5, as alleged in the complaint, as well as the basis for that finding; namely, (1) that the Respon- dent could lawfully require the drivers to interview Kuchin, the Respondent's representative, as a pre- condition for their reinstatement, which Pallister and Paulsen failed to do, and (2) that both the drivers and the Respondent must have intended their applications for reinstatement to apply only on the days on which they were made, without regard to their future reinstatement rights. In this regard, the Administrative Law Judge stated: For the purposes of this case I will accept the proposition that the Company had the lawful right to insist that each striking employee make a personal application for reinstatement to Kuchin. However, as a condition to the exercise of such right the Respondent was under a duty to inform each striker who asked for reinstatement of the need to speak to Kuchin. Thus, the issues regarding the alleged discriminations turn upon whether and when the five alleged discriminatees were notified of such requirement.15 15 . Based on the fact that they reapplied on successive work days and that the Company did not discourage them from doing so, the striking employees and the Company treated each application for work and each denial as operative only for the day in question and not as a determination of their future status. It is unnecessary, therefore, to decide what the situation would be had any of the alleged discnminatees, without being told that they were required to speak directly to Kuchin, not applied for reinstatement a second time after once being denied reinstatement. We specifically disavow these statements, as in our view they are contrary to the principles enunciated by the United States Supreme Courtin N. L. R. B. v. Fleet- wood Trailer Co., 389 U.S. 375 (1967), and by the Board in The Laidlaw Corporation, 171 NLRB 1366. As to the mandatory requirement of an individual relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his credibility findings. 210 NLRB No. 17 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interview with management as a condition precedent to reinstatement, in Fleetwood Trailer the Court held that an employer, in refusing to reinstate strikers, must show that the action was due to legitimate and sub- stantial business justification, that the burden of prov- ing such justification is on the employer, and that the primary responsibility for striking a proper balance between the asserted business justifications and the invasion of employee rights rests with the Board rather than the courts. No such justification has herein been shown. As to the employees' rights to reinstatement, the court further pointed out that, by virtue of Section 2(3) of the Act, an individual whose work ceases due to a labor dispute remains an employee if he has not obtained other regular or substantially equivalent employment. In thus explicitly rejecting the argument that reinstatement rights must be determined at the time of initial application, the Court stated (389 U.S. at 380-381); This basic right to jobs cannot depend on job availability as of the moment when applications are filed. The right to reinstatement does not depend upon technicalities relating to application. On the contrary, the status of the strikers as an employee continues until he has obtained "other regular and substantially equivalent employ- ment." (29 U.S.C. Section 15213). unlawfully refused to reinstate them since February 2, 1973. Accordingly, we shall order that Respondent make said employees whole for the loss of earnings they suffered by reason of Respondent's failure and refusal to reinstate them on the stated dates . Interest at the rate of 6 percent per annum shall be added to such backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent's unlawful activities described above, particularly its reprisals against the drivers who participated in the January 31 strike, infringed upon employees' right to engage in a concerted activity which is subject to the protective guarantees of Section 7 and also is specifically sanctioned by Section 13 of the Act. Its unfair labor practices found herein are potentially related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future may be anticipated from Respondent's conduct in the past. The preven- tive purpose of the Act will be thwarted unless the recommended Order herein is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. We therefore must conclude that Pallister and Paulsen were unlawfully discharged on February 5, 1973, and have been unlawfully denied reinstatement since February 2, 1973. Accordingly, we shall order that they be offered reinstatement with backpay commencing as of February 2, 1973, as herein set forth below.2 In view of our finding, we hereby substitute the following, Remedy, Order, and notice for those recommended by the Administrative Law Judge: THE REMEDY Having found that Respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. We have found that Scalera unlawfully failed and refused to reinstate Angelina Baldasarre and Eleanor Vessels on February 2 and 5, 1973; unlawfully failed and refused to reinstate Joan Morella on February 2, 1973; and unlawfully discharged Eileen Paulsen and Barbara Pallister, on February 5, 1973, and has ORDER Respondent, Scalera Bus Service, Inc., South Plainfield, New Jersey, its officers , agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening to take reprisals against employees who make unconditional applications for reinstate- ment at a time when their jobs are not filled by permanent replacements, or by engaging in other reprisals against such strikers in order to discourage membership in Scalera School Bus Drivers' Associa- tion, or any other labor organization. (b) Discriminating against employees who engage in a lawful strike by failing or refusing to reinstate striking employees who participate in a lawful strike. