Union Bus Terminal of Dallas

UNION BUS TERMINAL OF DALLAS Union Bus Terminal of Dallas, Inc. and Union Bus Terminal Steering Committee. Case 16-CA-6646 August 11, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On May 11, 1977, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a limited exception and supporting and answer- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Union Bus Terminal of Dallas, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's 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 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was heard at Dallas, Texas, on October 20, 1976, based on a charge filed June 18, 1976, and a complaint issued on August 11, 1976, and amended at the hearing, alleging that on or about May 28, 1976, Union Bus Terminal of Dallas, Inc. (herein Respondent),' threatened its employees with discharge for engaging in union and concerted activities, advised employees that it knew the identity of those passing out union cards thereby creating an impression that these activities were under surveillance, ' The name of Respondent appears as amended at the hearing. 2 All dates are in 1976. 231 NLRB No. 63 on or about June 10 interfered with its employees' selection of a collective-bargaining representative by refusing to allow a representative of the Union to sit in on a contract grievance meeting, and threatened orally that employees would be fired if a representative of the Union continued to come to Respondent's facility.2 In its answer Respon- dent denied the commission of any of the unfair labor practices alleged in the complaint. At the conclusion of the hearing the General Counsel argued orally. Oral argument was waived by Respondent and the Charging Party, both of whom filed briefs. All briefs and arguments have been carefully considered. 3 Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION As alleged in the complaint and admitted in the answer, I find that Respondent is now, and has been at all times material herein, a Delaware corporation maintaining an office and place of business at 1500 Jackson Street, Dallas, Texas, where it is engaged in the sale of intrastate and interstate bus passenger tickets, and intrastate and inter- state package express services. During the preceding 12 months, Respondent in the course and conduct of its business rendered interstate bus passenger and package express services valued in excess of $50,000. During the same period of time Respondent received gross revenues valued in excess of $250,000 from its services. I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1l. THE LABOR ORGANIZATIONS The Union Bus Terminal Steering Committee, and the Amalgamated Transit Union, AFL-CIO-CLC, are each labor organizations within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's employees are represented by the Union Bus Terminal Steering Committee, an independent union, hereafter referred to as the Committee. This case arises in the context of an effort by the Amalgamated Transit Union, hereafter referred to as the A.T.U., to become the bargaining agent. Thus, on April 27, 1976, David Stoops, an organizer for the A.T.U., contacted certain of Respon- dent's employees by telephone, and later met with them in his room at the Baker Hotel. An organizing drive was set up to obtain signed authorization cards from employees in order that the A.T.U. could petition for a Board-conducted election. Stoops estimated that between the commence- ment of the campaign in April and June 10, he made approximately 12 or 13 visits to Respondent's terminal to discuss the Union with employees Ellen Beard, Erven Davis, Linda Trent, and James Carter. These conversations 3 Certain errors in the transenpt have been noted and are hereby corrected. 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD averaged about 10 minutes each and occurred either on their breaks in the cafeteria and in other areas of the terminal. On May 10 Stoops filed a petition for representa- tion on behalf of the A.T.U. Since he had only the hotel address in Dallas, Stoops used Ellen Beard's address on the petition. It is undisputed that Beard was one of the most active employees in the Union's card-signing drive, that her activities were known to Respondent, and that Stoops was known to Respondent as the A.T.U. organizer who was contacting employees at the terminal. On May 28, according to Beard, when she arrived at work about 1:45 p.m., she was called to the table of Information Director Saporia Harris who accused her of being constantly late for work. Beard insisted she was not late, and offered to take Harris to the timeclock to prove that she had arrived at work on time. Harris responded that this was not necessary, and stated that there had been a lot of discussion lately and that they were going to lay off all the troublemakers. Harris denied having made any remark to Beard concerning troublemakers. She testified that Beard had been late quite often, and that on at least three occasions in April and May she discussed the matter with Beard. On one occasion Harris told Beard that she was clocking in at her regular worktime, but not reporting to her work station, and that this had to stop. At another time, which earlier in her testimony she described as having occurred in June, Beard phoned in to work sick, and when Harris said Beard would need a doctor's statement Beard yelled into the phone, "I am so sick and tired of being treated this way because I want the union here. No one else has to bring in a doctor's statement." According to Harris, she replied "Yes, they do have to. I have never mentioned union to