Waukegan-North Chicago Transit Co.

WAUKEGAN-NORTH CHICAGO TRANSIT CO. 833 Waukegan-North Chicago Transit Company and War- ren B. Hook and Division 900, Amalgamated Trans- it Union of America and Keith J. Cowen and Harley Brown and Joyce Walt. Cases 13-CA-13135, 13- CA-13552, 13-CA-13814, 13-CA-14041, and 13- CA-14096 August 5, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On December 30, 1975, Administrative Law Judge Abraham H. Mailer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent operates a local passenger transit and school bus system in Waukegan, Illinois. Respon- dent's transit operations are supported by passenger fare receipts and by partial subsidies paid by local government agencies. Respondent's school bus ser- vice is provided under a written contract with Wauk- egan Unit School District 60. Respondent also en- gaged in charter service in which it used both transit and school buses. In the fiscal year prior to the hearing, a representa- tive period, Respondent realized gross income from all operations in excess of $600,000. Of this amount more than $250,000 was derived from the transit op- eration. During the same period, Respondent pur- chased and received goods and materials from Illi- nois suppliers valued in excess of $50,000 which were shipped to those suppliers directly from points out- side the State of Illinois. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA. 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings We also shall deny Respondent's request for oral argument In our view the record, the exceptions, and the briefs adequately present the issues Respondent employs separate supervisors for its transit and school bus operations. Respondent's transit drivers and its maintenance employees have long been represented by the Union. The school bus drivers, however, have never been represented. Re- spondent generally restricts its transit drivers to driv- ing transit buses and to charter work with transit buses. On one run, however, regular transit buses pick up students and transport them to and from a local high school. The students pay a reduced rate transit fare. The complaint in Case 13-CA-13814 alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging school bus drivers Cowen and Wigginton and Section 8(a)(1) of the Act by interro- gating Cowen about his union activity, by posting a notice informing school bus drivers that they had no right to organize, by removing and destroying notices of a school bus driver organizing meeting, and by promulgating and enforcing an unlawful no-solicita- tion rule. In its answer to the complaint in Case 13-CA- 13814 and thereafter at the hearing, Respondent ar- gued that the Board should not assert jurisdiction over the school bus operation. In rejecting this con- tention, the Administrative Law Judge conceded that the Board traditionally has refused to assert jurisdic- tion over employers engaged primarily in providing local school bus service. However, after reviewing the Respondent's annual revenue figures and noting that the more than $250,000 realized from the transit op- eration was sufficient to satisfy the Board's jurisdic- tional standard for transit bus operations,' the Ad- ministrative Law Judge concluded that the Board would assert jurisdiction over Respondent's school bus operation. After carefully reviewing the record here, particu- larly the written contract between Respondent and School District 60, we conclude that the Re- spondent's school bus operation operates primarily in aid of local communities and of the State in the field of education and is so intimately related to the School District's function as to warrant finding that its operation is, in effect, a municipal function.3 Hence, contrary to the Administrative Law Judge, 2 See Charleston Transit Company, 123 NLRB 1296 (1959) 7 Under its contract with School District 60, Respondent is required to maintain its equipment in accordance with both the rules and regulations of the State of Illinois and with rules , regulations , and specifications estab- lished by the Illinois State Superintendent of Public Instruction In addition, the School District has the right to establish and approve schedules, to revise and change any and all routes at any time , and to change the number of school buses required to best suit its needs The School District and the Board of Education retain the right to inspect Respondent's school buses at any time and Respondent is required to administer a safety program that is satisfactory to the School District Respondent must present the School Continued 225 NLRB No. 115 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find that insofar as its school bus operation is concerned Respondent shares the School District's exemption from the Board's jurisdiction. See Roesch Lines, Inc., 224 NLRB No. 16 (1976). Accordingly, we are constrained to dismiss the complaint in Case 13-CA-13814 insofar as it alleges unlawful conduct directed against employees of Respondent's school bus operation.4 We shall modify the Administrative Law Judge's recommended Order in conformity with our decision herein. ORDER activities or union business on company property during nonwork time. (d) Refusing to bargain collectively with Division 900, Amalgamated Transit Union of America, as the exclusive representative of its employees in the fol- lowing appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All transit drivers and maintenance employees employed by the Respondent at its Waukegan, Illinois, location, excluding clerical employees, guards, professional employees and supervisors as defined in the Act, and all other employees. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Waukegan-North Chicago Transit Company, Wauk- egan, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging, laying off, refusing to recall, or in any other manner discriminating against any em- ployee with respect to his hire or tenure of employ- ment, or any term or condition of employment, be- cause he has filed charges under the Act. (b) Discouraging membership in Division 900, Amalgamated Transit Union of America, or in any other labor organization of its employees, by dis- charging, laying off, refusing to recall, or in any other manner discriminating against employees with re- gard to hire and tenure of employment or any term or condition of employment. (c) Prohibiting employees from discussing union District with a monthly statement detailing the number of students trans- ported and Respondent 's costs Finally , the Respondent undertakes not to enter into any agreement with any individual or group that would interfere with its obligation to provide continuous and reliable service and the School District retains the right to request the discharge of any school bus driver who, in the opinion of the District, is not qualified to operate a school bus under the agreement The contract may be terminated by 6 months' written notice or, for certain stated breaches of the agreement , it may be terminated at any time without notice In the event the contract is terminated during the school year, Respondent is required to sell to the District all school buses manufactured in 1967 or later years and the District is entitled to immediate possession of the buses pending the determination of their fair market value. ° The complaint in Case 13-CA-13814 alleges, in part, and the Adminis- trative Law Judge found and remedied a violation of Sec 8(a)(1) of the Act predicated on Respondent's promulgation of an overbroad no-solicitation rule The record reveals that Respondent's general manager conceded that Respondent's superintendent of transportation told drivers that they could not discuss the Union on company time or company property Respondent also informed a transit driver, Union Vice President Larry Gdlison, of such a rule Because it appears from the record that Respondent's promulgation of the rule was not confined to its school bus drivers but encompassed all drivers, we shall affirm the Administrative Law Judge's findings of the vio- lation (e) Making changes in the terms and conditions of employment of its employees in the above-described appropriate unit without first consulting and bar- gaining with the Union. (f) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Warren B. Hook, Harley Brown, Dan- iel Campion, Joyce Walt, and James Myrick immedi- ate and full reinstatement to their former jobs, dis- charging, if necessary, any employee hired to fill such jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and make 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 Administrative Law Judge's Decision entitled "The Remedy." (b) Make whole Larry Gillison, Verdo Hall, and Francisco Rodriguez for any loss of earnings each may have suffered by reason of the Respondent's un- ilateral change of working conditions relating to the driving of buses servicing students of the North Chi- cago High School on May 27, 1974. (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 amount of backpay due under the terms of this Order. WAUKEGAN-NORTH CHICAGO TRANSIT CO. 835 (d) Post at its terminal in Waukegan, Illinois, cop- ies of the attached notice marked "Appendix." 5 Cop- ies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative, shall be posted by the Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER JENKINS, concurring in part and dissenting in part: Contrary to my colleagues and for the reasons ex- pressed in We Transport, Inc. and Town Bus Corp., 215 NLRB 497 (1974), I would assert jurisdiction over Respondent's entire operation, including its school bus operation, and adopt the Administrative Law Judge's Decision in its entirety. 5In 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, lay off, refuse to re- call, or in any any other manner discriminate against any employee with respect to his hire or tenure of employment, or any term or condition of employment, because he has filed charges un- der the Act. WE WILL NOT discourage membership in Divi- sion 900, Amalgamated Transit Union of Amer- ica, or in any other labor organization of our employees, by discharging, laying off, or refus- ing to recall, or in any other manner discrimi- nating against employees with regard to hire and tenure of employment or any term or condition of employment. WE WILL NOT prohibit employees from discuss- ing union activities or union business on compa- ny property during nonwork time. WE WILL NOT refuse to bargain collectively with Division 900, Amalgamated Transit Union of America, as the exclusive representative of our employees in the following appropriate unit with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment: All transit drivers and maintenance em- ployees employed by us at our Waukegan, Il- linois, location, excluding clerical employees, guards, professional employees, and supervi- sors as defined in the Act, and all other em- ployees. WE WILL NOT make changes in the terms and conditions of employment of our employees in the above-described appropriate unit without first consulting and bargaining with the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, ex- cept to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. WE WILL offer to Warren B. Hook, Harley Brown, Daniel Campion, Joyce Walt, and James Myrick immediate and full reinstatement to their former jobs, discharging, if necessary, any employees hired to fill such jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and WE WILL make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. WE WILL make whole Larry Gillison, Verdo Hall, and Francisco Rodriguez for any loss of earnings each may have suffered by reason of our unilateral change of working conditions re- lating to the driving of buses servicing students of the North Chicago High School on May 27, 1974. All