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to employees Barbara Pallister and Eileen Paulsen reinstatement to their former jobs or, if those i Absent unusual circumstances , Chairman Miller would accept the Place, who was actually an official of a related company. Here , however, reasoning of the Administrative Law Judge that Respondent could lawfully stokers Pallister and Paulsen had been discnmmatonly denied reinstate- require the strikers to apply for reinstatement directly to Kuchm , ment on a previous day, and, therefore, by February 5, were in the position Respondent's president and principal operating official, rather than to of discrimmatees who were entitled to an offer of reinstatement. SCALERA BUS SERVICE, INC. 65 jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for the loss of earnings, in the manner set forth in The Remedy section. (b) Make Joan Morella, Angelina Baldasarre, and Eleanor Vessels whole for the loss of earnings suffered by them by reason of Respondent's unlaw- ful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and. copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its place of business in South Plainfield, New Jersey, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representa- tive, shall be posted by it 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that this 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." Drivers Association, or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer Eileen Paulsen and Barbara Pallister reinstatement to their former positions or, if those positions are no longer available, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make each of them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Decision entitled "The Remedy." WE WILL make whole Joan Morella, Angelina Baldasarre, and Eleanor Vessels for the loss of earnings they have suffered by reason of the unlawful refusal to reinstate them to their jobs on February 2 and 5, 1973, after they had made unconditional applications for reinstatement. SCALERA Bus SERVICE, INC. (Employer) Dated By (Representative) (Title) 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to take reprisals against any employee who participates in a lawful strike. WE WILL NOT discriminate against any employ- ee for engaging in a lawful strike by failing or refusing to reinstate any striker who makes an unconditional application for reinstatement at a time when his or her job is not filled by a permanent replacement, or by engaging in any other reprisals against any such striker in order to discourage membership in Scalera School Bus DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed on March 23, 1973, by Barbara Pallister, an individual, a complaint was issued on April 27, 1973, alleging that Scalera Bus Service, Inc., herein called the Company or Scalera, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(axl) and (3) of the National Labor Relations Act, as amended. In substance, the complaint alleges that : ( 1) because of their membership in and activities on behAff a labor organization and because of their participation in a 1-day strike on January 31, 1973, Respondent refused for the period between February 1 and 6 to reinstate five employees, Joan Morella, Angelina,,bakh serre, Eileen Paulsen, Barbara Pallister, and Eleanor V ssels, who, on 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1, 1973, had made unconditional offers to return to work, and Respondent on February 5, 1973, discharged Pallister and Paulsen ; and (2) by reason of said refusals to reinstate and said discharges and other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent in its answer to the complaint denied that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Newark, New Jersey, on May 21, 22, 23, and 24 and June 25, 1973. Subsequent to the hearing, General Counsel and Respondent filed briefs with the Administra- tive Law Judge. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a New Jersey corporation, has its office and place of business at 601 New Market Avenue, South Plainfield, New Jersey (the entire premises at the New Market address is hereinafter referred to as the South Plainfield terminal or premises), where it is engaged in the business of providing schoolbus transportation and related charter bus service. During its fiscal year ended April 30, 1972, which period is representative of Respondent's operations, the Company's gross revenue was $215,239. As the Board normally does not exercise jurisdiction with respect to transportation enterprises that do not have revenue of at least $250,000 per year' the complaint alleges, but the answer denies, that jurisdiction exists because there is a single employer relationship between the Company and another transportation operation, Suburban Transit Corp., herein called Suburban, over which the Board's jurisdiction is clear. Suburban , also a New Jersey corporation, maintains its principal office and place of business at 750 South Somerset Street, New Brunswick, New Jersey, herein called the New Brunswick terminal, and also maintains terminals at other locations including at the South Plainfield premises. Suburban is engaged in providing interstate passenger transportation by motor coach and related services. During the calendar year 1972, which period is representative of its operations, Suburban's gross revenue exceeded $500,000 of which in excess of $50,000 was derived from transportation services furnished to passengers traveling between the State of New Jersey and other States. Scalera employs between 20 and 25 regular drivers who operate its schoolbuses.2 The drivers work part time. Most are women who are supplementing family incomes although a few men, who either have full-time employment elsewhere or are retired, also drive regularly for Scalera. In addition, other persons, including Suburban drivers, are employed by Scalera to drive its buses on an irregular, as needed, basis. The South Plainfield terminal is used not only by Scalera but also by Suburban and a third company , Plainfield Transit Bus Company. There is separate garage space for the vehicles of each company, but there is only one maintenance facility on the premises. Scalera, Plainfield, and Suburban, respectively, employ two, one, and six mechanics at the South Plainfield terminal. All the mechanics are supervised by Vince Costabile, who is paid separately by the three companies. Scalera has no clerical facilities. Its clerical work, including the preparation of payrolls, is performed by