Robert'S Tours & Transportation, Inc.

ROBERT'S TOURS Robert's Tours & Transportation, Inc. and David Speelman and Bella Gouveia. Cases 37-CA- 1889 and 37-CA-1918 26 February 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 11 January 1984 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and 'to adopt, the recommended Order. ORDER The NationalLabor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Robert's Tours & Transportation, Inc., Honolulu, Hawaii, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility 'resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Or. 1951) We have carefully examined the record and find no basis for reversing the findings. 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. Section 7 of the Act gives employees these 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 13 To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge, withhold driving as- signments from, or otherwise discriminate against our employees because of their activities protected by the Act. WE WILL NOT threaten employees with job loss or other adverse action should they engage in ac- tivities protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your rights under the Act. WE WILL offer to David Speelman immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges and We will make him whole for any loss of earnings or benefits suffered by reason of his unlawful discharge, with interest on lost earnings. WE WILL restore Bella Gouveia to her job duties as' they existed before we began unlawfully with- holding tour-bus assignments from her about Janu- ary 8, 1982; and We will make her whole for any loss of earnings (including tips) or benefits suffered by reason of that unlawful withholding, With inter- est on lost earnings. ROBERT'S TOURS & TRANSPORTA- TION, INC. Thomas W. Cestare, Esq., for the General Counsel, Jared H. Jossem, Esq., of Honolulu, Hawaii, for the Re- spondent. Isabella Gouveia, for herself. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Kahului, Maui, Hawaii, on March 1, 1983 . The charge in Case 37-CA-18139 was filed on April 12, 1982, and amended on July 20, by David Speel- man. The charge in Case 37-CA-1418 was filed on July 2, 1982, by Isabella Gouveia. The complaint issued on July 26, 1982, and alleges that Robert's Tours & Trans- portation, Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (Act) in each of these respects: i 1. Since November 1981, by promulgating and main- taining an impermissibly broad no-solicitation rule. 1 See 8(a)(1) makes it unlawful for an employer "to interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed in Section 7." Sec. 7 gives employees "the right to self-organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and ... also ... the right to refrain from any or all such activities ... " 283 NLRB No. 2 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. On January 7, 1982, by discharging Speelman and adversely changing Gouveia's terms and conditions of employment because of their engagement in activities protected by the Act. 3. On January 7 and 8, 1982, acting through Gerald Hayashi, an admitted supervisor and agent, by interrogat- ing employees concerning their engagement in protected activities and threatening them with discharge for same. II. JURISDICTION Respondent, incorporated in Hawaii, provides tour bus and other transportation services in that State. Its annual revenues exceed $500,000, of which over $50,000 derives from services for firms situated in other States and coun- tries. It is undisputed that Respondent is an employer en- gaged in and affecting commerce within Section 2(2), (6), and ('7) of the Act. IL BACKGROUND Respondent operates on five of the Hawaiian Islands- in order of business volume, Oahu, Kauai, Hawaii, Maui, and Molokai. Its overall manager is Robert Iwamoto Jr. (Robert), who is headquartered in Honolulu, Oahu. His son Scott is the nominal manager of the Maui operation, having been elevated to that position in late December 1981. Scott was 21 at the time of trial. "Overseeing ev- erything I did," Scott testified, was Gerald Hayashi, manager on the Island of Hawaii. Except for the allegedly unlawful no-solicitation rule, which has been of systemwide application, this case con- cerns Maui. III. THE ALLEGED MISCONDUCT A. The No-Solicitation Rule 1. Facts The parties stipulated that Respondent promulgated this rule on May 15, 1981: Solicitation : RHT drivers are prohibited from allow- ing themselves to be solicited while on duty, since any time thusly involved would be an unauthorized use of company time. Furthermore, it is prohibited for RHT drivers who are on duty to solicit other RHT drivers regardless of whether the latter are on-duty or off-duty. Failure to comply with the preceding will be regarded as cause for the compa- ny to take disciplinary action. Hayashi testified that the rule appears in a handbook of rules and regulations which, until the supply was ex- hausted, was given to each of Respondent's drivers. The rule was in effect "all during 1981 and 1982," he added, and "would still be the policy" had Respondent not "run out of those handbooks." Concerning the reasons for the rule, Hayashi testified: The company is afraid of the solicitation of drivers or the drivers soliciting other drivers or people in regards to keeping their attention to what they're supposed to be doing. And we didn't want our driv- ers selling or promoting