Texas Bus Lines, Inc.

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Bus Lines, Inc. and Teamsters, General Driv- ers, Warehousemen and Helpers Local Union No. 968 affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 23-CA-9484 and 23-CA-9643 21 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 5 December 1984 Administrative Law Judge Robert A. Gritta issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge' s rulings, findings, and conclusions only to the extent consistent with this decision. We agree with the judge that the Respondent violated Section 8(a)(1) by interrogating employees and encouraging them to form an employee com- mittee and by soliciting them to disaffiliate with their exclusive representative.' The judge found, however, that the Respondent did not violate Sec- tion 8(a)(2) and (1) of the Act by dominating, inter- fering with, or rendering unlawful support to a labor organization. The judge concluded that the employee-elected 1983 driver committee did not meet the criteria for a labor organization within the meaning of Section 2(5) of the Act, and that the Respondent's recognition of the committee was limited to "grievance-type" problems that did not include the substance of wages, hours, and condi- tions of employment. Finally, the judge found that the Respondent did not intend to "bestow repre- sentative status" on the elected committee. There- fore, the judge dismissed the 8(a)(2) complaint alle- gation. We reverse. In August 19832 Regional Vice President Sam Mayes met and initiated separate conversations with employee drivers Don Craig, Nelson Gonza- lez, and Roy Nowlin to discuss electing a drivers' committee. Mayes told them that other drivers de- sired a new employee committee, but then asked i On 23 July 1984, in a second election, after the parties agreed to set aside the election, Teamsters, General Drivers, Warehousemen and Help- ers Local Union No 968 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America was elected as the exclusive representative of all the Respondent's employees and was certified by the Board 2 All dates are in 1983 unless otherwise stated Gonzalez and Craig to question the drivers about their support for a committee election. According to Craig's uncontroverted testimony, Mayes also said that he wanted the drivers to elect a new com- mittee, then go to the Labor Board and retrieve the Teamsters' representation petition. During their conversations with Mayes, both Craig and Gonza- lez objected to having an employee-committee election. Craig said "he did not think an election was needed," and Gonzalez stated that an election would be "illegal.", Despite these employees' concerns, on 16 August Mayes held a mandatory meeting for drivers to elect an employee committee that would be recog- nized by the Company as the representative of the drivers. Mayes told the assembled employees that "it had been brought to his [Mayes] attention that employees wanted a driver committee to deal with, to bring their problems to." He also told the em- ployees that he wanted to have better relations be- tween drivers and management. Craig testified that at the meeting he asked Mayes to recognize the representative (Teamsters) elected at the union hall. Gonzalez reiterated his concern that a drivers' committee election would be "illegal" because the employees had already chosen the Teamsters as their exclusive representa- tive. Notwithstanding the employees' objections to having another election, Mayes instructed each driver to vote either for or against an employee committee. Mayes left the meeting room, and five employee drivers were then selected as committee members. After returning to the meeting, Mayes announced his approval of the elected members and told the drivers that the committee would be a "go-between" for management and the drivers. The Respondent met with the committee after the election to discuss problems such as the charter board which, according to Mayes' testimony, di- rectly affects employees' wages; procedures for employee reprimands; and miss-outs (i.e., tardiness). When this meeting concluded, the Respondent and the committee agreed on a charter board proce- dure, and Mayes agreed to give the drivers ad- vance notice of reprimands and to allow committee members to be present with employees at discipli- nary meetings. They also agreed to meet jointly each month, but there is no evidence of subsequent meetings between management and the committee as a whole. In fact, the record does not detail the Respond- ent's relationship with the driver committee after the initial 16 August meeting when the committee was first formed. There is evidence only that in October committee member Craig met with Re- gional Vice President Mayes on behalf of employee 277 NLRB No. 75 TEXAS BUS LINES David Smith, who requested an extended leave of absence. Craig told management that Smith did not want to lose his seniority and that other employees had previously been granted extended leave with- out loss of their seniority. Subsequently, Smith was granted leave without loss of his seniority. Craig also testified that he represented employee Bob Harrington when Harrington sought redress be- cause Mayes had treated him harshly. According to Craig's uncontroverted testimony, Mayes apolo- gized to Harrington at Craig's request. For a labor organization to come within the meaning of Section 2(5) it is necessary only that there be employee participation, and that the orga- nization exist for the purpose, in whole or part, of dealing with an employer concerning employees' grievances, labor disputes, wages, hours, and condi- tions of employment.3 The 1983 driver committee, composed of five elected employee members, met with the Respondent on 16 August to discuss and deal with the Respondent concerning employees' grievances, policies affecting employees' wages, and other terms and conditions of employment. Committee member Craig subsequently dealt