Suburban at the New Brunswick terminal and Scalera reimburses Suburban for such services. Scalera maintains its separate policies of insur- ance and provides for its own bank and business credit. Until his death in April 1973 the principal owner and operating official of Suburban was Morris Lipshitz. All the stock of Suburban is owned by the estate of Morris Lipshitz and by his widow . Morris Lipshitz had been president of Suburban . As of the date of the hearing in this case the position was still vacant . Secretary of Suburban is Sidney Kuchin and vice president of that company is Lee Jacobs. Since the death of Morris Lipshitz the executive authority of Suburban is being exercised by four individu- als who are Sidney Kuchin, Lee Jacobs, Herman Lipschitz, and Don Engle. The stock of Scalera is owned equally by Kuchin, Jacobs, and the estate of Peter Lebrano . Sidney Kuchin is president and principal operating official of Scalers. The only other officer of Scalers is Lee Jacobs, who is secretary-treasurer. Both Sidney Kuchin and Lee Jacobs are sons-in-law of the late Morris Lipshitz. Sidney Kuchin testified that he alone is responsible for the day-to-day operations of Scalera, but when he is absent for prolonged periods, as when ill or on vacation, Lee Jacobs substitutes for him. This testimony does not correspond with other evidence in the case. Normally Kuchin is at the South Plainfield terminal only 2 or 3 hours each day from about 8:30 until 10:30 or 11 :30 a.m. Jacobs is there so seldom that some of the Scalera drivers never met him. In the absence of Kuchin, which includes the early morning hours and the afternoons , the Scalera employees look to Harry Place, who is the dispatcher and safety supervisor for Suburban at the South Plainfield terminal, as the person in charge of Scalera's operations.3 Thus, Ellen Wosatka, the dispatcher for Scalera, testified that when Kuchin is not present she discusses operations' problems with Place. Her most frequent problem arises when she needs additional drivers. At such times Place usually arranges for Suburban drivers to drive for Scalera. Also, maintenance and repair requests for Scalera buses are frequently routed through Place. Although Harry Place testified that he had "no connections with Scalera," he further testified that : ( 1) he dispatches for Scalera "if trouble begins where someone needs help;" (2) he interviews applicants for employment with Scalera and i Charleston Transit Company, 123 NLRB 1296. 3 I do not credit Kuchin's testimony that in his absence Ellen Wosatka is 2 Schoolbuses are smaller than motor coaches that are used in interstate in charge of the drivers and "handles emergencies as they anse" because, operations. Also, because of their distinctive color and accessories, among other reasons, it is effectively contradicted by other witnesses, schoolbuses are not suitable for other uses. including Place and Wosatka. SCALERA BUS SERVICE, INC. 67 makes recommendations to Kuchin regarding the qualifi- cations of the applicants,4 and (3) upon the instructions of Kuchin he has disciplined Scalera drivers . Further, Place has represented Scalera at a school board hearing where a problem regarding a Scalera driver was on the agenda for discussion, and from time to time has operated a bus for Scalera. I find, contrary to Kuchin's testimony, that Harry Place is involved in the day-to-day operations of Scalera and, although the extent of his authority is not clear, he exercises greater managerial authority with respect to the operations of Scalera and the direction of Scalera person- nel than anyone other than Kuchin. Sidney Kuchin testified that he had been general manager of Suburban until about a year before the hearing in this case when because of illness he had to curtail his activities.5 He further testified that he is no longer involved with employee relations at Suburban and that the person now in charge is his successor, Ronald Kohn. However, according to Kuchin, in the performance of his duties, Kohn answers to Kuchin and Jacobs and Kuchin assumes responsibility for whatever Kohn does in regard to employee relations. In addition to Kuchin's responsibility for Suburban's overall operations, he exercises direct authority over Suburban's operations at the South Plainfield terminal.6 Thus, Harry Place testified that Kuchin is his immediate supervisor and he consults with Kuchin about "anything in general that would come up that should be brought to his attention, accidents of drivers, safety films that we had for drivers, vacations . . . . Anything pertaining as far as transportation in the Suburban Division." Drivers for Scalera, with few exceptions, are not qualified to drive for Suburban. However, Suburban drivers are qualified to drive schoolbuses, and Kuchin testified that Suburban drivers are employed to drive for Scalera "as often as we needed them." When a Suburban employee drives for Scalera he is paid by Suburban and the latter company is subsequently reimbursed by Scalera. Upon the foregoing, I find that Scalera and Suburban are related enterprises, which cooperate closely in their operations, that significant managerial control, particularly in regard to employee relations, is exercised over both companies by the same individuals and, therefore, they constitute a single employer within the meaning of Section 2(2) of the Act. Suburban Transit Corp., 203 NLRB No. 69. Accordingly, I further find that Scalera is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to exercise jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED Scalera School Bus Drivers' Association (herein called the Association) is a voluntary organization. Membership 4 Thus, Place testified- Q. On the occasions when you made certain recommendations regarding a driver or their qualifications or what have you, do you know whether Mr Kuchm himself makes any further investigation about the drivers? A. Yes, he does, he calls the past employers and he will go over the application sometimes with me. Sometimes there is quite a tussel [sic I is open only to employees of Scalera. Although its bylaws were not professionally prepared and do not set forth the purposes of the Association with precision, it is clear