puka shells or Kona liquor, or to be solicited by vendors or concessions that might offer them kickbacks or some {form of gratu- ity for stopping at these stops. Hayashi continued that, "in the past,"-there had been "specific problems with respect to [Respondent's] drivers in terms of soliciting or kickbacks or selling and buying things while drivers were on duty." He elaborated: In the 1974, 1972 to 1974 area, where puka shells were a big craze around the islands, the drivers would sell puka shells to Japanese tourists. Buy them cheap and sell them for a marked-up price. That created some difficulty with our company where the agents that brought these people in didn't want us soliciting them. So somehow our company had to cut it out. Hayashi further elaborated that "the type of solicitation that our drivers would be subject to" were "concessions that would solicit [them] and say, `If you- bring your people here, we'll give you $2 for each person that walks through our door."' Asked by Respondent's counsel if he knew of any instance in which the rule had "ever been applied to actions taken by people during their own time, including breaks and mealtime," Hayashi testified: "No." 2. Conclusion In Our Way, Inc., 268 NLRB 394 (1983), the Board an- nounced that rules against solicitation during "working time," as distinguished from "working hours," are pre- sumptively valid. So doing, it revived the distinction made in Essex International, 211 NLRB 749 (1974), over- ruling the case on which the General Counsel places principal reliance herein-TR. W. Bearings, 257 NLRB 442 (1981). It is concluded that a rule, such as Respondent's, against soliciting or being solicited while "on duty" is the functional equivalent of the presumptively valid one in Our Way against soliciting during working time.2 It is further concluded, therefore, there being no evidence to defeat the presumption,' that Respondent's rule does not violate Section 8(a)(1) as alleged. 2 The equivalency of while "on duty" and during "working time" is suggested by Medical Center of Beaver County, 266 NLRB 429 (1983) An issue in that case was the legality of a ban against the wearing of insignia "while on duty." The administrative law judge concluded that the ban was impermissibly broad because it failed to "contain a clear statement as to its nonapplication (1) during break periods, meal periods, and other similar periods, and (2) in nonpatient areas." Id. at 430. A three-member Board panel affirmed the administrative law judge's ultimate conclusion. Two of the three took the position, however, that the ban was overly broad only "because it does not apply solely to patient care areas," and that they "would find it valid in terms of time since it states that employ- ees are only restricted `while on duty."' Id. at 429 fn. 1. The two seem- ingly reached that position not by distinguishing between "on duty" and "working time," but in disagreement with T.R W. Bearings Ibid. ROBERT'S TOURS B. The Alleged Violations of January 7-8, 7982- 1. Evidence Speelman was a driver for Respondent from Septem- ber 1976 until discharged January 7, 1982. The discharge was effected by Hayashi, acting on Robert's orders. The morning of January 5-2 days before the dis- charge-Speelman's tour bus was involved in an acci- dent. It struck a branch overhanging a narrow road into Maui's Iao Valley. The -branch thrust through the wind- shield, necessitating that the tour be completed with a re- placement bus. No one was injured. Speelman testified that, the road being partially in shadow, he was unable to see the branch in time to stop before impact, although "going real slow;3 and that he was prevented from oth- erwise avoiding it by an oncoming vehicle. By his reck- oning, "the accident was unavoidable." Scott accompanied the replacement bus to the scene. Once there, he questioned Speelman about the accident and took some pictures. Speelman finished the tour. That afternoon, on Speelman's return to Respondent's "base" at the Kahului airport, Scott pressed him for "more details" about the accident; and the two of them returned to the accident site, taking with them Bobby (Wipa) Purdy, described by Scott as Respondent's fleet safety examiner- and driver trainer -on Maui.4 Scott took more pictures and assertedly concluded that there was "no reason why [the branch] should have been hit." That night, returning to the base from his last assign- ment for the day, Speelman had yet another encounter with Scott. Scott declared that the accident called for "some kind of disciplinary action," elaborating that Re- spondent was "trying, to clean, up" its Maui operation and that, this being his first such situation as Maui man- ager, his handling of it, "was going to set an example." Scott added that, should he let Speelman off "easy, then everybody . . . was going to take advantage of [him]." He continued that he did not "feel that just the accident alone was sufficient for . . . termination," and, noting that Speelman had only recently suffered a 1-week sus- pension because of a baggage oversight,5 asked him what he thought would be a "fair" penalty. Speehnan pro- posed a 2-week suspension. Scott responded, "Fine, you've got it." Scott appended that Speelman need not "worry about this accident"; that he would "talk to" his father, Robert, and they would "work it out."s ' During the same conversation, Scott asked that Speel- man name Respondent's best Maui drivers, of whom there were three working full time and seven or eight working part-time. Speelman offered that Gouveia` was "number one," and that Purdy conducted "fantastic tours." Scott responded that he was "going to get rid of Bella Gouveia the first ,time she calls Honolulu"-an -al- lusion to her sometimes enlisting the intervention of 3 Speelman estimated his speed as between 5 and 10 miles per hour. 4 Also going to the scene was one Herman Naole S As a consequence of neglecting to offload several pieces of luggage after driving a tour group from its hotel to the airport on October 31, 1981, Speelman was suspended from November 4 through 10. The sus- pension was administered by Scott's predecessor, Albert Fukutomi. 