of our employees are free to become and re- main members of the above-named Union, or any other labor organization, or to refrain from doing so. WAUKEGAN-NORTH CHICAGO TRANSIT COM- PANY 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ABRAHAM H. MALLER, Administrative Law Judge: On May 7, 1975, the Regional Director for Region 13 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel a consolidated complaint against Waukegan-North Chicago Transit Com- pany, herein called the Respondent. By order issued with the consolidated complaint, the Regional Director consoli- dated Cases 13-CA-14041 and 13-CA-14096. On the same day the Regional Director issued an order further consoli- dating Cases 13-CA-13135, 13-CA-13552, 13-CA-13814, 13-CA-14041, and 13-CA-14096.' The various complaints alleged violations of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.), herein called the Act. Respondent's answers to the various complaints denied any violations of the Act. Pursuant to notice, a hearing was held before me at Chi- cago, Illinois, on May 27, 28, 29, 30, June 2, 3, 4, Septem- ber 30, and October 1, 1975. All parties were present at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, and to file briefs with me. Briefs were filed by both parties. Upon consideration of the entire record and the briefs, and upon observation of each of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois. At all times material herein, Respondent has maintained a terminal and princi- pal office at 1400 Tenth Street, Waukegan, Illinois, where it is engaged in the operation of local passenger transit buses and school buses. During the calendar or fiscal year preceding the filing of the original complaint herein, a rep- resentative period, Respondent has had, in the course and conduct of its business operations, a gross volume of busi- ness in excess of $600,000, of which more than $250,000 was derived from the operation of local passenger transit buses. During said period, Respondent purchased and re- ceived goods and materials from Illinois suppliers, valued in excess of $50,000, which were shipped to those suppliers directly from points outside the State of Illinois. The foregoing findings are based on the allegations set forth in each of the complaints involved herein, and admit- ted by the Respondent in its answer to the consolidated i Case 13-CA-13135 was initiated by the filing of a charge by Warren B Hook, an individual, on March 29, 1974 Case 13-CA-13552 was initiated on September 4, 1974, by the filing of a charge by Division 900, Amalga- mated Transit Union of America Case 13-CA-13814 was initiated on De- cember 5, 1974, by the filing of a charge by Keith J Cowen, an individual Case 13-CA-14041 was initiated on February 25, 1975, by the filing of a charge by Harley Brown, an individual Case 13-CA-14096 was initiated on March 13, 1975, by the filing of an original charge by Joyce Wait, an indi- vidual On March 26, 1975, said Joyce Walt filed a first amended charge in that case Various complaints and orders consolidating cases were issued by the Regional Director in said cases , culminating in the issuance of the or- ders of May 7, 1975. complaint in Cases 13-CA-14041 and 13-CA-14096. However, it is noted that in Respondent's answer to the complaint in Case 13-CA-13814, involving the alleged dis- criminatory discharges of school bus drivers Keith Cowen and Jane Wigginton, the Respondent stated that it: Denies the allegations in paragraph III that for the purposes of this complaint, Respondent is an employ- er. As the school bus operation is separate from the transit operation and employees different persons, and the two operations are not intermingled, Petitioner was employed only in the school bus operation. At the close of the General Counsel's case, the Respon- dent made several motions to dismiss. One of them is as follows: Third one relates to the two school bus drivers. I be- lieve, No. 1, if you look at the pleadings in here, you will find we denied that there was any jurisdiction of the National Labor Relations Board covering these people. The Government has presented absolutely nothing to state that there was anything covering these two. They were not members of the Local 900. Respondent, however, did not argue or pursue the matter further in its brief. To the extent that the Respondent has challenged the Board's jurisdiction in Case 13-CA-13814, the challenge is without merit and must be overruled. It is admitted that the Respondent has enjoyed gross revenue in excess of $600,000 per year, more than $250,000 of which was de- rived from passenger transit bus operations. The $250,000 figure is sufficient to satisfy the Board's longstanding stan- dard for transit bus operations. Charleston Transit Compa- ny, 123 NLRB 1296, 1297 (1959). While the Board has held that it would not effectuate the purposes of the Act to assert jurisdiction over bus operators whose operations were primarily in aid of local educational systems,' the Board has taken jurisdiction over an employer who derived approximately $2 million from total transit and school bus operations, of which $250,000 was derived from sources other than the school bus operation. We Transport, Inc. and Town Bus Corp., 215 NLRB 497 (1974). In that case, the Board asserted jurisdiction and directed an election among all the employer's bus drivers and mechanics, concluding that once the employer was found to satisfy the Charleston jurisdictional standard, the ratio of school-to-transit reve- nues was immaterial. The Board has in other cases also asserted jurisdiction over the school bus operations of transit-and-school bus operators meeting the Board's juris- dictional standards. Scalera Bus Services, Inc., 210 NLRB 63, 66-67 (1974); Suburban Transit Corp., 203 NLRB 465, In. 2 (1973), enfd. in relevant part 499 F.2d 78 (C.A. 3, 1974). Accordingly, I find and conclude that the Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and 2 E g, S L Lines, Inc, d/b/a Pacific-Scenic-Lines, 164 NLRB 1179 (1967) WAUKEGAN-NORTH CHICAGO TRANSIT CO. 837 (7) of the Act and that it will effectuate the policies of the Board to assert jurisdiction here.3 II. THE LABOR ORGANIZATION INVOLVED Division 900, Amalgamated Transit Union of America, herein called the Union, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 111. THE ISSUES 1. Whether the Respondent discharged Warren B. Hook because he had filed charges against the Respondent, in violation of Section 8(a)(4) of the Act. 2. Whether the Respondent unilaterally changed the working conditions and thereby engaged in a refusal to bargain, in violation of Section 8(a)(5) of the Act. 3. Whether the Respondent discharged Keith J. Cowen and Jane Wigginton because they engaged in union activi- ties, in violation of Section 8(a)(3) and (1) of the Act. 4. Whether the Respondent laid off Harley Brown and Daniel Campion because they had engaged in concerted union activities, in violation of Section 8(a)(3) and (1) of the Act. 5. Whether the Respondent laid off Joyce Walt and James Myrick because they engaged in union activities, in violation of Section 8(a)(3) and (1) of the Act. 6. Whether the Respondent discharged Joyce Walt and James Myrick because they had filed a charge under the Act, in violation of Section 8(a)(4) of the Act. 7. Whether the Respondent coercively interrogated Keith J. Cowen concerning his sympathy for the Union, in violation of Section 8(a)(1) of the Act. 8. Whether by removing notices posted by Keith J. Cowen for an organizational meeting, the Respondent en- gaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 9. Whether by posting a notice informing the school bus drivers that they may not organize, the Respondent en- gaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 10. Whether by informing Larry Gillison that the em- ployees may not engage in union discussions on company property during nonwork time, the Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's transit operations are supported by pas- senger fare receipts supplemented at times by aid from var- ious local and regional government agencies and private organizations operating shopping centers served by the Re- spondent. Respondent's school bus operations are provid- ed pursuant to a written agreement with Community Unit School District 60. Respondent also provides charter serv- J The Board has previously asserted jurisdiction over the Respondent in Waukegan North Chicago Transit, 182 NLRB 708 (1970) ices in which it utilizes both transit buses and school buses. While Respondent employs various supervisors separately engaged in transit and school bus operations, all operations are controlled by a single board of directors and by Presi- dent and Owner William J. O'Brien and by General Man- ager Marjorie E Woodard. Respondent has had a bargaining relationship with the Union for more that 25 years, during which the Union has represented a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act, consisting of: All transit drivers and maintenance employees em- ployed by the Respondent at its Waukegan, Illinois, location, excluding clerical employees, guards, profes- sional employees and supervisors as defined in the Act, and all other employees. The current agreement was signed in April 1975, and is an abbreviated extension of a 1972-75 contract. The agree- ment contains a 45-day union-security clause. The Respondent commenced school bus operations in 1970. School bus drivers have never been represented by the Union or by any other labor organization. School bus drivers did engage in a strike in May 1974, and threatened a strike in November 1974. The Union attempted to orga- nize the school bus drivers during November and Decem- ber 1974, but did not obtain representative status. B. The Discharge of Warren B. Hook Warren B. Hook began working for Respondent in 1943 on the Respondent's street car operation and joined the Union in that same year. He later became a bus driver. Hook was discharged on January 22, 1974. The Respon- dent contends that he was discharged because of a rear-end accident occurring on January 1. The General Counsel contends that Hook's discharge was motivated by Hook's filing charges and giving testimony under the Act and/or because of his activities in and on behalf of the Union. There is no dispute that Hook had been extensively and repeatedly involved in Labor Board proceeding against the Respondent. The record shows that Hook had filed four charges prior to the charge filed in Case 13-CA-13135. In Case 13-CA-8745, Hook filed a charge alleging that he had been discharged on October 31, 1968, in violation of Section 8(a)(3) of the Act. In settlement of that charge, Respondent paid Hook $630.89 in backpay. In Case 13- CA-9338, Hook filed a charge alleging that he was dis- charged on August 3, 1969, in violation of Section 8(a)(3) of the Act. That case proceeded through a complaint, hear- ing, Trial Examiner's Decision, Board order,4 and backpay specification. It was finally resolved in November 1970 by a backpay settlement of $3,500. On May 3, 1971, Hook filed a third charge in Case 13-CA-10586, alleging that he had been discriminatorily denied pay benefits in violation of Section 8(a)(3) of the Act. That charge was settled with a backpay settlement of $462. On May 28, 1971, Hook filed a charge in Case 13-CA-10654, alleging that he had been discharged shortly after the settlement in Case 13-CA- Waukegan North Chicago Transit, 182 NLRB 708 (1970) 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9338, in violation of Section 8(a)(3) and (4) of the Act. The complaint issued upon said charge resulted in the entry of settlement stipulation, a Board order, and a consent decree entered by the Court of Appeals for the Seventh Circuit on April 6, 1972. Under that settlement, Respondent paid