therefrom that a purpose of the Association is to deal with Scalera concerning grievances and conditions of work. The evidence further shows that the Association holds meetings regularly, collects dues from its members , and from time to time has dealt with Sidney Kuchin, the principal operating official of Scalera, concerning grievances and conditions of work. I find that the Association is a labor organization within the meaning of Section 2(5) of the Act. An issue is raised as to whether, during the relevant times particularly on January 31, 1973, the Association was the majority representative of Scalera's drivers. The parties stipulated that 20 named individuals were in the unit on the critical date, but there is a dispute as to whether 7 other persons also should be included. The Association does not maintain records of the kind which clearly reflect its membership . Its monthly meetings, including the January 26, 1973, meeting, were attended by approximately 13 drivers. The treasurer's records show that of the 20 persons who the parties agree were in the unit on January 31, 1973, 8 paid dues in December 1972 and January 1973 and 6 more paid dues in December but not in January. The delinquencies for January on the part of the latter six appear to have been normal tardiness in making payments rather than any desire on the members' part to withdraw from the Association . In addition, Eleanor Vessels, who was hired in December 1972 and did not pay dues for that month, paid dues for January 1973. In the absence of any other membership list, the payment of dues can be taken to signify the intention on the part of the Scalera drivers to be members of the Association. Accord- ingly, I further find that as of January 31, 1973, the Association represented a membership of 15 persons all of whom were included in an appropriate unit of Scalera drivers. Respondent contends that the following seven persons also should be included in the unit : McCauley, Caporoso, Quashnick, Pheasant, Guyette, Caswell, and Hardgrove. The unit in question is composed of part-time employees. Under applicable Board principles those who work regularly for the Company are included in the unit but those who drive for the Company on irregular, uncertain occasions are excluded. In agreement with General Counsel I find that the seven employees should be excluded from the unit. None of the seven have scheduled runs. Consequently, there is no certainty or regularity to their employment with Scalera. Furthermore: (1) Caporoso drove for Scalera less than 1 hour per week during November and December 1972 and January 1973; (2) Quashnick and Pheasant did not work for Scalera after the week ending December 2, 1972; (3) Guyette did not work for Scalera after the week ending January 13, 1973, and between he and I because perhaps he may not agree with what I am saying and he will say perhaps we ought to check this out further and he does so. S Kuchin testified that although he gave up the position of general manager his income from Suburban has not been reduced because he is perfornung more accounting functions for Suburban. 6 1 do not credit Kuchm's testimony that Ronald Kohn is in charge of the day-to-day operations of Suburban at the South Plainfield terminal. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior thereto worked about 1 day per week during the weeks that he drove for Scalera; (4) these four employees plus McCauley were employees of Suburban and were paid by Suburban (mostly at their regular Suburban rates) whenever they drove for Scalera which reflects a sufficient divergence in the conditions of their employment from those of the regular Scalera drivers as to separate their employment interests from those of the Scalera drivers; and (5) because Caswell is a social security annuitant he is restricted in his earnings and Scalera does not carry his name on the same payroll as the other Scalera employees. Upon the foregoing, I find that during the times relevant hereto the Association represented 15 employees in a unit of 20 and therefore was the majority representative of Scalera's drivers. III. THE UNFAIR LABOR PRACTICES Dating back at least as far as the fall of 1971 the Association has been attempting to negotiate a written collective-bargaining agreement with Scalera. Thus, a memorandum, dated November 22, 1971, was addressed to Sidney Kuchin from the Association7 stating that the employees "want a contract drawn up" between Scalera and the Association and setting forth various terms for inclusion in such agreement. There were subsequent discussions with Kuchin about the subject but at all times Kuchin adamantly refused to consider entering into any written contract with the Association. On March 21, 1972, the Association sent a written memorandum to Harry Place requesting certain improvements in the maintenance of the schoolbuses. On January 26, 1973, a letter with the typewritten signatures of John Watson, as president, and Barbara Pallister, as secretary, containing principally money demands was directed to Scalera. Finally, on January 31, 1973, a memorandum was delivered to Kuchin from the Association which, among other things, demand- ed "a written contract offering us job security" and the benefits described in the January 26 letter. In the morning of January 30, 1973, without prior appointment, a group of four employees, Barbara Pallister, Eileen Paulsen, Joan Morella, and Peggy Fitzgerald, constituting the Association's grievance committee, met with Sidney Kuchin. Present also was Harry Place. The purpose of the meeting from the employees' standpoint was to discuss the Association's demands set forth in its letter of January 26, 1973. Kuchin refused to consider entering into a written contract with the Association and informed the group that because Scalera's income for the then current school year was fixed by contracts with the various school boards he was unable to make any immediate improvements in the driver.' rates of pay. He suggested that they meet in April to discuss rates for the next school year. Also during the meeting, Kuchin mentioned that the Company would have to do something about a problem it was having with John Watson who I The memorandum was