you. I see no reason why you should mention union to me." When Beard reported for work the following day Harris told her that she felt Beard owed her an apology because she had never said union to Beard and saw no reason why Beard should mention the Union to her. According to Harris, Beard replied "I think I am getting paranoid. I'm sorry. I apologize." Beginning around I p.m. on May 28, Respondent's area general manager, Floyd Holland, and Terminal Manager James M. Poe met with the Steering Committee for a period of between I and 3 hours. Also present for the Company was Assistant Terminal Manager Ted Burk.4 Those present for the Steering Committee were Linda Trent, Erven Davis, Mitchell Gurst, James Carter, O. B. Gates, and Betty Reitchy. According to Terminal Manager Poe, Respondent knew that Stoops was the representative of the A.T.U. who had been talking to employees, trying to interest them in A.T.U. representation. Holland spoke to the Committee about being quite concerned about an outside union trying to infiltrate the Company. Holland said that the Steering Committee should remain indepen- dent and not go with some outside International union affiliated with the AFL-CIO. Poe spoke, agreeing with Holland's position. In his testimony Poe admitted that he had seen Stoops talking with Respondent's employees, that he suspected employees were using their working time for union discussions, and that he tried to stop it by circulating around the work areas to see what was going on. Poe expressed the position at the meeting that the Steering Committee should have exercised their leadership in an effort to keep the outside union out. Then Linda Trent spoke up in defense of the Committee, and stated that the union cards were distributed by employees before the Steering Committee was ever contacted. At this point Poe interjected, "Ellen Beard for one." Then Trent continued, stating that the Committee should not be blamed for the organizing, and that they only wanted to have an election to allow the employees to voice their opinion. Trent's testimony concerning the remark made by Poe about Beard is corroborated by the testimony of Mitchell Gurst. Poe did not deny making the remark. He admitted "circulating" through the terminal in an effort to discover who was talking with Stoops. Although he asserted that his interest in these activities was directed toward putting a stop to the conduct of union activities on working time, no evidence was adduced to show that Respondent had any rule previously in effect which prohibited such conduct in the bus terminal. There is ample evidence in the record, concerning the criticisms by Poe and Holland at the May 28 meeting, of the Committee's failure to thwart the A.T.U. campaign to show that the Respondent was primarily interested in stopping the employee movement which sought to substitute the A.T.U. for the Steering Committee as bargaining representative. Under these circumstances I find that Poe's remark to the effect that he knew "Ellen Beard for one" was passing out cards for the A.T.U. constituted a threat that the Respondent knew the names of employees who were active on behalf of the A.T.U., thereby creating the impression that it was keeping the union activities of its employees under surveillance. The validity of this conclusion is reinforced by Poe's testimony about how he "circulated" around the terminal. Thus, Poe violated Section 8(a)(1) of the Act. I also find that Saporia Harris violated Section 8(a)(l) in that the credited testimony of Ellen Beard reveals that she threatened her with discharge on May 28 by telling her that the Company was going to lay off the troublemakers. I find this statement, considered in the light of Poe's testimony, to be a clear reference to Beard's activities in soliciting card signatures for the A.T.U. Beard impressed me as a precise and candid witness, while the testimony of Harris was confused and evasive. When pressed on cross-examination, Harris gradually changed her testimony in the direction of that given by Beard. Although she admitted having knowledge of a card-signing campaign, she denied knowing that Beard had any association with the A.T.U. drive. I find this incredible in view of Poe's admitted knowledge acquired from observing activity in the terminal, and in view of Harris' testimony that in one of their conversations she accused Beard of punching her timecard but not reporting promptly to her work station, thereby implying that Beard was in some way misusing this time. On June 10 the Steering Committee met with Poe pursuant to the contractual grievance procedure, with respect to the grievance of one Ricky Moore. The 4 Holland and Burk did not testify. 348 UNION BUS TERMINAL OF DALLAS testimonies of Poe and Stoops are in substantial agreement with respect to the incident which followed. After the Steering Committee entered Poe's office, Stoops entered. No introductions were made. Poe recognized Stoops as the representative for the A.T.U., but no one asserted that Stoops had been designated to act as spokesman at the grievance session on behalf of either Moore or the Committee. According to Poe, as Stoops entered he asked if he could help him. Stoops replied, "Yes, sir. I'm coming in with these people." Poe replied, "No, sir. We do not recognize Amalgamated Transit as our bargaining agent, and therefore I will not allow you at this hearing." Then, according to Poe, Stoops told Steering Committee Chair- man Davis that he would see him after the hearing, and left. Stoops testified that as he entered Poe's office Poe stood up and said, "You're not sitting in on any