with the Respondent concerning two separate employee grievances. Accordingly, contrary to the judge, we find that the 1983 driver committee is a labor orga- nization within the meaning of Section 2(5) of the Act. Furthermore, we find that the Respondent vio- lated Section 8(a)(2) by interfering with the forma- tion and administration of the 1983 driver commit- tee. The Respondent interfered when it held a man- datory meeting on 16 August and strongly suggest- ed (over certain employees' objections) that the driver committee be established, and then showed its willingness to bargain with the committee in the 16 August management-committee meeting, and in its subsequent dealings with a committee member concerning employee grievances.4 Although the Respondent interfered with the formation and administration of the 1983 driver committee, "it does not automatically follow" that the Respondent unlawfully dominated the commit- tee in violation of Section 8(a)(2) of the Act.5 The General Counsel has failed to prove by a prepon- derance of the evidence that the Respondent con- trolled and supported the committee and its mem- bership.' As observed above, the record does not See NLRB v. Cabot Carbon Co, 360 U.S 203, 210-215 (1959) See Wheelco Co., 260 NLRB 867 (1982) Spiegel Trucking Co., 225 NLR13 178, 179 (1976) Although the Respondent expressed dissatisfaction with one commit- tee member, the evidence does not show the Respondent attempted to control committee membership 627 reveal in detail the nature of the relationship be- tween the Respondent and the committee beyond the 16 August meeting and a handful of other con- versations. There is no evidence that the Respond- ent permitted the committee to use its premises for meetings, or paid employees for time spent in oper- ating the organization, or controlled the organiza- tion by having its own representatives as members. We find, in the absence of such evidence, that the Respondent did not unlawfully dominate the 1983 driver committee.7 AMENDED REMEDY Having found that the Respondent has violated Section 8(a)(2) and (1) of the Act by interfering with the formation and administration of a labor organization, we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Therefore, we shall order that the Respondent withdraw and withhold all recognition from the 1983 driver committee unless and until such com- mittee has been certified by the Board. ORDER The National Labor Relations Board orders that the Respondent, Texas Bus Lines, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their prefer- ences between an exclusive representative or an employee committee. (b) Soliciting employees to disassociate them- selves from their exclusive representative and to as- sociate with an employee committee. (c) Interfering with the formation of, assisting, or otherwise interfering with the operation and ad- ministration of the 1983 driver committee, or any other plant committee or labor organization of its employees. (d) Recognizing or in any manner dealing with the 1983 driver committee, or any reorganization or successor thereof, as the representative of its employees for the purpose of dealing with Texas Bus Lines, Inc. concerning grievances, wages, hours, and conditions of employment, unless and until such committee has been certified by the Na- tional Labor Relations Board as the exclusive rep- resentative of its employees. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- 7 Cf Rennselaer Polytechnic Institute, 219 NLRB 712 (1975); Grafton Boat Co, 173 NLRB 999, 1002-1003 (1968). 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the purposes and policies of the Act. (a) Withdraw all recognition from the 1983 driver committee as a representative of any of its employees for the purpose, of collective bargaining, unless and until it has been certified by the Nation- al Labor Relations Board as the exclusive repre- sentative of the Respondent's employees. (b) Post at its facility located in Houston, Texas, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 23, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. - IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found herein. s If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. The Act gives employees the following rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate our employees about their preferences for an exclusive representative or an employee committee. WE WILL NOT solicit our employees to disassoci- ate with their elected exclusive representative or to associate with any employee committee. WE WILL NOT interfere in the formation of, assist, or otherwise interfere with the operation and administration of the 1983 driver committee, or any other plant committee or labor organization of our employees. WE WILL NOT recognize and bargain with the 1983 driver committee, or any reorganization or successor thereof, as the representative of our em- ployees for the purpose of dealing with us concern- ing grievances, labor disputes, wages, hours, and conditions of employment, unless and until such committee has been certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold all recognition from the 1983 driver committee as the representa- tive of our employees for the purpose of collective bargaining, unless and until it has been certified by the National Labor Relations Board as the exclu- sive representative of our employees. TEXAS Bus LINES, INC. Robert Levy, Esq., for the General Counsel, Allen P. Schoolfield Jr., Esq., of Dallas, Texas, for the Re- spondent. Eric H. Nelson, Esq., of Houston, Texas, for the Union. DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was tried before me on May 23 and 24, 1984, in Houston, Texas, based on charges filed by Teamsters Local Union No. 968 (Teamsters) on October 18, 1983, and March 1, 1984, and a consolidated complaint issued by the Regional Director for Region 23 of the National Labor Relations Board on April 16, 1984. Employer ob- jections to the election in Case 23-RC-5115 were also consolidated for hearing.' The complaint alleged that Texas Bus Line, Inc. (formerly Transportation Enter- prises, Inc.)2 (Respondent) violated Section 8(a)(1), (2), (3), and (5) of the Act by coercive interrogations and so- licitations of employees, by initiating an employee com- mittee to act as the employees ' representative, and by ' Amended at the hearing. 