signed by Nick Morelia, as president; Barbara Pallister, as secretary; and Peggy Fitzgerald, Esther DIDarto, and Joan Morelia, as members of the grievance committee 8 Barbara Pallister and Eileen Paulsen, who testified that they overheard the conversation between Wosatka and Kuchin, gave versions which differed substantially from the testimony of both Wosatka and Kuchin. I do .efused to drive outside the limits of South Plainfield because of possible jeopardy to his full-time job. The next morning when Watson once again refused to drive outside South Plainfield he was discharged. About 9 a.m., after Kuchin arrived at the South Plainfield terminal, Scalera dispatcher, Ellen Wosatka, informed him that Watson's discharge had upset the drivers. According to Wosatka, Kuchin was very respectful and "let me rant and rave because I was mad." Wosatka further testified that during the discussion Kuchin said, "If the girls don't want to do what I want them to do, I will park the buses." Kuchin denied that he made such remark pointing out that he didn't know of any problem at that time.8 I credit Kuchin's denial. Incited by the discharge of Watson, about 10 o'clock that morning a group of about eight drivers met in Joan Morella's home which is adjacent to the South Plainfield terminal. Wosatka joined the meeting after concluding her discussion with Kuchin. The drivers decided that they would not return to work unless the Company negotiated a written agreement with them. Pallister typed their demands and the memorandum was given to Wosatka for delivery to Kuchin. The drivers also decided that Mrs. Morella should telephone the Company and report that the drivers were sick. Mrs. Wosatka returned to the terminal and delivered the drivers' memorandum to Kuchin. Harry Place was present. Wosatka informed them that the drivers were upset and she did not think they would return to work that day. Wosatka testified that after Kuchin read the memo- randum he said, "[H ]e didn't care if it cost him $500 a day, he was going to teach these girls a lesson, that they couldn't do that to him. That was the second time. He wasn't going to let them get away with it." Kuchin denied that he made this statement, although he testified, "I was quite dis- turbed. Five hundred dollars is quite a lot of money, I wouldn't go up that high. I might have been disturbed enough to say certain things." As both Place and Wosatka are supervisors9 whatever remark may have been made on that occasion cannot be deemed a violation of Section 8(a)(1) because it was not made in the presence of employees. About the same time Mrs. Morella telephoned to report the drivers sick, other drivers also called to make the same report. According to Wosatka, Kuchin informed both Place and herself, "If they are out sick, I want a doctor's certificate from everyone of them before they come back to work." 10 Place testified that Kuchin instructed him, "That any of the girls who call in, they were no longer employed by Scalera Bus until they went into his office and had spoken with him." The record is not clear as to the number of employees who failed to drive their scheduled runs in the afternoon of January 31. Mrs. Wosatka's testimony indicates that the number was between 8 and' 20, while Place testified that the number was between 5 and 10.11 The strike was short lived. The next morning, February not credit their testimony in respect to the conversation between Kuchin and Wosatka. 9 As dispatchers each has the power responsibly to assign and to direct the activities of drivers. IU This condition for reinstatement was never imposed. ' Pallister testified eight drivers participated in the strike. SCALERA BUS SERVICE, INC. 69 1, the striking employees reported for work. The complaint alleges that five of the striking employees (Morelia, Baldasarre, Paulsen, Pallister, and Vessels) were discrimi- natorily refused reinstatement to their jobs on February 1, 2, and 5 and that two of the five (Paulsen and Pallister) were unlawfully discharged on February 5.12 The five named drivers reported for work both in the morning and in the afternoon on February 1 and in the mornings on February 2 and 5. According to Wosatka, on February 1 and 2, Place informed them that there was no work for them because their runs were covered. Place testified that on the morning of February 1 he informed Pallister, Paulsen, Baldasarre, and Morelia when they reported for work that "[n]o one is going to work. It is Mr. Kuchin's orders that you must see him first. All of the runs are covered at the present time." 13 Similarly, Place testified that on February 2 he told the same four drivers, "You are no longer employed by Scalera Bus Company until you go to Mr. Kuchin and talk to him." I do not credit Place.14 When the Scalera employees called in sick in the late morning on January 31, Place and Kuchin had to make a hurried search for drivers to cover that afternoon's school runs. They were successful largely because they were able to arrange for Suburban drivers to substitute for most of the strikers. Then, according to Kuchin, on the evening of January 31, arrangements were made to cover the runs "for the next morning and afternoon for the full day." He further testified, "We covered [the February 2 schoolbus runs ] the night of February the 1st" and on Friday night, February 2, the arrangements were made to cover the runs for February 5. I find that when the five alleged discriminatees reported for work on February 1 arrangements had already been made for replacement drivers to substitute for them on that day. Accordingly, I further find that Respondent did not discriminate against the strikers by failing to reinstate them on February 1. However, when the five alleged discrimina- tees reported for work on February 1, no replacements had been obtained to substitute for them on February 2 and 5. Similarly, when they reported for work in the morning of February 2 their scheduled runs for February 5 had not been covered. Respondent's defense is that it unposed a reasonable requirement upon the striking employees that they apply in person to Kuchin for reinstatement; that Pallister and 12 According to Wosatka , Kathryn Soper, one of the striking