Hook $7,614.32 in backpay. Hook's filing of the foregoing charges did not endear him to the Respondent. In Febru- ary 1972, when Hook encountered President O'Brien at the terminal and wished him a good morning, President O'Brien replied: "Don't `good morning' me God damn you. I will get you yet." Between the foregoing incident and Hook's discharge, he had no significant problems with the Respondent, except that he was suspended for I day in 1973 for not wearing a uniform jacket. On January 21, 1974, Hook was driving a transit bus westbound on Washington Street in Waukegan, when a woman driving an automobile in the inside passing lane turned in front of the bus in order to enter the driveway of a restaurant. Hook, driving on wet pavement, was unable to brake quickly enough, and his bus hit the rear of the car, damaging the bumper, tail light, and trunk door of the car. Hook's bus sustained damage to his front bumper, tinwork, and passenger door step. A local police officer named Heinz arrived at the scene, checked for injuries, found none, and told Hook to finish his run and to come to the police station later. Hook immediately informed Superintendent of Trans- portation Earl Woodard, husband of General Manager Marjorie Woodard, and proceeded on his scheduled run. However, he was overtaken by an employee in a company car, who took over the run and directed Hook to return to the terminal and see President O'Brien and Patrolman Heinz. There, he found President O'Brien, Patrolman Heinz, and Superintendent Woodard in O'Brien's office. At the policeman's request, Hook repeated his account of the accident, whereupon Heinz said, "I guess I have to charge you with negligent driving." Patrolman Heinz and Superintendent Woodard then left the office President O'Brien then told Hook, "You might as well go down to the goddamn Labor Board again and cause some more trouble." Hook replied, "If I have to go I will have to go " When Hook left President O'Brien's office, he stopped and talked to General Manager Woodard about what was going to happen. General Manager Woodard suggested, "It sounds like it is a good time to take a vacation " The following day, Superintendent Earl Woodard telephoned Hook and, quoting President O'Brien, told Hook that he was through. The ticket issued to Hook on January 21 was subse- quently dismissed for insufficient evidence. General Man- ager Marjorie Woodard testified that sometime after June 30, 1974, the Respondent received notification from its in- surer that the damages resulting from the accident amount- ed to $3,181.81, a circumstance which increased the Respondent's insurance premium. Superintendent Earl Woodard and General Manager Marjorie Woodard both testified that Hook was dis- charged in conformity with a longstanding rule of the Re- spondent, calling for the automatic discharge of a driver involved in a rear-end accident and described in the dis- charge letter sent Hook: Your record would show that you were dismissed on Monday, January 21, 1974. The reason for the dismissal is due to an accident you had on Washington Street west of McAree in front of the Dog House Restaurant. The automobile was hit in the rear end, this is an automatic dismissal as you did not have your vehicle under control.5 The General Counsel contends that the Respondent's policy of firing a man automatically when he was involved in a rear-end accident, was not universally applied. Former employee Offie Barnes testified that, in June 1973, he was transferred from driving school buses to driving transit buses. On November 15, 1973, Barnes had a rear-end acci- dent. While driving a bus containing Marine prisoners, he ran into the rear-end of a truck at a highway toll plaza. Barnes admitted that the accident was caused by his failure to use his vacuum breaks properly. He was issued a traffic ticket and later paid a fine. When Barnes returned to the terminal after the accident, President O'Brien promptly fired him because of the acci- dent. Barnes then pointed out to President O'Brien that he was buying a home and had children and that he needed a job. O'Brien told Barnes that "if I wanted my job back I had to pay for the repair of that job." Barnes agreed, and O'Brien said he would make deductions from his pay every 2 weeks Barnes was retained as a full-time transit driver, without discipline or demotion, until February 1974. On February 11, 1974, Barnes had a second driving mishap. He was driving his bus with passengers aboard and crossed railroad tracks in front of a train at a time when the lights were flashing and the bells were ringing. The arm of the gate hit the back of the bus. Superintendent Earl Woodard fired Barnes because of that incident. However, Barnes did not leave the Respondent's employ It is undis- puted that Barnes was promptly installed as a school bus driver and served in that capacity until June 1974, the end of the school year. Superintendent Earl Woodard testified that he was un- aware until the hearing herein that Barnes had been re- tained. However, Barnes testified without contradiction that President O'Brien was aware of his continued presence on the payroll, as Barnes unsuccessfully approached Presi- dent O'Brien several times about being reinstated to transit driving. President O'Brien's response was that he did not personally object to reinstating Barnes, but "didn't want to go over the supervisor's head " General Manager Marjorie Woodard admittedly learned of the fact that Barnes was driving school buses after having been fired, but took no action, other than to discuss the matter with School Bus Superintendent Hartman who justified Barnes' rehiring on the ground that the Respondent needed drivers. When General Manager Woodard asked Superintendent Hart- man, "You know why he was fired?" Superintendent Hart- man replied, "Yes, but I told him that if he is careful he may have a better chance to get back on to the transit end." 5In its brief, Respondent contends that the existence of the automatic discharge rule was confirmed by Union Vice President Gillison The record does not support the contention To the contrary, Gillison testified "There are different rules for different people " WAUKEGAN-NORTH CHICAGO TRANSIT CO 839 The record also shows that transit driver George Rettig drove a bus into the rear of an automobile on September 11, 1975, during the pendency of the instant hearing. Acci- dent reports in the possession of the Respondent indicated that the accident was clearly a rear-end collision, that the automobile involved sustained damage to the rear bumper, trunk door, and tail light, that the motorist complained of physical injuries, and that Rettig was issued a ticket by a Waukegan police officer. At the October 1 session of the hearing herein, General Manager Woodard admitted that the Respondent had taken no action to discipline or dis- charge Rettig, although both she and Superintendent Earl Woodard had been aware of the accident at or about the time it occurred Rettig continued to drive transit buses after the accident and was still so driving at the time of the close of the hearing herein. General Manager Marjorie Woodard testified that she did not have time to fire Rettig, but intended to do so immediately. No explanation was offered as to why Superintendent Earl Woodard had not discharged Rettig immediately after the accident in accor- dance with Respondent's alleged policy regarding rear-end accidents. As has been noted, Hook's several charges resulted in the payment of substantial sums of money to him and earned him Respondent's animosity. Respondent's defense that Hook was discharged in conformity with the rule call- ing for the automatic discharge in case of a rear-end acci- dent is without merit. First, the testimony of the Woodards that there was such a rule is undermined by the admission of President O'Brien that "we generally do give those that had a rear-end accident, and are chargeable, if there is no personal injuries, an opportunity to pick up the tab for it." Whatever rule there was in this regard was applied discrim- inatorily. Hook admittedly was not given the opportunity to pay for damage to the bus in lieu of discharge. Con- versely, Barnes was not automatically discharged although he had a rear-end accident which, he admitted, was due to his negligence. Instead, he was given the opportunity of paying for the damage to the bus. Not only was Barnes not automatically discharged after his rear-end accident, but after additional serious driving transgressions he was trans- ferred to school bus driving-despite the fact that General Manager Woodard and Superintendent Hartman admit- tedly were aware of his record. Furthermore, on September 11, 1975, transit driver Rettig had a rear-end accident and at the close of the hearing herein on October 1 was still employed by the Respondent. The excuse offered by Gen- eral Manager Woodard-that she was too busy to take action (despite her knowledge of the accident) -is not val- id. Even if she were too busy, Superintendent Woodard was fully aware of the accident but took no action to dis- charge Rettig. Nor does it appear from the record that Ret- tig was asked to pay for the damages as a condition to keeping his job. In sum, these incidents belie Respondent's contention that there was a rule providing for automatic discharge in the event of a rear-end accident. Rather, they demonstrate that the alleged rule was conceived and ap- plied, when desirable, as a means of ndding itself of an employee who had incurred its wrath by resorting to the Board's processes, thereby depriving him of his rights and of his employment and inhibiting other employees from utilizing their rights under the Act. I therefore find and conclude that by discharging Hook the Respondent violated Section 8(a)(4) of the Act. C Alleged Unilateral Change in Terms and Conditions of Employment This phase of the case arose in connection with the fact that Congress changed the observance of the Memorial Day 1974, from May 30 to May 27. However, the legisla- ture of the State of Illinois decided to retain May 30 as Memonal Day. Although the Respondent had generally confined driver- members of the Union to driving transit buses and charter work with transit buses, transit drivers had customarily and regularly performed one form of service to local schools, viz, transit buses serviced students attending the North Chicago High School. Transit buses picked students up on street corners. The students paid a transit fare, although at a reduced rate. During the week prior to May 27, 1974, Union Vice President Gillison asked Superintendent Earl Woodard which transit drivers would be making the school run on Memorial Day.' Woodard told Gillison that the school, which was to remain open, would not be serviced by the Respondent that day. On May 24, Gillison learned from School Bus Supervisor Hartman that the Respondent was, in fact, going to service the school-with school buses driv- en by nonunion school bus drivers. Gillison registered a vigorous protest with Superintendent Hartman. On Mon- day, May 27, Gillison observed the school buses en route to and from the high school. Gillison promptly filed a grievance over the Memorial Day action, claiming backpay for himself, Verdo Hall, and Francisco Rodriguez, the three transit drivers who would otherwise have driven the runs on May 27. Gillison at- tempted to discuss the grievance with President O'Brien. President O'Brien's response to Gillison was: The Union was trying to "f" the Company, why didn't they go on strike . . the school bus drivers went on strike, cost him $1,100 a month. He said: "Why don't you go on strike?" I explained to him under the con- tract we wouldn't go on strike. He said, "Go to the Labor Board." The collective-bargaining agreement contains the follow- ing provisions relating to holidays: X. Holiday- A. Holidays as defined in this Agreement, shall be New Years' Day, Decoration Day,' Independence Day, Labor Day, Thanksgiving Day and Christmas Day. B. All employees of the Company covered by the Agreement who do not work on any of the holidays listed in this section shall be paid eight (8) hours pay 6 Gillison did not identify which Memorial Day he was talking about However, it is clear from the context of the conversation that he was refer- rin^ to Monday, May 27 1 have taken judicial notice of the fact that the terms "Memorial Day" and "Decoration Day" are used interchangeably and are one and the same. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the straight time hourly rate of the position to which such employee is assigned subject to the following of exceptions: s In the event an employee works on such a holiday, he shall be paid a minimum of eight (8) hours pay at the rate of time and one half (1-1/2) for such work in addition to the holiday pay... . The collective-bargaining agreement also contains the following provision: XIV. Unwritten Working Conditions. All working conditions not specifically mentioned in this Agreement will remain as at present except if changed by mutual agreement... . The Respondent presented no evidence on this phase of the case. Gillison's testimony that union members custom- arily and regularly serviced the runs to and from the North Chicago High School stands uncontradicted. In these cir- cumstances, Respondent's reassignment of the work to nonunion school bus drivers constituted a unilateral modi- fication of established working conditions during the mid- term of a current contract, and as such constituted a unila- teral change and a refusal to bargain within the meaning of Section 8(a)(5) of the Act, and I so find and conclude. Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co, Chemical Division, 404 U.S. 157, 164 (1971); N.L R. B. v. Benne Katz et al., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 743 (1962). D. The Discharge of Keith Cowen and Surrounding Events Keith Cowen began to work for the Respondent in Sep- tember 1974 as a school bus driver. He was discharged on December 3, 1974. In November 1974, Cowen attended a meeting of school bus drivers called to discuss possible strike action over the departure of School Bus Superinten- dent Hartman. Ron Daverin, admittedly a supervisor, spoke at the meeting and announced that he had replaced Superintendent Hartman. Several drivers at the meeting stated that there was insufficient support for a strike in support of Superintendent Hartman. Cowen insisted on a poll of drivers, but was unsuccessful. Superintendent Dave- nn assured the drivers that he would assign work fairly pursuant to the "contract." 8 Cowen protested that there was no written confirmation of Daverin's promise. Later in November, Cowen spoke to Union Vice Presi- dent Larry Gillison about recruiting school bus drivers into the Union. Gillison told Cowen that another school bus driver, Jane Wigginton, had already expressed interest in that idea and suggested that Cowen get together with Wig- ginton. Cowen did so. In the latter part of November, Wig- ginton informed Cowen that the Union had secured space for an organizational meeting. On November 25, Superintendent Daverin called Cowen into his office and asked Cowen if he favored the organiz- 8 There was no contract between the school bus drivers and the Respon- dent ing effort. Cowen replied that he did and explained that he felt that Daverin was acting unfairly in handing out charter assignments to school bus drivers and that black drivers were being deprived of their fair share of charter work. Cowen explained that he was not sure that the Union could secure a majority among the school bus drivers, but that a meeting was the best way to determine the wishes of the majority.9 The organizing meeting was scheduled for November 27. Cowen and Wigginton telephoned drivers, urging them to attend. Cowen also drafted several notices announcing the meeting and posted them on November 27 in the drivers room, near an NLRB notice to employees (posted pur- suant to a settlement of an earlier 8(a)(3) and (5) charge). When Cowen arrived at the union meeting, held as sched- uled, he discovered that Superintendent Davenn and As- sistant Superintendent Randy Copenharve were present. He demanded that they leave the meeting, and after an extended discussion the supervisors were directed to and did leave the meeting. The following Monday, December 2, when Cowen went to work he entered the drivers' room and found that Gen- eral Manager Woodard had posted a notice of her own. The notice, itself, was not preserved and was not intro- duced into evidence. Cowen recalled that notice as follows: There are a couple of people trying to organize a union with school bus drivers or to consolidate them with ATU and they will just cause you trouble. There is no reason . . . to have a union; you have a contract. You have a contract and if you are unhappy with the way things are you can quit and find another job. General Manager Woodard, who admittedly posted the notice, recalled its contents as follows: According to our contract with the School District, the school bus drivers cannot be organized because ser- vice cannot be interrupted. When you were hired you knew school bus work was a non-union job. If you feel dissatisfied with the Company you are always free to leave. General Manager Woodard's notice was posted near the NLRB notice. On Tuesday, December 3, when Cowen finished work in the afternoon, he went through the drivers' room. He ob- served that the NLRB notice and General Manager Woodard's notice were missing. He inquired of Dispatcher Sal Vettesee about this and was referred to General Man- ager Woodard. Both Cowen and General Manager Wood- ard agreed that, when Cowen walked into the latter's of- fice, she did not know who Cowen was. Cowen asked General Manager Woodard if he could obtain copies of v The foregoing is based on Cowen's uncontradicted testimony Superin- tendent Daverm did not testify 10 The drivers' room is a rest area where employees take their breaks or wait on standby Also, drivers sometimes use the room to fill out their driving records There is an adjoining washroom The drivers' room is equipped with vending machines for candy, cigarettes, and coffee It is also used for the posting of notices, and the Respondent had been quite liberal in allowing matters to be posted there Such postings include picnic invita- tions, announcements of dances, sales offers, and political campaign litera- ture WAUKEGAN-NORTH CHICAGO TRANSIT CO. 841 her notice and of the NLRB notice. General Manager Woodard responded that she had no copies and did not know where the originals were. Cowen also said that he had posted notices which had been removed and said that he would appreciate it if she could get him copies of the Company and NLRB notices. According to Cowen, Gen- eral Manager Woodard "looked a little angry," and he left. When Cowen stopped to talk to Dispatcher Vettesee, Vettesee's phone rang, and after the telephone conversa- tion Vettesee told him that General Manager Woodard had fired him. According to Cowen, he returned to Gener- al Manager Woodard's office who told him that she had fired him "because you caused me so much trouble." General Manager Woodard's testimony concerning this incident is as follows: Cowen sought copies of the NLRB notice and of her own notice, explaining that he wanted the Labor Board notice "because he was going by that notice to organize employees and to protect himself." Cowen also inquired about the notice he had posted which had been taken down. General Manager Woodard told him that she had ordered them removed, because Cowen did not have the Respondent's permission to post such notices. In an- swer to a leading question, General Manager Woodard tes- tified that Cowen accused her of taking down the NLRB notice and her own notice about organizing. However, when asked precisely what Cowen said to her, she an- swered: He asked me if I was responsible for the removal of certain signs in the drivers room and I told him I was not; that I had posted them. I would have no reason to take them off.' Q. What else did he say to you? A. Well, I don't remember anymore. His attitude just wasn't right, I don't think, when he was talking to a superior officer.12 According to General Manager Woodard, she did not wait for Cowen to leave the room before firing him. She promptly told Cowen that he was through and phoned Vet- tesee to have Cowen's name taken off the driving schedule. In essence, the only basis claimed to justify Cowen's dis- charge was that "[h]is attitude just wasn't right . . . when he was talking to a superior officer." However, the admit- ted fact is that General Manager Woodard was aware that Cowen was engaged in organizing the school bus drivers, had posted a notice for an organizing meeting which she admittedly had ordered removed, and wanted the Board's notice "to organize employees and to protect himself." Thus, Cowen was engaged in a concerted union activity and was inquiring about the notices in pursuance of such activity, and Respondent was aware of that. In doing so, Cowen admittedly did not use any vulgar or obscene lan- 11 In a preheating affidavit, General Manager Woodard stated "Cowen said we were violating his rights by taking the union notice down He also seemed to be implying that the Company had taken the NLRB notice down " 12 General Manager Woodard testified twice in the instant proceeding In her earlier testimony, she admitted that Cowen did not use any obscene or vulgar language She described his attitude as "very belligerent He, in fact, screamed at me, accusing me of tearing down the government poster, plus my letter I thought that he was out of line " guage. And even if General Manager Woodard's testimony that Cowen screamed at her were to be credited, an inquiry whether she had removed the notices was not " so offensive, defamatory, or opprobrious as to remove it from the pro- tection of the Act." (Ben Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (C.A. 7, 1971).) Even if it were otherwise, it is well settled that "offensive, vulgar, defamatory, or opprobrious remarks uttered during the course of protected, concerted activities will not automati- cally destroy the right conferred by the Act to engage in conduct otherwise safeguarded by its text." (Ben Pekin Corporation, supra at 1028). See also Crown Central Petro- leum Corporation, 177 NLRB 322, 323 (1969); Boaz Spin- ning Co., Sub. of Standard-Coosa-Thatcher, 165 NLRB 1019, 1019-21 (1967), enforcement denied 395 F.2d 512 (C.A. 5, 1968); N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584, 587 (C.A. 7, 1965), enfg. 148 NLRB 1379 (1964). 