2 All dates are 1983 unless otherwise specified. TEXAS BUS LINES withholding a promised wage increase at a time when a bona fide question concerning representation of its em- ployees existed.3 Respondent's timely answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. Briefs were submitted by the General Counsel and Respondent. Both briefs were duly considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor on the witness stand, and on substantive, reliable evidence considered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT 1. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Texas Bus Line, Inc. is a Texas corporation engaged in the charter and service business in Houston, Texas. Ju- risdiction is not in issue. Texas Bus Line, Inc. in the past 12 months, in the course and conduct of its business op- erations, derived gross revenue in excess of $250,000 and purchased and received at its Houston, Texas facility goods and materials valued in excess of $50,000 directly from points located outside the State of Texas. I con- clude and find that Texas Bus Line, Inc. is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that Teamsters is a labor organization within the meaning of Section 2(5) of the Act. II. BUSINESS OF RESPONDENT Respondent operates a bus service company of charter runs and bid runs. The bid runs are part and parcel of the metropolitan transit scheme and are competitive. Op- erators and drivers are paid either a flat daily rate or a mileage rate depending on the nature of their route. In addition to operators and drivers, Respondent employs mechanics and service personnel. Although Respondent operates facilities statewide, this case is only concerned with the operations within the Houston, Texas metropol- itan area. Approximately 60 people are employed at the Houston facility. III. BACKGROUND During 1982 an employee committee representing the drivers and operators was formed. On July 14, 1982, a contract between the drivers and management was con- s Teamsters, Petitioner in Case 23-RC-5115, moved at trial to sever the "R" case, hold another election, and dismiss the refusal-to-bargain al- legations of the consolidated complaint The General Counsel and Re- spondent joined in the Teamsters' motion I granted the motion to sever Case 23-RC-5115 and remanded the case to the regional director for the holding of a second election. I also, on the record, dismissed the allega- tions of 8(a)(5) violations and the necessity to hear evidence on Respond- ent's objections to the first election. 629 summated with a termination date July 31, 1984. The ef- fective date of the contract was August 1, 1982. The contract contained substantial clauses, including a clause on wages, with rates set for August 1, 1982, through July 31, 1983, and an increase in wage rates for August 1, 1983, through July 31, 1984. On November 10, 1982, Teamsters filed an "R" case petition for an election with the Houston Regional Office of the National Labor Relations Board (Case 23-RC- 5115). The petition, as filed, sought an election among all employees of Respondent, including the drivers, but did not list the driver committee as a recognized bargaining agent of Respondent's employees nor was the July 14, 1982 contract listed as a current contract. The unit of employees in the instant case includes the employees for- merly represented by the driver committee originally named in the caption as "Party of Interest." A hearing on the Teamsters petition was set for November 24, 1982, and was attended by Respondent and the Team- sters. The record is silent about whether a notice of the hearing was sent to the driver committee; however, the committee neither made an appearance at the hearing nor took part in the proceedings. Before the hearing record was opened, a Stipulation for Certification Upon Consent Election was executed by Respondent and the Teamsters setting an election for January 12, 1983, among driver, mechanic, and service employees of Re- spondent. The election was held and the Teamsters pre- vailed. On January 17, Respondent filed objections to the conduct of the election. The Driver Committee (Party in Interest) did not take part in the objections. On February 1, the Teamsters sent a list of job stewards to Respond- ent naming seven employees as stewards while the inves- tigation of the objections were ongoing. On February 16, the Regional Director issued his report on the objections finding no merit to the objections. Respondent, on Feb- ruary 25, appealed the Regional Director's findings to the Board. While the appeal was pending, the Teamsters, on August 1, sent a request to Respondent's counsel that the wage increase incorporated in the driver agreement of July 14, 1982, to be effective August 1, be put into effect. On August 16, the Respondent's vice president Sam Mayes held a meeting with drivers and operators. Sever- al months later, on November 18, Respondent granted a wage increase, equal to that contained in the July 14, 1982 agreement, to its drivers and operators. The Team- sters filed an unfair labor practice charge complaining of Respondent's August and November actions. Subse- quently, the Board ruled on Respondent's appeal and on February 17, 1984, ordered an evidentiary hearing of Re- spondent's objections to the election. An additional charge was filed by the Union in March 1984, and the unfair labor practices were consolidated with the objec- tions on April 16, 1984.4 4 The background is based on undisputed fact pleadings and testimony, admissions in the pleadings, and objective evidence in the record. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. ISSUES TO BE RESOLVED Having dismissed the 8 (a)(5) allegations of the com- plaint, severed the "R" case, and remanded it to the Re- gional Director for holding another election, I shall now consider for resolution complaint allegations of violations of Section 8(a)(1), (2), and (3).5 I take judicial notice that a second election was conducted by the Regional Direc- tor in Case 23-RC-5115 on July 23, 1984, resulting in the Teamsters #968 being certified as the exclusive rep- resentative of Respondent's Houston employees.6 A. Whether Respondent violated Section 8(a)(1) by coercively soliciting and interrogating its employees. B. Whether Respondent violated Section 8(a)(1) of the Act by meeting with its driver employees on August 16, 1983. C. Whether the labor organization within the meaning of Section 2(5) of the Act resulted from that meeting of driver employees. D. Whether Respondent violated Section 8(a)(2) of the Act by unlawful assistance to or domination of a driver employees' committee. E. Whether Respondent violated Section 8(a)(3) of the Act by refusing to grant the wage increase requested by Teamsters on August 1, 1983. V. THE ALLEGED UNFAIR LABOR PRACTICES Sam Mayes, regional vice president of Respondent, testified that he formulates the labor relations policies for the Houston, Texas facility. Mayes executed an agree- ment with a driver committee of employees in 1982. The committee and Respondent were signatory to the agree- ment on July 14, 1982, with the wages, benefits, and work rules contained therein to become effective on August 1, 1982. In addition, there was a wage increase scheduled in the contract for August 1, 1983. Subsequent to the election between Respondent and the Teamsters in January 1983, Respondent did not deal with the Union because, in its view, the election had not been properly conducted. Several communications were received from the Teamsters requesting the implementa- tion of the wage increase specified in the previous driver agreement of July 1982. Respondent did not respond to the Union's request nor did it put the increases into effect. During the week of August 8, Mayes initiated separate conversations with drivers Don Craig, Nelson Gonzalez, and Roy Nowlin. The conversations took place in Mayes' office either before or after shifts. Mayes told each of them that several drivers had voiced an interest in having a newly elected driver committee. Mayes asked them what their thoughts were on having a new driver committee. Mayes could not recall any specific re- sponse from any of the three men, but he did recall that some objections were raised to such an election. Mayes 5 The General Counsel's issue framed in its brief, "whether Respond- ent violated Section 8(a)(1) of the Act by expressing its displeasure with an employee because charges had been filed with the National Labor Re- lations Board ," is not alleged in the complaint nor is it within the scope of either charge I, therefore, shall not consider the issue in my determi- nations 6 A joint posttrial submission is received into the record as It Exh 1. asked Craig to determine from the other drivers whether they would support the idea of a new driver committee. Craig told Mayes that he would check it out. Gonzalez may have suggested to Mayes that the stewards chosen by the Union should be the only committee but Mayes could not be sure. Although Mayes could not recall when, he did recall telling drivers, suggesting that he deal with the stewards, that it would not be fair to all employees because the stewards were selected from a group numbering only 15 to 16 and were not from a rec- ognized group. Mayes also told them that a committee elected from all the drivers would be recognized as rep- resentatives of the drivers by the Company and would replace the committee signatory to the July 1982 con- tract. Mayes knew that Craig, Gonzalez, and Nowlin were sympathetic to the Teamsters and, on occasion, he told them individually that he thought each were supportive of the Union. On August 16, a meeting of all drivers, approximately 35, was held. Mayes chaired the meeting which was to explain to the drivers that several of their peers wanted a driver committee to bring problems, and the committee, in turn, would present the problems , to management. The problems did not include wages, hours, and working conditions. Mayes told the drivers that having a commit- tee was their choice and if they wanted a committee they could vote the people to the committee. Mayes denied telling the drivers that there would be an election for the committee. Mayes recalled that either driver Don Craig or Nelson Gonzalez questioned whether such an election was legal. Mayes thought he may have said that he did not know whether an election was legal or not. Mayes left the meeting and shortly was called back into the room. Craig told Mayes that he, Nelson, Roy Nowlin, Ralph Lane, and Jackie Kelly were elected as the driver committee. Mayes told the committee that he would meet with them, on whatever basis they preferred to discuss any problems the employees had and repeated that this committee would be the only recognized repre- sentative of the employees. Although Mayes may not have told the drivers so, he did not recognize the stew- ards selected by the Union because the Union's certifica- tion was not final. Mayes and the committee did meet for 4 to 5 minutes, but Mayes had no specific recall of the substance. Mayes did recall discussions of the charter board and deviations from the practice of first in, first out. He also recalled that on occasions, other than the meeting, he discussed failure of notification to employ- ees, why they were being summoned to the office, and the company rules on "late showings" and "miss outs" which were detailed in an August 12 memo to drivers. Although Mayes could not specifically identify the