employees, in the afternoon of February 2 begged Harry Place to permit her to return to work. Place said that he did not have the authority and suggested that she speak with Kuchin. Soper telephoned Kuchm and returned to work later the same day. 13 It is significant that Place did not testify that he told Vessels the same 14 1 find that both Place and Kuchin were unreliable witnesses. Each consciously sought to mold his testimony to the pattern of Respondent's defense. Thus, in their respective testimony, they made categorical assertions which developed to be inconsistent not only with the testimony of other witnesses but also with their own later testimony . Further, Kuchin in particular and Place to a lesser degress were evasive and argumentative during their cross-examination. The opinion I reach is that in giving their testimony they were dissembling and sought to confuse and obfuscate rather than to shed tight upon and explain the matters in issue 15 The five strikers involved here undertook to apply for reinstatement on February 1, 2,and 5. On each occasion when they were denied employment they were informed that there was no work available for them Paulsen never made such application ; that Morelia and Baldasarre were reinstated after they applied to Kuchin and that Vessels was reinstated after Kuchin learned that she wished to return to work. For the purposes of this case I will accept the proposition that the Company had the lawful right to insist that each striking employee make a personal application for reinstatement to Kuchin . Howev- er, as a condition to the exercise of such right the Respondent was under a duty to inform each striker who asked for reinstatement of the need to speak to Kuchin.- Thus, the issues regarding the alleged discriminations turn upon whether and when the five alleged discriminatees were notified of such requirement.I5 A. Eleanor Vessels Eleanor Vessels was first hired to drive for Scalera on December 4, 1972. Thereafter she joined the Association. Although she missed the Association's January 31 meeting because she arrived late at Mrs. Morella's home, she supported the strike and remained away from work in the afternoon of January 31. Vessels testified that she reported for work in the morning of February 1 and was informed by Harry Place that there was no work for her. She reported again in the afternoon of February 1 and in the morning of February 2 and each time Place repeated that there was no work for her. Vessels further testified that about noon on February 5 Place telephoned her at home and asked her to return to work that afternoon which she did. According to Vessels, dunng their telephone conversa- tion, "Harry (Place) said he had talked to Sid Kuchin, and he told him to call me to find out whether I would want to work or not. He said that being I was a new driver they felt like I haven't been too much involved in the strike." Place denied that he made the latter remark and Kuchin denied that he mstructed Place to make such comment to Vessels. Kuchin further testified that because a few drivers had informed him that Vessels wished to return to work he had instructed Place to call Vessels . Place testified that Vessels was the only driver whom he asked to return to work and he did this upon the instructions of Kuchin.16 I credit Vessels whom I find was a reliable witness. I also find that Place's statement to Vessels on February 5 that she would be permitted to return to work because the Company felt that as a new driver she had not been "too much involved in the strike" clearly implies a threat of on that day or that their runs were covered for the day. Based on the fact that they reapplied on successive workdays and that the Company did not discourage them from doing so, the striking employees and the Company treated each application for work and each denial as operative only for the day in question and not as a determination of their future status. It is unnecessary, therefore, to decide what the situation would be had any of the alleged discriminatees, without being told that they were required to speak directly to Kuchin, not applied for reinstatement a second time after once being denied reinstatement. 16 The testimony of Kuchin and Place that Vessels was invited to return to work on February 5 tends to support the testimony of the five alleged discnminatees that they were not informed on February I and 2 that if they wished reinstatement they had to apply directly to Kuchin. If such advice had been given to the alleged discriminatees there would have been no reason for Place to telephone Vessels and specifically ask her to return to work Also, no reason appears why Place on February 1 and 2 would tell four of the alleged discnnunatees that they had to apply in person to Kuchin for reinstatement and would not similarly advise Vessels. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprisals against those of its employees who actively supported the strike .17 Such threat against employees engaged in a lawful strike is a restraint upon and interference with their right to engage in an activity protected by Section 7 and therefore violates Section 8(axl) of the Act. As Vessels made unconditional applications for reinstatement on February 1 and 2 and the only reason given to her by the Company for not permitting her to return to work on February 2 and 5 was the untruthful assertion by Place that her runs were covered for those days, I find further that Vessels was discriminatorily denied reinstatement on February 2 and 5 because of her support of the Association and her participation in the January 31 strike. Such discrimination tends to discourage membership in the Association and restrains, coerces, and interferes with employees in the exercise of the rights guaranteed in Section 7 and therefore violates Section 8(a)(l) and (3) of the Act. B. Joan Morelia Joan Morena has been employed by Scalera for about' 94/2 years. She hasbeen treasurer of the Association since it was organized about 2 years ago. Also, the meetings of the Association are usually held in her home which is located near the South Plainfield terminal. She participated in the January 31 strike and, in accordance with the strike plan, when she telephoned to report herself sick she also reported the other drivers sick. Morelia appeared for work in the morning of February 1. Harry Place informed her that she must have a doctor's certificate. When Morella protested that she didn't need a doctor's certificate for I day's absence, Place told her, "That is Mr. Kuchin's order." 