13 I therefore find and conclude that Cowen was dis- charged by the Respondent in violation of Section 8(a)(3) and (1) of the Act. Also violative of the Act was the conduct of Superinten- dent Davenn when he called Cowen into his office on No- vember 25, and asked Cowen if he favored the organizing effort of the school bus drivers. In doing so, Superinten- dent Daverin did not provide Cowen with any of the safe- guards required by Johnnie's Poultry Co. and John Bishop Poultry Co., Successor, 146 NLRB 770, 775 (1964). I there- fore find and conclude that the Respondent thereby violat- ed Section 8(a)(1) of the Act. Similarly, Respondent violated Section 8(a)(1) of the Act when General Manager Woodard admittedly removed the notices that Cowen had posted in the drivers' room an- nouncing the organizing meeting of the school bus drivers. General Manager Woodard testified that she did so be- cause Cowen had not secured permission to post such no- tices. However, there is no evidence that any such permis- sion was required prior to the posting of notices in the drivers' room. But, even if it were, notices of picnic invita- tions, announcements of dances, sales offers, and political campaign literature had been posted in the drivers' room. Respondent, by prohibiting "the posting of material relat- ing to and in the course of concerted activity of its employ- ees, while having previously allowed the posting of other miscellaneous matter by the employees, disparately denied employees access to its bulletin boards for their concerted activity in violation of Section 8(a)(1) of the Act." (Vincent's Steak House, Inc., 216 NLRB 647 (1975)). See also Challenge Cook Brothers of Ohio, Inc., 153 NLRB 92, 99 (1965), enfd. in relevant part 374 F.2d 147 (C.A. 6, 1967); Gallup American Coal Company, 32 NLRB 823, 829 (1941), enfd. 131 F.2d 665 (C.A. 10, 1942). The notice which General Manger Woodard admittedly posted in the drivers' room contained the following state- ment: According to our contract with the School District, the school bus drivers cannot be organized because ser- vice cannot be interrupted. u The decisions relied on by the Respondent, viz, Maryland Drydock Company v NLRB , 183 F 2d 538 (C A 4, 1950), and NL RB v Billen Shoe Co, Inc, 397 F2d 801 (CA 1, 1968), are plainly inapposite 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereby, the Respondent clearly informed the employees that they did not have the right to self-organization under the Act. That contract, however, does not, and could not, deprive the employees of their statutory rights under the Act. It contains only commitments to provide effective ser- vice and a convenant by Respondent not to enter into any agreement "which will in any way interfere with the Contractor's ability to comply with this requirement." Of course, the Respondent could amply protect itself in the event the school bus drivers organized, by insisting upon a provision in its contract with the Union for a "no-strike" clause with an adequate quid pro quo in the form of binding arbitration. Plainly, then, Respondent's notice was a seri- ous misstatement of the statutory rights of the employees to organize and a serious interference with their exercise of the Section 7 rights. B. F. Goodrich Company, Louisville, Kentucky, 65 NLRB 1229, 1234, 1236 (1946); Theodore R. Schmidt, Doing Business Under the Assumed Name of Acme Industrial Police, 58 NLRB 1342, 1354 (1944); J. I. Case Company, 42 NLRB 85, 97 (1942), enfd. in relevant part 134 F.2d 70 (C.A. 7, 1943), affd. in relevant part 321 U.S. 332 (1944). I therefore find and conclude that by posting such notice the Respondent violated Section 8(a)(1) of the Act. E. The Discharge of Jane Wigginton Jane Wigginton began to work for the Respondent as a school bus driver in January 1973 In May 1974, she assist- ed other drivers in organizing a strike of school bus drivers and made recruiting calls to some drivers. She picketed during the 1-day strike and was one of a group pho- tographed on the picket line. The photo published in a newspaper was later posted in August 1974 on a company bulletin board, until Superintendent Hartman removed it. In June 1974, Wigginton telephoned the county public health department to complain about the Respondent's failure to provide separate washrooms for women. She told Superintendent Hartman about her complaint the same day. In November 1974, Wigginton discussed with employees Pat Peachman and Nancy Tipton possible action resulting from Superintendent Hartman's leaving the Respondent. She attended each meeting held to discuss possible strike action. She also took responsibility for notifying the news media of a possible strike, telephoning the local newspaper, radio station, the mayor of the city of Waukegan, and the superintendent of the public school system. She told each of them that the drivers felt that Superintendent Hartman's discharge was unfair and that strike action was necessary. In these conversations she identified herself by name. On the same day, Wigginton and two other drivers met with General Manager Woodard and Superintendent Earl Woodard. General Manager Woodard informed Wiggin- ton that she learned of Wigginton's strike publicity effort and had told the news media that no strike would occur. Later in November, as has been previously noted, she spoke with Cowen about organizing the school bus drivers under the auspices of the Union, and telephoned drivers to urge attendance at the organizational meeting. On November 26, during an automobile ride, Superin- tendent Daverin told Wigginton that he had heard that there was going to be a meeting about organizing the school bus drivers and asked Wigginton if she had orga- nized it and if she was really interested in the issue. Wig- ginton admitted that she had set the meeting up and felt that organizing was necessary. Superintendent Davenn ex- pressed his opposition to organizing. On November 26, Wigginton while operating her bus received a radio message from Superintendent Daverin to hurry back to the terminal and come to the office. When she arrived, Superintendent Daverin told her that she was fired. Superintendent Daverin told her that Jim Smith, a Waukegan school official, had telephoned the Respondent to complain about Wigginton's driving and wanted her fired Superintendent Daverin told her that there had been a "state inspector" in town for several weeks and that the "inspector" had followed Bus 325 (Wigginton's bus); that Smith had alleged, based on the "inspector's" reports, that Wigginton had been speeding and had run a red light and a stop sign while on a run earlier in the afternoon. Daverin told Wigginton that she would receive a copy of the "state inspector's" report the next morning. He added that "if everything blows over you will be hired back." 14 The following day, November 27, Wigginton reported to the terminal to secure her paycheck and to see the state inspector's report. When she arrived at the terminal, Super- intendent Daverin was explaining to the group of assem- bled drivers that a state inspector, who had come up from Springfield, Illinois, was following buses. Superintendent Daverin told Wigginton that she would get the statement by about 10 a.m. Wigginton agreed to return, explaining to Superintendent Davenn that she would be at the union hall assisting with balloting by any school bus drivers who would be unable to attend the union meeting that evening. About 10 a.m., Wigginton returned to the terminal and was told by Assistant School Bus Superintendent Randy Copenharve that she was rehired. According to Wigginton's uncontradicted testimony,15 Assistant Super- intendent Copenharve told her: "Actually you were never fired because if you were fired you would have to lose your seniority and your pay, so you are not rehired, you just were never fired." Copenharve explained that Jim Smith had refused to commit himself to the complaint of the pre- vious day. However, Wigginton was suspended for the rest of the day. She complained to Superintendent Daverin that she had been "lied to and discriminated against." Daverin replied that she had her job back, so there was no problem. Wigginton returned to work the following Monday, De- cember 2, but was not dispatched. Instead, she was held as a standby driver. On December 4, Wigginton and Superintendent Daverin discussed the results of the balloting at the union hall. Wig- ginton told Superintendent Daverin that the results had been "great," that the Union had secured a majority of the ballots cast. Superintendent Daverin then showed Wiggin- ton two memos regarding her alleged driving misconduct. 14 As previously noted, Superintendent Daverin did not testify 15 Assistant Superintendent Copenharve did not testify WAUKEGAN-NORTH CHICAGO TRANSIT CO. 843 One was from James F. Smith, assistant business manager, Waukegan public schools, and read as follows: In talking to Mr. Harry Bowen, Associate for Sup- portive Services, Waukegan Public School District #60 and as a follow up to his letter, it is my opinion that this driver was in violation of the safety driving standards set up by the O.S.P.I. office. Also according to the contract set up by District #60 and Waukegan- North Chicago Transit Co., we have the right to ask for the dismissal of this driver. We feel that the safety of our students should be adhered to at all times, and should in no way be jeop- ardized by any driver that violates the rules of the road. He also showed her a memorandum from Harry Bowen, associate superintendent, Waukegan public schools, ad- dressed to Jim Smith, assistant to the business manager. The memorandum, dated November 27, reads as follows: Today between 2:30 P.M. and 3:00 P.M. by chance, I was following Bus 325 South on McAlister Ave. This bus appeared to have a full load of young students. By the time it passed the Annex Building, the bus was going between 45 and 50 miles per hour, in a congest- ed area and approaching the Carman School zone. The bus stopped at Helmholz and McAlister and proceeded to the next block much too fast for school zone and turned West on the one way street and pro- ceeded to Lewis Ave. At Lewis, the bus made a left turn on Dugdale with no signal. At Dugdale and Elmwood, the bus did not come to a stop at the 4 way stop and proceeded to go south on Elmwood. After failing to come to a complete stop at 4 way stop with a load of young children, I felt it was impor- tant to notify you for the safety of the children. In my mind this bus was also traveling entirely too fast for the safety of children on city streets, in addition to failure to stop, indicate proper turn signals. It is my opinion that you should discuss proper driving habits with this driver. The human cargo on school buses is far too valuable to take any chance or be in such a hurry. It would be better to be late for a pickup at a school rather than take a chance of an accident. After reading the memos, Wigginton led Superintendent Daverin to a wall map of Waukegan and pointed out that she could not have engaged in the conduct described in the memo. She explained that she could not have reached the speed described on McAlister Street because of the condi- tion of the street and parking congestion. She also pointed out the physical impassibility of the route described. Thus, the westbound one-way street described (south of Helm- holz) could only be Cummings. The memo states that Bus 325 went west on that street to Lewis Avenue. However, Cummings Street ends at Jackson Street, one-half mile short of Lewis. It is not possible to reach Lewis Avenue on Cummings Street, because such a route would be blocked by an intervening mental health facility.16 After Wigginton explained the matter to Superintendent Daverin, he went into the office of General Manager Woodard. Wigginton heard laughter emanating from General Manager Woodard's office, and then Superintendent Daverin reap- peared and said: "Well, we are not going to go by this letter [Bowen's memo] anyway. This [Smith's memo to Re- spondent] is the letter we are talking about. It says you have got to be fired. You are fired." Wigginton protested that she was being fired for her union activity. Superinten- dent Daverin responded: You are just a 25-year old baby. Marge [General Man- ager Woodard] will sit back there and you are not helping her any. She is an ill person. You are violating her civil rights by trying to assert your own. General Manager Woodard testified that she made the decision to fire Wigginton and that she did so reluctantly because she was aware of Wigginton's union activity and was concerned lest Wigginton would accuse Respondent of unlawful motivation for the discharge. General Manager Woodard testified that the Smith memo and the Bowen memo did not arrive