em- ployee or the time, he did recall that Nelson Gonzalez complained to him on behalf of other employees about the operation of the charter board sometime after the committee was elected. Mayes stated that the newly elected committee was to be a go-between for the employees and management for problems emanating from the employees but management would still communicate directly with employees indi- TEXAS BUS LINES viidually and through no other means. Mayes considered the committee operative only for those employees who preferred speaking to a fellow employee rather than management. Mayes allowed only grievance type prob- lems to come through the committee, e.g., if a commit- teeman voiced an employee's complaint that the employ- ee thought he was not making enough money, Mayes would answer, "Tell the employees to work harder." If an employee was shorted on his check, Mayes would act on such information from a committeeman . One instance, which happened in October, involved employee David Smith who had applied for a leave of absence and was told he would lose his seniority in the interim. Smith and Craig met with Mayes in the company office and dis- cussed the situation. Craig reminded Mayes that other employees had taken leaves of absence without loss of seniority. Mayes questioned such a practice for a leave of several months which Smith was seeking . Mayes ulti- mately agreed that Smith could retain his seniority if he reported back for duty by December 31. Subsequent to the unfair labor practice charge of Oc- tober 5, Mayes confronted Craig with the charge and told Craig he was no longer to be trusted. Mayes consid- ered the filing of the charge to be a turnabout on the part of Craig after taking part in the selection of the new driver committee. In either January or February 1984, Mayes called a meeting of all drivers and 30 to 40 attended. Mayes could not recall whether the meeting was mandatory, but he did state that employees are paid to attend manda- tory meetings. The February meeting was convened to discuss a reduction in pay for the drivers of the Clear Lake Express. That express run was bid through the Metropolitan Transit Authority and bid time was ap- proaching. Mayes told the drivers that he had to lower the hourly bid rate to have a chance of renewing the route on March 31, 1984. Mayes told the drivers that the express: rate of $85 had to be cut $10 and charter runs had to revert to the August 1, 1982 mileage rate. Mayes asked the assembled drivers to vote whether to take the cut in pay or not. Several employees objected to both cuts in pay when only the express route was in difficulty. Mayes nevertheless wanted the drivers to vote on both wage cuts. Mayes left the room while the drivers voted and, after the count, he found out the wage cuts were voted down by one vote. Two or three days later, Mayes held a second meeting of drivers to vote on the wage cut for the express run only. The question was voted on by the drivers and the vote resulted in a wage reduction for the route to be effective April 1, 1984. Mayes submitted a bid at the lower rate for the express route and on February 23, 1984, advised the drivers that the Company's bid was accepted. Don Craig testified he has worked for Respondent ap- proximately 3-1/2 years as a coach operator on a park- and-ride metro run. In early August, Craig had several conversations with Mayes about an election among the drivers. Mayes told Craig that some drivers were dissatisfied with the 1982 driver committee. Mayes said he would like the drivers to elect a new committee, then go to the Labor Board and retrieve the "R" case petition, and go back to the 631 old ways of doing things. Craig replied that he did not think and election was needed, but he would talk to the men and see what they had to say. The next day Craig reported to Mayes that the men did not want to have an election because representatives had already been elected at the union hall and the drivers preferred to wait a while. Mayes told Craig that a mandatory meeting of drivers would be held the following week. A notice of the meeting was posted on the company bulletin board and the meeting was set for August 16. Thirty-three drivers attended the meeting and Mayes was present with Curtis McKinney, operations manager. Mayes ad- dressed the group stating that the dissatisfaction of some drivers with the 1982 driver committee caused him to suggest that an election for a new committee be held. Mayes said he wanted to have better relations between drivers and management. Craig spoke up and asked Mayes to recognize the committee elected at the union hall. Mayes declined to recognize the union-elected com- mittee. Mayes said each driver could do what he wanted to do, but Mayes wanted everyone to vote. Nelson Gon- zalez told Mayes that an election now would be illegal and several drivers argued for and against another elec- tion. Ultimately, Mayes and McKinney left the room and the drivers decided to vote on a new committee. Mayes returned to the room and learned that Craig, Nelson Gonzalez, Ralph Lane, Jackie Kelly, and Roy Nowlin were elected as the new committee. The meeting ad- journed and the new committee met with Mayes and McKinney. Several problem areas were broached by the commit- tee. The charter board, advance notice to employees of reprimands, presence of committee members with em- ployee being reprimanded, and miss-outs were discussed among the committee members and Mayes and McKin- ney. The discussions resulted in an agreement on charter board procedure and Mayes agreed to give drivers ad- vance notice of reprimands and to allow two committee members to be present with the employee. Craig stated that management in the past had never al- lowed an employee being reprimanded to have any rep- resentative present. Mayes told the driver committee that they would be the go-between for drivers and manage- ment. Scheduled meetings between the committee and management