18 Morelia later reported to the terminal for her afternoon runs on February 1 and also for her morning run on February 2 and each time Harry Place informed her that her runs were covered. Morella again reported for work in the morning of February 5. This time Place told her that she should see Mr. Kuchin. She waited for Kuchin and spoke with him when he arrived at the terminal a few minutes after 9 o'clock. According to Morella, Kuchin told her that her job was terminated. She protested that other drivers were permitted to return to work and the Company was discriminating against her. Kuchin replied, "[Y]ou had the meetings at your house." Morelia argued, "Just about everyone that was working now also was at my house." Kuchin responded that her runs are covered. Morella then told Kuchin that she had injured her arm on February 2. There was some discussion about the subject. The meeting concluded with Kuchin informing Morelia to call Harry Place when her arm was better. The next day, February 6, Morella telephoned Place and the latter informed her, "You have your job back with all your runs." She returned to work the following Monday after she recovered from her injury. Kuchm disputed Morella's version of their meeting. According to Kuchin, Morella spoke with him on Satur- day, February 3, not on the next Monday. Morella said she would like her job back. He inquired, "Are you feeling okay to go back to work?" She replied that she had injured herself and was unable to return to work immediately but wished to know whether she still had a job. He informed her that she could return to work whenever she was able to do so. I do not credit Morella's testimony that during her conversation with Kuchin the latter advised her that she was terminated because the Association's meetings were held at her house. First, even Morella acknowledges that before the discussion concluded Kuchin informed her in effect that she could return to work when she recovered from her injury. It is illogical that in a relatively brief conversation Kuchin would first inform Morella that she was terminated and then with nothing of consequence intervening would tell her that she could return to work. Second, in her pretrial affidavit, executed on February 13, 1973, Morella did not mention that Kuchin had informed her that she was terminated. However, for the reasons set forth above in the discussion relating to Eleanor Vessels, I find that Scalera has violated Section 8(a)(1) and (3) of the Act by failing and refusing to reinstate Morella on February 2.111 C. Angelina Baldasarre Angelina Baldasarre has been working for Scalera since 1965. She has been a member of the Association since its organization. She also participated in the January 31 strike. She reported for work in the morning and in the afternoon on February 1 and in the morning on February 2. On each occasion Harry Place informed Baldasarre that there was no work for her. On the morning of February 5 Baldasarre was accompa- nied by Barbara Pallister when she went to the South Plainfield terminal to report for work . According to Baldasarre, Pallister first asked if there was any work for her. Place said there was none . Pallister asked why and Place responded, "[I ]f you want to know you will have to see Sid (Kuchin)." Then Baldasarre asked if there was work for her. Place nodded indicating, "Yes," and motioned with his hand for her to remain. Pallister left. Place told Baldasarre that she first must talk with Kuchin. Later that morning Baldasarre spoke with Kuchin who informed her that she could return to work with her same runs and with her same seniority. According to Kuchin, when Baldasarre on February 5 asked to be reinstated he asked her how she felt. When Baldasarre replied that she was feeling well he informed her that she could return to work. 17 As Place telephoned Vessels upon the specific instructions of Kuchin, he was acting as an agent of the Company and Scalera therefore is charged with the conduct of Place in his discharge of such agency. 18 Place testified that he told Morelia that Kuchm had left instructions that a doctor's certificate was required . When Morella protested that such requirement was unusual he responded "that it was unusual for all the girls [to book ] off sick within an hour." Morelia ultimately was reinstated without providing a doctor's certification that she was ill on January 31. There is no evidence that any other sinking employee was told that she had to furnish a doctor's certificate before she would be reinstated. 19 As Morelia was unable to work on February 5 and 6 because of her injury it is unmatenal whether she was offered reinstatement on February 3, 5, or 6. SCALERA BUS SERVICE, INC. For the reasons stated above in the discussion relating to Eleanor Vessels, I find that Scalera has violated Section 8(a)(1) and (3) of the Act by its failure and refusal to reinstate Baldasarre on February 2 and 5, 1973. D. Barbara Pallister Barbara Pallister was hired in November 1970. She was secretary of the Association. She also joined the strike and remained away from work in the afternoon of January 31. The next day, February 1, both in the morning and in the afternoon, and also in the morning on February 2, she reported to the South Plainfield terminal for work. In each instance she was informed by Harry Place that her runs were covered. On the morning on Monday, February 5, Pallister was in the company of Angelina Baldasarre when she reported for work. According to Pallister, this time when she asked Harry Place whether there was work for her, he replied, "You are no longer working for Scalera." She asked, "Why?" He answered, "You are terminated here." When she insisted that Place give her a reason for her termination Place answered that he did not know the reason but if she wants to learn the reason she should see Kuchin. Kuchin was not then