simultaneously. First came the Smith memo, and the Bowen memo did not arrive until after two telephone conversations with Smith. However, later Gener- al Manager Woodard testified that, after receiving the Bowen memo, she telephoned Smith and pointed out that "no way could this have happened and he admitted that the inspector may have got his directions mixed." Accord- ing to General Manager Woodard, Smith told her that the inspector was not familiar with Waukegan "as a stranger to town." General Manager Woodard testified that she had no choice in the matter, and could only discharge Wiggin- ton because of the school district's right to demand dis- missal under the existing contract with the Respondent. A review of the circumstances surrounding Wigginton's discharge throws considerable doubt on the validity of Respondent's defense. First, she was told by Superinten- dent Daverin that "if everything blows over you will be hired back." The next day, Assistant Superintendent Co- penharve told her that she had not been fired. The follow- ing Monday, she was back at work as a standby driver. Two days later, after she discussed with Superintendent Daverin the result of balloting by the school bus drivers for union representation, he showed her the memos from Smith and Bowen. Then, after Wigginton pointed out to him the impassibility of the route described by Bowen, he discussed the matter with General Manager Woodard Fol- lowing this, he announced to Wigginton that she was fired, that the Respondent was going by Smith's memo, not by Bowen's. In the light of Respondent's admitted knowledge of Wigginton's union activities, and in the light of General Manager Woodard's admitted knowledge of the fact that Wigginton could not have driven the route described by Bowen, Respondent's contention that it was required to block south of Helmholz) is incorrect, he was nevertheless describing an impassible route, as the second, third, and fourth streets south of Helmholz, i e, May Street, Eighth Street, and Ninth Street, likewise do not go through to Lewis Avenue, but are interrupted by Dugdale Park which intervenes Wigginton's explanation was not contested by the Respondent To the con- 16 Reference to the street map of Waukegan , in evidence, indicates that, trary, as hereinafter noted, General Manager Woodard testified that she even if the assumption that Bowen was referring to Cummings Street (one told Smith that the route described by Bowen is impassible 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge Wigginton becomes suspect. So is General Man- ager Woodard's testimony of Smith's alleged explanation that Bowen was a "stranger to town" and "may have got his directions mixed." Such an alleged explanation might have been acceptable if Bowen had been a "state inspec- tor" (as he was sometimes designated by General Manager Woodard in her testimony) who had come from out of town to observe school bus drivers. But General Manager Woodard knew that Bowen was not an "inspector," as he was described in both memos as an associate superinten- dent of the Waukegan School District-a position which would hardly make him a "stranger to town." That Smith would have offered such an explanation strains one's cre- dulity and leads me to doubt whether any such conversa- tion occurred. Realizing that it could not rely on the Bowen memo, Respondent switched to reliance on the Smith memo which it interpreted as calling for Wigginton's dismissal. Yet, Smith's memo did not explicitly demand Wigginton's dis- missal. It merely referred to the School District's "right to ask for the dismissal of this driver." Whether Smith, who did not testify, would have insisted on Wigginton's dis- charge, if the Respondent had effectively pointed out to him the incongruity of Bowen's memo, is open to specula- tion. It must be concluded that General Manager Woodard was not interested in explaining the matter to Smith, but chose conveniently to rely on Smith's memo which it for- tuitously interpreted as requiring Wigginton's dismissal, thereby enabling the Respondent to rid itself of a known union activist. Respondent argues that two other union activists, Pat Peachman and Nancy Tipton, were not discharged, but were in fact promoted, and that this negates the conclusion that Wigginton was discharged for union activity. The an- swer to this contention is found in N.L.R B v. Challenge- Cook Brothers of Ohio, 374 F.2d 147, 152 (C.A. 6, 1967): The Respondent argues that because it did not dis- charge other employees who were known to be union members, Weldon's discharge cannot be said to have been motivated by union animus. However, the mere fact that all union members or supporters are not dis- charged, does not disprove the fact that an employee's discharge is based upon an unlawful discriminatory motive. Nachman Corp. v. N L.R B., 337 F.2d 421 (C.A. 7, 1964). To the same effect, see N.L.R.B. v. W. C. Nabors d/b/a W. C. Nabors Company, 196 F.2d 272, 276 (C.A. 5, 1952). I therefore find and conclude that Wigginton was dis- charged in violation of Section 8(a)(3) and (1) of the Act. F. The Layoff of Harley Brown and Daniel Campion Harley Brown and Daniel Campion worked as bus me- chanics at Respondent's terminal. Both worked on transit and school buses, including diesel engine vehicles. Cam- pion began to work for the Respondent on August 26, 1974, and Brown on December 2. Each Joined the Union on his 45th day aboard, pursuant to the contractual union- security clause. Campion had worked for the Respondent prior to 1974. In August 1973, he began working for the Respondent as a pion discussed infra Superintendent Delabre did not testify mechanic's helper and signed a membership card in the Union on his 45th day aboard. Concerned about rumors that President O'Brien did not favor union membership, Campion asked Superintendent Delabre whether he would be fired upon joining. Superintendent Delabre responded that he "didn't want to stick his neck out and put his job on the line," and they agreed that Campion should discuss the matter with President O'Brien. Campion thereupon asked President O'Brien whether joining the Union would cause his discharge or whether he was to stay, and President O'Brien shook his head and said, "No, that it wasn't going to work out." Shortly thereafter, Campion approached President O'Brien after he left his office and told him that he was quitting because he did not want his record to show that he had been discharged. In August 1974, Campion again applied for work with the Respondent, and went to work on August 26. On that day, Superintendent Delabre told Campion that he "had to talk like hell wth Mr. O'Brien" to get Campion rehired. On January 29, 1975, Brown and Campion attended a meeting of the Greater Lake County Mass Transit District held in Waukegan to consider Respondent's request for financial aid. Present, also, were General Manager Wood- ard, Superintendent Delabre, and Union Officials Fred- beck and Gillison. At the conclusion of the meeting, Super- intendent Delabre suggested to Brown and Campion that they draft a list of possible safety improvements in the shop area. Brown and Campion agreed to do so. Their joint product was a three-page document containing 47 nota- tions of unsafe equipment and work practices. Brown and Campion discussed what to do with the list and decided that, since the list might provoke Respondent's wrath, they should turn the list over to the Union for submission to the Respondent. The list was presented to a union membership meeting, where a motion was passed that Union President Fredbeck and Shop Steward Matijevich should present the list to Superintendent Delabre. They did so on the af- ternoon of February 18. Within 5 minutes, Brown was called into Superintendent Delabre's office. Delabre asked Brown if he had had anything to do with the list. Brown claimed credit for the entire list. Delabre then asked "what the hell" Brown meant by the list. Brown replied that Dela- bre has asked for it. Delabre then asked why Brown had given the list to the union officials. Brown replied that he had sought "such protection the Union had to offer." Su- perintendent Delabre asked Brown why he had not sent the list to a state or Federal agency, and Brown replied that he did not think it was appropriate to go that way because the Respondent might have to pay fines for the things that it was found guilty of. Superintendent Delabre then began criticizing Brown's work for the previous day, involving the change of a clutch, contending that Brown had spent too much time in doing so. Brown protested that Delabre was seeking reprisal for the drafting of the list. After Brown explained to Delabre the various assignments that Delabre had given him while he was changing the clutch, Delabre agreed that the time spent by Brown in changing the clutch was reasonable. 17 17 Brown's testimony was uncontradicted, as was the testimony of Cam- WAUKEGAN-NORTH CHICAGO TRANSIT CO. 845 On February 21, approximately 72 hours later, Brown and Campion were laid off. At the same time, Tom Stretch- er, the most junior employee in the shop department and not a member of the Union, was also laid off. On his last day of employment, Campion went to Super- intendent Delabre's office to find out what kind of a rec- ommendation he would get. Delabre told Campion that he would have a very good recommendation. Delabre also told Campion that he had talked to a representative of International Harvester, Brown's former employer, and had been told that Brown "had been involved out there with the Union against the Company and the reason why he left there was that the Union backed off of his case that he had filed against OSHA." In the same conversation, Superintendent Delabre told Campion that "if I didn't have anything to do with the safety list that it was very well possible that I would have a job." On the following Monday, February 24, Brown and Campion went to the Regional Office of OSHA and filed charges alleging discrimination and retaliation for safety protests and handed in their safety list. The next day they filed a charge in the instant case. Approximately a week after the layoff, Union Vice President Gillison attempted to present a grievance to the Respondent on behalf of Brown and Campion. General Manager Woodard and Su- perintendent Earl Woodard jointly stated that they would not accept the grievance because Brown and Campion had already filed a charge with the Board. On February 28, General Manager Woodard wrote to Union President Fredbeck, stating that Brown had ignored the collective- bargaining agreement by filing charges with the Labor Board. General Manager Woodard directed Fredbeck to a contract provision governing layoff and recall 18 and con- cluded: It is the Company position that these cases should not have gone to the National Labor Relations Board be- fore all avenues had been taken. Therefore we are ask- ing that the above cases be submitted to arbitration as soon as possible. Later, General Manager Woodard told Vice President Gil- lison that Campion might be recalled in June 1975, but that the Company would not recall Brown, because Brown had "caused trouble" and she did not know why Superinten- dent Delabre had hired Brown in the first instance, since he had "caused trouble" elsewhere Although Brown, Campion, and Stretcher were laid off on February 21, General Manager Woodard admitted that Stretcher, who was junior to Brown and Campion, was back at work in the shop within a few days after the layoff. Foreman Cantu, testifying for the Respondent, said that Stretcher was never, in fact, laid off. With regard to the reasons for laying off Stretcher and then reemploying him, General Manager Woodard testi- fied as follows: 18 Par E, art Vi, of the collective-bargaining agreement which reads in pertinent