were discussed and it was agreed that they would meet jointly once a month. Of the several agree- ments reached between the new committees and manage- ment, none were reduced to writing. In October, after Mayes received the Labor Board charge filed by the Teamsters, he showed the charge to Craig and asked if Craig agreed with it. Craig told Mayes he did agree with the charge and a heated argu- ment ensued. Mayes, at one point, told Craig he was not to be trusted. Mayes also reminded Craig that the metro contract would soon run out, the drivers would not get their union, and it would be a long, hard battle. Shortly thereafter a driver, David Smith, wanted to request a leave of absence and asked Craig to accompany him when he spoke to Mayes and McKinney. Craig and Smith met with Mayes and McKinny. Mayes agreed to give Smith a leave of absence through December but 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a loss of seniority. Craig responded to Mayes that other employees had received leaves of absence without loss of seniority. Mayes asked Smith why he had brought Craig with him and said to Smith that the Company was not going to tell Craig "shit." Craig immediately left Mayes' office. Later Craig was involved as a representa- tive for employee Bob Harrington who was spoken to harshly by Mayes. Craig and Harrington sought redress and Mayes did eventually apologize to Harrington at Craig's request. Although monthly meetings between the new commit- tee and management were previously agreed upon, no such meetings were held. In February 1984, Craig was on vacation when the dispatcher called him and said he had to come in for a driver meeting. Craig went in for the meeting along with 46 other drivers. Mayes and McKinney were also present. Mayes told the drivers that the Clear Lake run was up for bids and was highly competitive. Mayes said the daily rate of $85 had to be cut to $75 for the bid to be competitive. Mayes also said other companies, includ- ing Greyhound, were cutting their mileage rates for charters, and he wanted to reduce the charter rate to the August 1982 rate to remain competitive. Mayes asked the drivers to vote on a $10 cut on all metro runs and a mileage cut on all charters. The drivers voted as request- ed but turned down any decrease by a 24 to 23 vote. Within a few days, a notice was posted on the company board for a second mandatory driver meeting. About the same number of drivers attended with Mayes and McKinney present also. Mayes opened the meeting saying an even number of drivers had attended the first meeting, therefore, the result could not have been legiti- mate. Mayes said the drivers would vote again but this time only on the Clear Lake express run reduction. Before the voting started, Craig left the meeting but later learned that the drivers did vote for a pay cut on the ex- press run. Craig stated that although the Company never issued any writing concerning the continued viability of the 1983 driver committee, several weeks after its formation Mayes was in the dispatch office with Craig and Gonza- lez and said he did not want to even talk to Gonzalez. Mayes, at the same time, said he no longer recognized Craig or Gonzalez as members of the committee. Nelson Gonzalez testified he has worked for Respond- ent for 2 years as a driver on a metro run. Gonzalez was working at the time of the union election in January. In the first week of August, Gonzalez, after finishing his run at 9 a.m., was in Mayes' office. Mayes asked Gonzalez how he felt about taking part in an election for driver representatives. Gonzalez told him that the em- ployees did not need to elect anyone because the em- ployees already had their representatives. Mayes said he did not recognize the representatives that were elected at the union hall. Gonzalez told Mayes that any election now would be illegal. Mayes told Gonzalez that a new election would not be illegal and the reason he was not recognizing the representatives chosen at the union hall was due to only 15 to 16 drivers being present for the election at the hall. Mayes asked Gonzalez if the employ- ees could trust the Company. Gonzalez responded that the employees would only trust the Company if the Union came in. Gonzalez attended the mandatory driver meeting of August 16 where 35 to 40 drivers were present. Mayes opened the meeting by saying the meeting was for selec- tion of driver representatives to serve on a driver com- mittee. The employees could then go through the drivers committee to deal with management. Craig suggested to Mayes that the driver committee selected at the union hall function as the employees' only committee. Mayes stated that the election at the union hall was not fair in that the vote was taken among only 15 to 16 drivers. Mayes added that an election for a new driver commit- tee now was in accord with the driver contract of 1982 which called for a new committee each year. Gonzalez voiced his disapproval to Mayes by stating that a new election was completely illegal and asked Mayes since when did the Company honor the contract. Mayes told the group they were only there to talk about an election, nothing else. After a discussion, the drivers agreed to hold an election and Mayes and McKinney left the room. Nominations were made and ballots counted. Five drivers were selected as the committee. Don Craig, Gon- zalez, Roy Nowlin, Ralph Lane, and Jackie Kelly. Mayes said the drivers made good selections and they would be the go-betweens for management and the driv- ers. If any problems arose for drivers, the committeemen were the ones to talk to. The meeting adjourned and the new committeemen went into Mayes' office with Mayes and McKinney. The committee voiced complaints to Mayes and McKinney about the operation of the charter board and the inequities of drivers being charged with miss-outs. Mayes ended the meeting by saying he would check on the charter board and the miss-out situations. Gonzalez stated