6 This rendition of the exchange between Scott and Speelman is ex- tracted from an amalgam of their essentially nonconflicting testimony. 15 Scott's father and- grandfather with regard to problems of employee concern on Maui;7 and that he was "going to fire" another driver, Kimo Gapero, "the first time" he complained about an assignment. Scott also chided Speelman for exaggerating the size of King Kamehameha and native Hawaiians in general in his tour narrations. Speelman denied exaggerating, arguing that the Hawai- ians "were large people" and that, with "`a Hawaiian-Ta- hitian mix, you've got a tall mix of people." The morning of the next day, January 6, Speelman made two visits to the base. On the first, he asked Scott for something in writing to reflect the suspension just meted out. Scott obliged with this memorandum: Memo To: David Speelman Date: January 06, 1982 From: Scott Iwamoto Subject: 2 Weeks Suspension Effective Wednesday, January 6, 1982 through Jan- uary 19, 1982. The reason for this,suspension is due to the accident you had involving the tree branch at lao Valley and your motorcoach. Also on January 6, Speelman testified, apparently during his first visit, he had a clandestine-"where nobody could see us"-conversation with Gouveia, ap- prising her, of Scott's intention to terminate her and Gapero. Gouveia's response, as related by Speelman, was, "We've got to go union for job protection."8 Leaving the base for a time, Speelman reported the ac- cident to the police and accompanied an officer to the scene; called on an office of, the Hawaii Department of Labor, where he complained about his suspension, and was told that -the Department was powerless to look into the matter; and went to the hall of the Longshoremen's Union, speaking to an official there about the suspension and how Respondent's drivers might obtain representa- tion.9 Back on the base later in the morning of January 6, Speelman broached his suspension to Gouveia in the drivers' lounge, then pursued the subject with her in her parked bus. They presently were joined in the bus by Purdy, Gapero, and Stanley, Sato, who runs Respond- ent's Japanese-language tours on Maui,"" Gouveia testi- fled that gatherings of 'this sort are "ark, everyday rou- tine-every morning we get into the bus and listen to the radio while we're, cooling off ourselves." But in this in- stance Speelman complained about his suspension, and there were complaints, as well, about dispatching proce- dures that were depriving the "oldtimers"' of assignments in favor of "the new drivers-, absorbed from a tour com- pany, that recently had gone out of business. Gouveia recalled Speelman's advocating, when the State Department of Labor declined to intervene con- 7 Speelman testified: "If we couldn't talk to management, we talked to [Gouveia] and she'd call'Honolulu [headquarters] and they'd come in for a meeting and hash it out, settle it out." 8 Gouveia did not address this conversation in her testimony. 9 Speelman's uncontradicted testimony that he engaged in these activi- ties is credited. 10 There is neither contention nor evidence that Sato is a statutory su- pervisor. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cerning his suspension, it was "about time" the drivers "see what the union can do for us." Gouveia recounted that Sato, hearing this, "stomped out of the bus" while proclaiming that the drivers and narrators did not "need a union." To like effect, Speelman testified that, Sato "walked out of the bus ... as soon a I said `union."' Speelman, however, assigned no parting rhetoric to Sato, averring that disapproval was apparent from "the way his face was."- , Speelman testified that with .the exception of Sato it was agreed during this gathering that the employees had "to go union . . . for job protection"; and that he should call Hayashi "to have an emergency . drivers' meeting ... to discuss what had happened to" him. Hayashi had told the Maui drivers, in a meeting at the time Scott became manager, that they were free to "contact" him concerning "problems" that could not be resolved local- ly. Gouveia testified, on the other hand, that those in the bus after Sato's departure agreed with Purdy's suggestion that, while the union was "a good idea," they "should give" Scott "another month ... [to] . . . see how dis- patching would be" before deciding "to do anything else"; and that she proposed to Speelman, after the gath- ering had broken up, that he call Hayashi to see if he "could help" with regard to the suspension. In the immediate aftermath of the gathering in the bus, Gouveia testified, she confronted Scott, telling him that she had been "on that road,.too, that