part as follows When forces are decreased employees would be laid off in reverse order of seniority Q. (By Judge Maller): Mrs. Woodard, why was Mr. Stretcher laid off? A. He was the youngest man in the shop. Q. What was the reason for the layoff? A. Well, financial reasons, economy reasons, and we had to layoff some employees. Q. Then why did you take him back? A. We had no one to-to work the school buses, so he was hired back as a school bus mechanic, and also he held a C license and could drive a school bus. s Q. So that when you laid off Mr. Stretcher, Mr. Campion and Mr. Brown, that left you without any school bus mechanics; is that right? A. We had some of the school bus drivers that were working in between their school runs as school me- chanics. Q. But you had no full-time? A. No full-time. Q. At the time you laid the three men off didn't you think you needed some full-time mechanics? A. The Superintendent of Maintenance said no. With regard to the economic considerations which, it is claimed, prompted the layoffs, General Manager Woodard testified to a loss of subsidy payment of $6,000 per year from the city of North Chicago and a loss of $18,000 an- nual subsidy from the Lakehurst Shopping Center, both in late 1973. She testified further that in June 1974, the Re- spondent lost a $24,000 annual subsidy from the city of Waukegan, which was not reinstated until October 1974, and was later discontinued. In December 1974, the region- al transport authority, established to promote area transit operations, awarded the Respondent a partial subsidy to cover 1974 losses from transit operations. Early in 1975, Respondent's agreement with the U.S. Navy to provide transit buses for transportation of prisoners was canceled."' General Manager Woodard testified that the service pro- vided consisted of four buses furnished once a week for transportation from a suburban Chicago naval installation to O'Hare Airport. No evidence was presented as to the amount of revenue derived from this service. It is well settled that Campion's and Brown's action in compiling a list of unsafe working conditions was a con- certed activity protected by the Act. N.L.R.B. v. Washing- ton Aluminum Company, Inc., 370 U.S. 9, 16-17 (1962). Their undertaking did not lose its protected status by their turning the list over to the Union; rather, the communica- tion of information concerning working conditions to the majority representative added another element of statutory protection to the undertaking. It is clear from the record that the Respondent did not approve or welcome the submission of the list of safety complaints to the Union. When Superintendent Delabre received the list from the Union, he angrily asked Brown "what the hell" Brown meant by submitting the list to the 19 The record indicates that service under this contract terminated in Feb- ruary The record does not indicate when the Respondent was informed of the cancellation of the contract 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Three days later, Stiperintendent Delabre told Campion that if he had had nothing to do with the safety list it was very well possible that he would have a job. In the same conversation, Superintendent Delabre told Cam- pion that he had checked on Brown's union background at the International Harvester Company, Brown's former em- ployer, and had learned that Brown had been more aggres- sive than the UAW in pursuing safety issues. Similarly, General Manager Woodard told Vice President Gillison that the Respondent would not recall Brown because Brown had "caused trouble" and she did not know why Superintendent Delabre had hired Brown in the first in- stance, since he had "caused trouble" elsewhere. In addi- tion to the foregoing is the matter of timing. Campion and Brown were laid off within 72 hours after the Union had submitted the list to Superintendent Delabre. Finally, there is the fact that Streicher, a nonunion employee and the most junior employee in the shop, although ostensibly laid off at the same time as were Campion and Brown, was immediately reinstated to his job. Respondent's defense that these layoffs were required by the financial condition of the Company is without merit and must be rejected. First, it is noted that the Respondent did not submit any financial statement to support this con- tention. Cf. Calip Dairies, Inc., and Cosmopolitan Ice Cream Co., Inc., 204 NLRB 257, 263 (1973); Goshen Litho, Inc., 221 NLRB 795 (1975). It relied only on the loss of subsidies and the loss of the contract with the U.S. Navy for the transportation of prisoners. It may, of course, be conceded that the loss of subsidies would affect Respondent's finan- cial condition. However, it is significant that the Respon- dent lost its subsidies from the city of North Chicago and from the Lakehurst Shopping Center in late 1973, before both Campion and Brown were hired. The same is true of the loss of subsidy from the city of Waukegan. Thus, Cam- pion and Brown were hired after the loss of subsidies had affected Respondent's financial condition. With regard to the cancellation of its contract with the U.S. Navy for the transportation of prisoners in February 1975, the Respon- dent did not disclose how much of a loss this represented in dollars and cents; all that the record discloses is that the service consisted of four buses furnished once a week for the transportation of prisoners from a suburban installa- tion to O'Hare Airport. In the light of the foregoing, I find and conclude that the loss of subsidies and the cancellation of the Navy contract were advanced as a pretext and were not the cause of the layoff of Brown and Campion. I fur- ther find and conclude that such layoffs were violative of Section 8(a)(3) and (1) of the Act. G. The Layoff and Discharge of Joyce Walt and James Myrick In February 1975, Joyce Walt, James Myrick, and Lu- ther Vorns were the three lowest seniority transit drivers on Respondent's payroll. They were laid off on March 7, and Walt and Myrick were discharged on March 18. Walt began to work for the Respondent in the autumn of 1972 as a school bus driver. She continued in that capacity until July 1974, when she was transferred to a transit bus driving position. During the May 1974 strike of school bus drivers, Walt picketed and provided her motor home as a picket comfort station. As the senior school bus driver, Walt was asked by Supervisor Hartman to participate in strike settlement negotiations with himself and General Manager Woodard and Superintendent Earl Woodard. The meeting was concluded with the employees' represen- tatives accepting the Respondent's offer of a wage increase. After her promotion to transit driver, Walt began to dis- cuss with other drivers her opinion that work assignments were unfairly distributed by the Respondent, discipline was uneven, and that the Union was ineffective as a source of protection. In October 1974, she complained to Vice Presi- dent Gillison about her inability to secure charter work. Within a week, Superintendent Woodard stopped her and told her that she had a charter assignment, since she had been "bitching." When Walt explained that she could not take that charter, Superintendent Woodard told her, "Don't ever bitch again." On March 3, Walt called a meeting of approximately 18 union members at her home, contacting each of the transit drivers by phone. She led the discussion at the meeting, calling for unity in upcoming contract talks with the Re- spondent and in the face of action like the Respondent's layoff of union mechanics and replacing them with non- union employees. Walt also complained of a lack of strong leadership in the Union, calling for membership support of union officers. She suggested that if, even with membership support, union leaders could not do any better, the mem- bers should seek their resignations and elect leaders who would not be afraid to talk to the Company. The next day, March 4, Walt received notification of a layoff effective the following Friday, March 7. Notification came in a letter stating: Due to the present business conditions it is necessary that your Company reduce the numbers of employees. The reduction in forces will include shop and transit. As you no doubt are aware our charter and daily rid- ers have dropped off considerably. The government has cancelled all military charters until further notice. The letter stated that the three junior transit drivers: Walt, Myrick, and Vorns would be "temporarily laid off." The letter continued: "It is our hope that we will be in a posi- tion to rehire all those that would be laid off." The following Sunday, Walt drafted a grievance con- cerning the layoff, which was delivered to the Respondent by Union Vice President Gillison the next day. Gillison discovered that day that the Respondent had scheduled two or three transit drivers for a minimum of 2-1/2 hours' overtime each-the first weekday after the layoff. Gillison referred Superintendent Woodard to a provision in the constitution and bylaws of the Union- In a local division, where members of this Union are laid off due to lack of work, no member of such local division shall be permitted to work overtime except in the case of emergency." Superintendent Woodard replied that Gillison was a "trou- blemaker," and ordered Gillison out of his office. Union members continued to work overtime, pending discussions with the representative of the International Union. I WAUKEGAN-NORTH CHICAGO TRANSIT CO. 847 On Wednesday, March 12, Walt, Myrick, and Vorns met with a Board agent. All three drivers agreed to file a charge in Case 13-CA-14096. Walt signed the charge as the Charging Party, after the three were informed by the Board agent that only one signature was necessary. The next day, March 13, Walt went to the terminal and presented a back-to-work slip from her doctor to Superin- tendent Woodard.20 On Friday, March 14, she telephoned Superintendent Woodard and asked about being put back to work, explaining that she had expected the doctor's slip to accomplish that. Superintendent Woodard replied, "Joyce, you were laid off. Remember, you were not fired; you are only laid off." On March 17, the Respondent received the original charge in Case 13-CA-14096. The next day, March 18, Superintendent Woodard met Vorns at the garage and told Vorns that if he would withdraw the charge he would be put back to work, but not until Superintendent Woodard heard from the Labor Board about the withdrawal. That evening Vorns wrote a letter to the Board agent and gave a copy to Woodard the following day. The letter from Vorns stated: Re: Grievance report to the Waukegan North Chicago Transit Company of March 7, 1975, a copy which was sent to your office. I wish to withdraw my name and disregard my grievance. The Company has agreed to put me back to work on receipt of this notice. On the same day that Superintendent Woodard spoke to Vorns, he wrote to Walt and Myrick, discharging them: After reviewing your work record with the Company and the time that you have missed work, we have de- termined that we no longer desire your services as an employee. You are therefore dismissed effective this date. Vorns returned to work on March 20, after delivering his withdrawal letter to Superintendent Woodard. The Re- spondent subsequently hired two new transit drivers. The foregoing is not disputed by the Respondent. Super- intendent Woodard explained that the layoff was for lack of work and that the discharge of Myrick and Walt was for lack of work and absenteeism; that Vorns was reinstated because he had a good record. General Manager Woodard testified that she participated in the discharge decision and that Walt, Myrick, and Vorns were laid off because of the loss of the Navy charter work and that Walt and Myrick were fired because both