that the new committee did not meet again with management. Analysis and Conclusions The General Counsel, in support of his alleged dis- criminatory refusal to grant a wage increase, included in the caption of this case the driver committee of 1982 as a party in interest and in paragraph 10 pleaded a schedule wage increase found in the 1982 contract executed by the driver committee of 1982. In paragraph 11, the Gen- eral Counsel alleged an August 1, 1983 request by the Teamsters to have the prior contract for wage increase implemented. Respondent's refusal to honor the Team- sters' request for the wage increase is the basis for the 8(a)(3) violation alleged. The General Counsel, on one hand, is arguing the via- bility of the 1982 contract and impliedly the continued existence of the driver committee of 1982. On the other hand, the General Counsel's contention apparently is the substitution of the 1982 driver committee by the Team- sters either as a result of the "RC" petition filed in No- vember 1982 or the result of the first election. In a dual representation atmosphere, particularly where one organization by voluntary recognition repre- sents a fragment of the unit of employees sought by a pe- titioning second organization, the Board allows the rep- resentative of the smaller unit to intervene in the certifi- TEXAS BUS LINES cation proceedings to protect its interest, and its con- tract. The smaller unit representative may intervene for all purposes and attempt to become the certified repre- sentative of the larger unit of employees by participating in the election. If limited intervention is all that is sought, the representatives' continued status and the via- bility of its contract is determined by the outcome of the certification election. Where the petitioning organization prevails in the election for the larger unit of employees, the intervenor's interest and contract ceases to exist. But for the failure of the driver committee to intervene in the election process, that would be the situation in the in- stant case. Here, however, the driver committee of 1982 failed to intervene in the Teamsters' representation hear- ing or the election subsequently scheduled. In my view, that failure spells the demise of the driver committee of 1982 and its contract. The Board has stated that an orga- nization's failure to act in furtherance of its recognition, including failure to appear at the representation hearing, is to be interpreted as either an abandonment of its repre- sentative status or a disclaimer that it represents the em- ployees in question. Josephine Furniture Co., 172 NLRB 404 (1968). I conclude and find that the driver committee of 1982 both abandoned its representative status and dis- claimed any interest in further representation of the limit- ed unit of driver employees. Thus, the contract executed in July 1982 ceased to be effective as terms and condi- tions of employment for Respondent's employees. More- over, any efficacy of the prior employee driver commit- tee was displaced by the same employees' support for and authorization to the Teamsters labor organization which culminated in a Board certification of the Team- sters as the exclusive representative of Respondent's em- ployees. The General Counsel cannot base an allegation of dis- crimination on a vitiated contract. In addition, the Team- sters has no standing, without more, to enforce a con- tract term for which it did not negotiate or which incep- tion preceded the Teamsters' formal raising of a question concerning representation. I do not view the wage term of the 1982 contract on a par with a past practice by a respondent's prior to a claim of representation by a labor organization for a respondent's virgin employees. Ac- cordingly, I conclude and find that Respondent has not unlawfully refused the Teamsters' request to implement a wage increase on August 1, 1983. 1 shall, therefore, dis- miss the alleged violations of Section 8(a)(3) of the Act. Further, I shall delete the "Driver Committee, a Party in Interest" from the caption of the case as procedurally unsupportable. The General Counsel's independent 8(a)(1) allegations derive from several conversations among Mayes and drivers in early August. A companion allegation of an 8(a)(2) violation stems from Mayes' followup conduct culminating in a mandatory meeting of all drivers on August 16. Although Mayes' testimony of the events are neither complete nor at times specific, he does not contradict the more specific testimony of the driver witnesses. Mayes denied specifically only the implied purpose of the driver committee of 1983 and any direction to the assembled drivers that they would vote for a new driver committee. 633 Mayes disavows that the 1983 driver committee was in- tended to deal with wages, hours, and working condi- tions. There are no facts in substantial dispute After con- sidering all the evidence, I am inclined to agree that the 1983 driver committee had no such purpose. In 1982, Mayes allowed the driver employees to form a committee to speak for the employees. Albiet Mayes and the committee executed a contract, there were little or no negotiations to arrive at the contract terms. As Craig and Gonzalez stated, Mayes never allowed any person to represent an employee nor did he honor the contract in toto. A perusal of the contract clearly shows that management rights were the basic theme. The com- mittee and the contract were nothing more than a con- venience to Mayes and Respondent. It is no small wonder that neither the driver committee of 1982 nor Respondent made any attempt to manifest the employees' prior representation or the contract as a bar to the repre- sentatives status sought by the Teamsters. Promptly, after the Teamsters won the election, Re- spondent filed objections to the conduct of the election based on voter improprieties. The Teamsters j ust as promptly sent Mayes the names of employees selected as stewards at the union hall. The