morning"-i.e., the Iao Valley road, the morning of the accident and that she thought Speelman's suspension was "stiff," especially as he had been suspended shortly before. Scott coun- tered, according to Gouveia, "If my drivers think they're good drivers, they have to observe everything that's on the highway," whereupon she uttered Scott's name, as if in dismay, and broke off the conversation. Scott in es- sence denied that this conversation took place, testifying that Gouveia never spoke to him about Speelman's sus- pension. Whether pursuant to a consensus reached in the bus or to a subsequent suggestion from Gouveia, Speelman called Hayashi's office in Hawaii about noon on January 6. Hayashi's secretary answered, saying he was out,, and offering to take a message. Speelman assertedly left word that the Maui drivers felt the accident was not his fault and that they sought "an emergency drivers' meeting" with Hayashi to "discuss" the matter. Hayashi testified that his first knowledge of the accident and the suspen- sion came with receipt of the secretary's message. Scott testified that he tried, unsuccessfully, to reach Hayashi between the time of the accident and the next day's issuance of the suspension memorandum. Scott continued that, sometime after issuing the memorandum, he informed his father, by telephone, of the accident and the suspension. Scott avowedly , was "not sure" who initi- ated this call, nor "of the exact day" it was made. He ventured at one point that it was "the day after" the ac- cident; at another, that "it was either the day of or the day after"; and, at yet another, that "it was either one or two days after." Robert, less tentative, testified that Scott called him, "probably in the morning" of January 6, having been unable to "get ahold of" Robert on Janu- ary 5. Regarding the content, of his conversation with Robert, Scott testified that after he had related what had happened, Robert remarked that buses "are not supposed to be going so fast" in the area of the accident, and asked if any other tour drivers had been in the Tao Valley the day it happened. Scott replied, so he testified, that Nelson Waikiki of Grayline Tours had, prompting Robert to direct that he "contact" Waikiki "as soon as possible," ascertaining if he had seen the branch and was able to avoid it, and then "get back to" Robert. Robert's version of the conversation was, after Scott told him about the accident and the suspension, he said he wanted "more back-up information" to determine "if it was a true accident or . . . an avoidable accident," and instructed Scott to "check further,if there was any other tour companies _up in that area when the accident oc- curred or before Speelman had his accident." Robert concededly had in mind overriding the suspension with a "more extreme" sanction; and assertedly counseled Scott that, Speehnan having been with Respondent "for a number of years," it would be "unfair to jump to conclu- sions" and take that "kind of action [without] more back- up information. Following this conversation, Scott testified, he located Waikiki having lunch in Lahaina; was told that Waikiki had seen the branch and had gone "into the left lane not to hit it;11 and promptly called Robert-"I think it was from Lahaina"-to report that Waikiki "saw the tree and he didn't hit it." Robert's only response was an "okay," according to Scott, and the conversation was over.12 Robert 'testified that Scott did not report back until the morning of the next day, January 7, when he told Robert he had spoken with a driver for another company who had "avoided the branch." Robert testified that the morning of January 7, before Scott's return call, he'called Lora Warren, vice president of Grand Circle Travel Western (Grand Circle) in Long Beach, California. Grand Circle accounts for about 5 percent of Respondent's tour business in Maui.13 Warren previously had complained "about baggage mishaps" in- volving Speelman and Gouveia, according to Robert;14 and the purpose of this call, "prompted" by Scott's rev- elations about the accident, was to ask Warren "to re- confirm the complaint and put it in writing." 1 s"She told 11 Waikiki testified that he saw the tree "sticking out at least about two feet," and "had to go on the left side of the road to avoid the branches." "About two days after that incident," Waikiki added, later amending that "it was the same day," Scott asked him if he had seen the tree, and he said he had and "just avoid[ed] it and continue[d] on [the] tour." 12 Ostensibly seeking to impart plausibility to Robert's telephonic brev- ity, as depicted by Scott, Respondent's counsel asked Scott if Robert was "a busy man" and if his telephone conversations -often were "abrupt." Scott answered both questions in the affirmative. , ma Hayashi testified that Respondent had 60 to 65 tour groups on Maui in January 1982, of which three were from Grand Circle 14 The baggage oversight leading to Speelman's suspension in Novem- ber 1981 involved a Grand Circle group. Gouveia also had neglected to offload a bag involving Grand Circle about that time She paid $27 from her own pocket to enable the bag to catch up 'with its owner, on Molo- kai, the next day 15 Robert testified that although his call -to Warren was prompted by word of Speelman's accident, "sometime during that month I would have Continued ROBERT'S TOURS me," Robert stated in description of the call, "that she