in the terminal. Pallister did not wait for him and never has spoken with him about the subject. Place, contradicting Pallister, testified that all he told her on February 5 was that she must see Mr. Kuchin. Baldasarre who was present during the conversation testified that Pallister asked Place whether there was any work for her and he replied that there was none. Pallister then asked to know why and Place said, "If you want to know you will have to see Sid (Kuchin)." The record shows a pattern with respect to the reinstate- ment of the striking employees. Except for Kathryn Soper, none of the strikers was permitted to return to work on February 1 or 2. However, on February 5 Place informed them that they would have to speak with Mr. Kuchin before they could return to work.20 It appears that all the strikers who spoke with Kuchin were reinstated. Balda- sarre's testimony tends to corroborate Place that he told Pallister that she should speak with Kuchin. Also, no reason appears why Respondent wished to punish Pallister more than any other striker. Pallister was no more aggressive in the promotion of the Association's demands than other members of the Association's grievance com- mittee such as Morella and Peggy Fitzgerald. I find, contrary to the testimony of Pallister, that she was not terminated on February 5 but rather that she was told as were the other strikers that she had to apply to Kuchm for reinstatement. As Pallister has never applied to Kuchin for reinstatement and as I find that such requirement was not unlawful, I further find that Respondent's refusal to reinstate Pallister after February 5, 1973, was not unlawful. However, for the reasons given above in connection with the discussion of Eleanor Vessels, I find that Pallister was unlawfully refused reinstatement on February 2 and 5 and Respondent thereby violated Section 8(a)(1) and (3) of the Act. 20 In his brief, General Counsel points out that "[0 ]n cross-examination, Place admitted that in an affidavit given to the Board during the investigation of the instant case he stated 'On Monday, February 5, 1973, 1 E. Eileen Paulsen 71 Eileen Paulsen was hired by the Company in September 1971. She was a member of the Association's grievance committee. She also joined the January 31 strike and remained away from work in the afternoon of that day. As in the case of the other strikers she reported for work in the morning and afternoon of February 1 and also in the morning of February 2. On each occasion she was told by Harry Place that there was no work for her. Then, according to Paulsen, when she reported for work on February 5, Place informed her, "You are officially unemployed at Scalera." Respondent's position with regard to Paulsen is the same as with the other strikers; namely, that they were informed that they had to apply directly to Kuchin for reinstatement. The evidence, as I find it, shows that prior to February 5 the strikers were not told that they were required to speak with Kuchin but merely were told that their runs were covered. On February 5 Harry Place informed the strikers that they should speak to Kuchin if they wished to return to work and all the strikers who spoke to Kuchin were reinstated. No reason appears why the Company would wish to punish Paulsen more severely for her participation in the strike than any of the other strikers. Accordingly, I find, contrary to Paulsen, that she was not terminated on February 5 but she also was informed that she had to apply for reinstatement directly to Kuchin, which she did not do. However, for the same reasons set forth above in the discussion of Eleanor Vessels, I find that the Company has violated Section 8(a)(1) and (3) of the Act by its failure to reinstate Paulsen on February 2 and 5. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that Scalera unlawfully failed and refused to reinstate Angelina Baldasarre, Eleanor Vessels, Eileen Paulsen, and Barbara Pallister on February 2 and 5, 1973, and unlawfully failed and refused to reinstate Joan Morella on February 2, 1973. Accordingly, I shall recommend that Respondent make said employees whole for the loss of earnings they suffered by reason of Respondent's failure and refusal to reinstate them on the stated dates. Interest at the rate of 6 percent per annum shall be added to such did tell all the drivers who called in sick that they wee no longer employed by Scalers Bus Company. I was told to do this by Mr. Kuchin and further instructed to have each girl see him.' " 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay and shall be computed in the manner set forth in his Plumbing & Heating Co., 138 NLRB 716. Respondent's unlawful activities described above, partic- ularly its reprisals against the drivers who participated in the January 31 strike, infringed upon employees' right to engage in a concerted activity which is subject to the protective guarantees of Section 7 and also is specifically sanctioned by Section 13 of the Act. Respondent's conduct indicates a purpose to defeat the right of its employees to organize and a refusal to accept the procedure of collective bargaining and therefore contravenes the basic policies of the Act. Its unfair labor practices found herein are potentially related to other unfair labor practices pro- scribed by the Act, and the danger of their commission in the future may be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommended Order herein is coexten- sive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By discriminatorily failing and refusing to reinstate Joan Morella, Angelina Baldasarre, Eleanor Vessels, Eileen Paulsen, and Barbara Pallister for I or 2 days in February 1973 because of their participation in a strike on January 31, 1973, thereby discouraging membership in the Associa- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing conduct and by reason of Respondent's threat to engage in reprisals against employ- ees who actively supported a strike, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in any violations of Section 8(a)(1) and (3) of the Act alleged in the complaint except insofar as such violations were specifically found above to have taken place. [Recommended Order omitted from publication.]