stewards were now the employee committee that Mayes would have to deal with. Respondent continued its objection to the employ- ee's election of the Teamsters to represent them by ap- pealing the Regional Director's adverse report on the ob- jections to the Board. While the appeal was pending, Re- spondent did not recognize the Teamsters as the repre- sentative of its employees. As Mayes stated, the Team- sters' certification was not final. Whether the certifica- tion was final or not, employees still had problems on the job. Mayes choose to alleviate those problems by sug- gesting to employees that a new driver committee was in order. Without regard for whether several employees had initiated Mayes' interest in a new driver committee it was Mayes who asked employees what they thought of the idea and who was undaunted when several employ- ees responded that the Teamsters' stewards were the new employee committee. Mayes openly solicited driver employees to disaffiliate with the Teamsters and to assume the representation of employees as the 1982 driver committee had. Despite employee protestations, the employees elected a new driver committee. Mayes did indeed meet with the new committee and discussed various employee problems related to employ- ment. Mayes' actual intercourse with the committee on the single occasion shows clearly that the committee was meant to be no more than a mirror reflection of the prior committee. When it appeared convenient to Mayes, he discussed employee problems; when not, he did not. Al- though Mayes assumed the risk of dealing directly with employees at a time after the employees had elected a labor organization as their representative, he had no in- tention to replace the Teamsters with another exclusive representative. What Mayes sought was to interfere in the employees' free choice of a representative and to cause the employees to defect from the Teamsters. Mayes' interrogation and solicitation of drivers did indeed interfere with their exercise of Section 7 rights. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees singled out by Mayes were without re- course other than to do his bidding. Although Mayes was not sure the August 16 meeting of drivers was man- datory, his testimony clearly supports the assumption that it was and the credited testimony of Craig and Gon- zalez leaves little doubt. The meeting was devoted en- tirely to the implementation of Mayes' prior unlawful in- terrogation and solicitation. The employees voiced their objections to Mayes but ultimately elected a new driver committee. The record does not disclose how the driver committee and Mayes arrived at the agreement to meet monthly but Mayes' single veto of committeemen Craig and Gonzalez, voiced after initial discussions of employ- ee problems presented by the committee, suggests that Mayes did giveth and did taketh away. In any event, the new driver committee and its individual members, par- ticularly the more vocal, were short-lived as problem solvers. The General Counsel's allegations of violations of Sec- tion 8(a)(1) are clearly supported by the evidence. Mayes did not attempt to disguise his intent either on this record or in his contracts with the employees. He was bent on ridding himself of the Teamsters if he could. In his attempts, he overstepped the bounds of lawful inter- course with employees and violated the Act. Just as clearly, the General Counsel's allegations of violations of Section 8(a)(2) are not supported by the evi- dence. As stated previously, Mayes' single intent for the August meeting was to attempt to influence the driver employees to disaffiliate with the Teamsters and some- how withdraw the Teamsters' petition seeking certifica- tion. Mayes did not intend to bestow, nor did he bestow, representative status upon the driver committee elected at the meeting. Contrary to the General Counsel, I do not conclude that Mayes' mandate that an election be held when a QCR exists violates Section 8(a)(2), in and of itself. Not only was the recognition offered by Mayes merely verbal, it was also limited to grievance-type prob- lems not to include the substance of wages, hours, and working conditions. There is nothing in the record to show that Mayes intended anything more than business as usual, nor is there any evidence to suggest that busi- ness was not as usual. In addition, there is no evidence to show that the driver committee of 1983 functioned as an organization composed of participating members. There were no officers responsible for running an organization nor was there any stated policy or purpose either oral or written. In short, the driver committee does not meet the criteria necessary to establish it as a labor organization within the meaning of Section 2(5) of the Act, and I so find. Therefore, the General Counsel's allegation that Respondent violated Section 8(a)(2) by dominating and interfering or rendering unlawful support to a labor or- ganization is unsupportable in both law and fact and must be dismissed. The General Counsel's reliance on Bruckner Nursing Home, 262 NLRB 955 (1982), is mis- placed in that the instant case does not involve a rival union situation. Here, Respondent's vice is not a viola- tion of neutrality, but rather a disregard for, the status of an elected representative. CONCLUSIONS OF LAW 1, Respondent, by interrogating employees about, and encouraging the formation of, an employee committee at a time when the employees had an exclusive representa- tive, has violated Section 8(a)(1) of the Act. 2. Respondent, by soliciting employees to disaffiliate with their exclusive representative, has violated Section 8(a)(1) of the Act. 3. The General Counsel has not sustained his burden of proof for any other allegations in his complaint. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I find it necessary to order the Respondent to cease and desist and to take certain af- firmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]