hearing with me." Then, Committee Chairman Erven Davis said "May I ask why?" Poe responded, "Yes. We do not have a contract with the Amalgamated Transit Union. We have a contract with the Steering Committee, therefore, I'll meet with no one but the Steering Committee." Then Stoops said, "Well, go ahead with your procedures." At this point Stoops thanked Poe, told Davis he would talk with him later, and left the office. Paragraph 7(c) of the complaint alleges that Respondent, through Poe, interfered with, restrained, and coerced its employees in the selection of their collective-bargaining representative by refusing to allow Stoops to sit in on a contract grievance meeting on June 10. I find, to the contrary, that Respondent did not violate Section 8(a)(1) of the Act by Poe's conduct at this meeting. From the testimony of both Poe and Stoops, it is clear that neither Stoops or any member of the Committee took any action at the outset of the meeting which would have obligated Respondent to meet with Stoops. Although Poe knew that Stoops was a representative of the A.T.U., no one in the room at any time asserted that the Committee had selected Stoops to appear as a spokesman either for Moore or for the Committee, or made any attempt to protest Poe's exclusion of Stoops. I shall recommend that this allegation of the complaint be dismissed.5 Following the June 10 grievance meeting, between 3 and 5 p.m., Erven Davis was called to Poe's office. Poe told Davis to tell Stoops that if he kept coming around the bus station he was going to cause someone to get fired. Davis asked, "Who? Are you trying to say me?" Poe answered, "No, I'm not talking about any particular person." Poe testified that he told Davis that he wanted him to advise Stoops "not to come on the premises during the guys' working time and talk with them. If he continued to do so and caused them not to do their work, that someone could get fired from not doing their work." I credit Davis' version of this conversation and find that Poe violated Section 8(aX (1) of the Act by restricting Stoops from the premises. Davis' version is consistent with Poe's expressed concern that Respondent wished to stop the drift of its employees' sentiment toward the A.T.U. No evidence I Neither is there any evidence that Poe had received any official notice concerning the outcome of an employee vote on or about June I on the question of affiliating with the A.T.U. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, whatsoever was adduced concerning the existence of any rules promulgated by Respondent in advance of the A.T.U. drive which would have properly restricted any classifica- tions of persons from the terminal, either during employ- ees' working time or at other times. Moreover, the evidence clearly shows, when considered against the background of other credible evidence in this case, that Poe announced to Davis the restriction on Stoops' access to the premises for the explicit purpose of interfering with his efforts to promote the A.T.U. among Respondent's employees. Against this background, Poe's threat to discharge employ- ees if Stoop continued to come to the terminal to talk with them violated Section 8(aX)(1) of the Act as alleged in paragraph 7(d) of the complaint. CONCLUSIONS OF LAW i. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union Bus Terminal Steering Committee, and the Amalgamated Transit Union, AFL-CIO-CLC, are each labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening employees that Respondent knew the identity of an employee engaged in union organizing activities, thereby creating the impression that its employ- ees' union activities were under surveillance, Respondent violated Section 8(aX)() of the Act. 4. By threatening employees with discharge because of their union activities, Respondent violated Section 8(aX)() of the Act. 5. Respondent has not violated the Act in any respects other than those specifically found. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the posting of an appropriate notice at its Dallas, Texas, facility. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The Respondent, Union Bus Terminal of Dallas, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that it knows the identity of employees engaging in union activities, thereby creating the impression that employees' union activities are under surveillance. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening employees with discharge because of their union activities. (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Dallas, Texas, facility, copies of the attached notice marked "Appendix." ? 7 Copies of the notice, on forms provided by the Regional Director for Region 16, shall be signed by an authorized representative of Respon- dent and posted immediately upon receipt thereof, and maintained for 60 consecutive days thereafter, in conspicu- ous places, including all locations where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law, and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT threaten our employees that we know the identity of employees who engage in union activities, thereby creating the impression that the union activities of our employees are under surveil- lance. WE WILL NOT threaten our employees with discharge because of their union or protected concerted activities. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. All our employees are free to engage in union activities on behalf of any labor organization, or concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are also free to refrain from any or all such activities. UNION Bus TERMINAL OF DALLAS, INC. 350