had taken time off: Walt because of illness and Myrick for personal reasons. She stated that there was no other basis for the decision. The record indicates that Walt missed 1 day of work on November 16, 1974. She was subsequently off of work on a medical leave of absence for 4 weeks. No action was taken by the Respondent for either absence. She missed 3 days in January 1975 because of influenza. Her absence on that occasion was approved by Superintendent Woodard. On February 8, she was hospitalized. She was released from the hospital on February 10, but kept under a doctor's care 20 At the time Walt had been on sick leave for some time thereafter. On February 25, Superintendent Woodard wrote her, noting that he understood that she had left the hospital on February 10, and stating that if she did not inform him of her plans, he would assume that she was not interested in working. After receiving Superinten- dent Woodard's letter, Walt had her husband contact him. On March 13, as previously noted, she gave Superinten- dent Woodard the return-to-work slip from the doctor. Myrick began to work for the Respondent in the latter part of October 1974 as a School bus driver and became a transit driver on November 26. In February 1975, after obtaining prior approval from Superintendent Woodard, Myrick took a trip to Florida to attend a family funeral. According to Myrick's uncontradicted testimony, Superin- tendent Woodard told him to take a week or "whatever you need." In fact, Myrick took more than a week, because his car broke down on the return trip. Myrick claimed that he had no money with which to telephone the Respondent about the delay. Myrick also missed 4 days work in March 1975, when his wife was sick. He phoned in on the first day he missed. He was not warned or disciplined as a result of these missed days. The layoff of Walt followed by 1 day her convening of an irregular and unofficial meeting of a large number of drivers in the bargaining unit in her home. The meeting was convened for the announced purpose of discussing a new contract, Respondent's discrimination, and union leadership. The record contains uncontradicted evidence that Superintendent Woodard was aware of the meeting before it convened 2' This membership meeting and Walt's layoff preceded by only 3 weeks the expiration of the cur- rent collective-bargaining agreement, making Walt, who was pressing for more aggressive union action, a worthy target for the Respondent's animus at a critical period in the Union-Respondent relations. Cf. Big Three Industries, Inc, 201 NLRB 700, 711 (1973). The contention that Walt (and Myrick and Vorns) were laid off because of lack of work is completely unsupported. To the contrary, it was contradicted by the fact that begin- ning March 10, 3 days later, extensive overtime was re- quired to cover the absence of employees who had been laid off due to a "lack of work." See Maple City Stamping Company, 200 NLRB 743 (1972). Furthermore, within 2 weeks, Vorns, the junior driver, was recalled after, at the suggestion of Superintendent Woodard, he withdrew his name from the charge in which he had been included. Also, it is uncontradicted that thereafter the Respondent hired new transit drivers. It is clear from the foregoing, and I find and conclude, that the claimed "lack of work" was pretextual. The inclusion in the layoff of employees Myrick and Vorns, both less active in the Union than Walt, does not derogate from the foregoing finding. It merely demon- strates that Myrick and Vorns were included with Walt to cloak Walt's layoff with an air of legitimacy. N.L.R B v. 2i Although established by hearsay evidence, Wait's testimony as to Su- perintendent Woodard's knowledge was received without objection It is made plausible by the broad dissemination of information about the meet- ing which was borne out by the high attendance Furthermore, although Superintendent Woodard testified at length in this proceeding, he did not deny such knowledge In these circumstances, Walt's testimony as to Super- intendent Woodard's knowledge is of probative value Colony Kitchens, Inc, 217 NLRB 671, fn 6 (1975), and cases therein cited 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tesoro Petroleum Corporation, 431 F.2d 95, 97 (C.A. 9, 1970); Majestic Molded Products, Inc. v. N.L.R.B., 330 F.2d 603, 606 (C.A. 2, 1964). I therefore find and conclude that, by such layoffs, the Respondent violated Section 8(a)(3) and (1) of the Act. The circumstances surrounding the March 18 discharge of Walt and Myrick demonstrate that, regardless of the character of the layoff, the discharges were the result of the filing of the initial charge in Case 13-CA-14096. On March 14, after the layoff, but prior to the service of the charge, Superintendent Woodard assured Walt (consistent with the Respondent's letter of March 4) that the action of March 7 was only a layoff, and that no one had been fired Howev- er, on March 18, the day after the Respondent was served with the original 8(a)(3) charge, the layoff was suddenly converted to a discharge of Walt and Myrick. The alleged justification for the discharges was excessive absenteeism. However, there is no evidence that either Walt or Myrick was ever warned concerning their absences. The Respondent's sudden concern with Walt's and Myrick's at- tendance records was plainly a pretext belatedly seized upon to justify the discharge action I therefore find and conclude that the Respondent discharged Walt and Myrick because of the filing of the charge, in violation of Section 8(a)(4) of the Act.22 H. The No-Solicitation Rule According to Union Vice President Gillison, on Febru- ary 3, 1975, he had had a discussion with the school bus drivers about belonging to the Union. This discussion took place in the drivers' room. Following this discussion, Gilli- son was called into the office where he was told by both of the Woodards that "I could not converse about union ac- tivities on Company property ... " Although General Manager Woodard testified that she did not remember any such conversation with Gillison, she admitted that she was present on at least one occasion when Superintendent Woodard "told drivers that they were not allowed to talk about union matters on Company time or Company prop- erty." By prohibiting the employees from discussing union matters in nonworking areas during nonworking time, the Respondent interfered with the Section 7 rights of the em- ployees, in violation of Section 8(a)(1) of the Act, Republic Aviation Corporation v. N L R B, 324 U.S. 793 (1945), and I so find and conclude. Concluding Findings In summary, the foregoing discussion demonstrates, and I find and conclude, that the Respondent engaged in a series of unfair labor practices in which it discharged Hook 22 The fact that Myrick did not sign the charge is of no consequence It is well settled that, where an employee is discharged because his name is in- cluded in a charge, the discharge violates Sec 8(a)(4) of the Act, although the employee had not actually signed the charge Murcole, Inc, 204 NLRB 228, 237 (1973), Frank Miller's Sons Fireproofing Company, 164 NLRB 192, 199 (1967), Kanmak Mills, Inc, Kulpmont Manufacturing Company, inc, 93 NLRB 490, 492-493 (1951), modified on other grounds 200 F 2d 542 (C A 3, 1952), Burnside Steel Foundry Company, 69 NLRB 128, 136 (1946) for having filed numerous charges against the Respondent, unilaterally changed the terms and conditions of employ- ment of the transit drivers, discharged Cowen for attempt- ing to organize the school bus drivers, illegally interrogated Cowen concerning his position on organizing the school bus drivers, removed Cowen's notices for an organizing meeting, posted a notice informing the school bus drivers that they may not be organized, discharged Wigginton be- cause of her union activities, laid off Brown and Campion because of their concerted, union activities, discriminatori- ly laid off Walt and Myrick and subsequently discharged them because they had filed charges against the Respon- dent, and illegally promulgated an illegal no-solicitation rule, in violation of Section 8(a)(1), (3), (4), and (5) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent illegally discharged Warren B. Hook, Keith J. Cowen, and Jane Wigginton, laid off Harley Brown and Daniel Campion, and laid off and subsequently discharged Joyce Walt and James My- rick, I shall recommend that the Respondent be ordered to offer them immediate reinstatement to their former jobs, discharging, if necessary, any employees hired to fill such jobs, or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights, and make them whole for any loss of earnings each may have suffered by reason of Respondent's discrimina- tion against them, with interest to be computed in the cus- tomary manner.23 Having found that the Respondent deprived Larry Gilli- son, Verdo Hall, and Francisco Rodriguez of the opportu- nity of working on May 27, 1974, by unilaterally changing the working conditions provided for in the collective-bar- gaining agreement, I shall recommend that the Respondent be ordered to make them whole for any loss of earnings each may have suffered by reason of the Respondent's ac- tion, with interest to be computed in the customary man- ner I shall further recommend that the Respondent be or- dered to preserve and make available to the Board or its 23 F W Woolworth Company, 90 NLRB 289 (1950). Isis Plumbing & Heating Co, 138 NLRB 716 (1962) A WAUKEGAN-NORTH CHICAGO TRANSIT CO 849 agents, upon request, payroll and other records to facilitate the computation of the backpay due and the right to em- ployment. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employees' rights safeguarded by the Act, I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act 3. All transit drivers and maintenance employees em- ployed by the Respondent at its Waukegan, Illinois, loca- tion, excluding clerical employees, guards, professional em- ployees and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been, and still is, the exclusive representative of all the employees within said appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, within the meaning of Section 9(a) of the Act. 5. By unilaterally changing working conditions relating to the operation of transit buses to serve students of the North Chicago High School on May 27, 1974, the Respon- dent engaged in a refusal to bargain, in violation of Section 8(a)(5) of the Act. 6. By discharging Warren B. Hook because he had filed charges against the Respondent, the Respondent has en- gaged in an unfair labor practice within the meaning of Section 8(a)(4) of the Act. 7. By discriminatorily discharging Keith J . Cowen and Jane Wigginton, the Respondent has engaged in unfair la- bor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 8. By laying off Harley Brown and Daniel Campion, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 9 By laying off Joyce Walt and James Myrick, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 10. By subsequently discharging Joyce Walt and James Myrick, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(4) of the Act. 11. By coercively interrogating Keith ,J. Cowen concern- ing his sympathy for the Union , the Respondent has en- gaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 12. By removing notices posted by Keith J. Cowen for an organizational meeting, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 13. By posting a notice informing the school bus drivers that they may not organize , the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 14. By informing Larry Gillison that the employees could not engage in union discussions on company proper- ty during nonwork time, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. [Recommended Order omitted from publication.]