definitely did not want both of these drivers on any more of her tours," and he asked her "to put something in writing" to that effect. Explaining why he wanted something in writing, Robert admitted that he was "thinking in terms of discharge or at least the possibility of discharge." He expanded: [I]f I got any more back-up regarding [Speelman's] accident, I wanted things in writing, more definite things with, I guess, more proof for my discharging him if Scott came back with an answer like he did. Following this conversation, Robert dispatched this memorandum to the Maui base: I have just received a call from Grand Circle Travel (Laura [sic] Warren) who operates NRTA/AARP complaining about Speelman and Bella. The complaint is that, recently, these drivers have forgotten bags on their bus and in the past she complained to me about them [Speelman & Bella] compared to the other drivers on the rest of the is- lands. She has requested that they no longer be as- signed to her tours. Therefore, effective immediately, both of these driv- ers will not handle any Grand Circle tours. I will send you a copy of the complaint letter when I re- ceive it.16 After calling Warren and then receiving Scott's report the morning of January 7, Robert testified, he called Hayashi in Hawaii, directing that he go to Maui "as soon as possible, preferably that day, and terminate Speel- man." Robert explained, so he related, that Speelman had "had an accident a couple days before," that he "ap- parently . . . just ran into the branch and could have in- jured our passengers," that another driver had "avoided hitting the branch," and that "it was an accident that our driver could have avoided." Robert also adverted, as he recalled, to Speelman's November suspension over the baggage matter. ^ Hayashi replied, according to Robert, that he would go to Maui immediately, and mentioned in passing that he had just received a complaint call from Speelman that the latest suspension was "harsh and unfair" and that Speelman wanted a meeting about it.1 7 had to call her back . . . because she had already told me that she wanted an answer !from me as to what actions we were going to take to better our services on . . . Main." 16 Accommodating Robert's request for "something in writing," Warren sent'him a';letter, dated January 8, in which she stated- We are again receiving many, complaints about your drivers David Spellman [sic] and Bella on the island of Maui . I had spoken to you before about this matter and we had decided to wait until we re- ceived some more complaints. Which we have and I now feel that I must request that our groups do not get these drivers anymore, ef- fective immediately 'Thank you for your help in this matter and do hope my request doesn't cause you too many problems 17 Robert testified that Hayashi, although saying that Speelman wanted a meeting, did not ;say Speelman wanted a drivers' meeting. Hayashi testi- fied that the message relayed by his secretary was that Speelman wanted his suspension reconsidered, and that he knew nothing about Speelman's wanting a drivers' meeting 17 Hayashi's version of Robert's call' was that Robert cited "a combination of three factors" in support of the discharge decision-Respondent "had a problem in Maui and . . . [Robert] wanted to clean up the operation," Speelman "had a serious avoidable accident," and "the complaint letter from Grand Circle Tours." 18 Robert averred that he called on Hayashi to effect the discharge, rather than Scott, because of Scott's "age and inexperience ... [and] . . . to relieve him of the burden and, I guess, not having him be the bad guy." Hayashi admitted that he "thought it was pretty funny that Robert would be calling [him] a couple hours after [Hayashi's secretary had] received [the] call from Speel- man." Hayashi flew to Maui the afternoon of January 7. On arrival, he obtained Speelman's and Gouveia's personnel files and telephone numbers from Scott, then called Speelman, arranging for them to meet later in the day. Scott testified that his first knowledge of the impending discharge came when Hayashi told him he had been "sent" to "swing his ax" on Speelman and to talk to Gouveia about the matters raised in Robert's memoran- dum of the Warren telephone conversation. 19 Scott's im- mediate reaction to this disclosure, he testified, was to shake his head and walk away. Asked why he did this, Scott testified, "I felt like the bad guy, you know." Scott recalled that he shortly asked Hayashi, "How can you guys come over here, after I suspend somebody, and fire him?" Hayashi's answer, as related by Scott, was that "it was out of his hands." Hayashi and Speelman met in the late afternoon of January 7. As remembered 'by Speelman, Hayashi showed him the memorandum of Robert's conversation with Warren, along with a 1979 letter, never before seen by Speelman, attributing a baggage mixup to Speel- man.20 Speelman assertedly defended: "Well, what about my record? Where is all the over a hundred letters, com- plimentary letters that I had from tour groups, agents, people on the bus?"81 Whether Hayashi' acknowledged this query was not disclosed in Speelman's account. Speelman went on that Hayashi, citing the accident and Warren's reported request that he no longer be assigned to Grand Circle groups, declared, "We cannot work around you, and you are terminated this night." Speelman's version proceeded that, seeing Gouveia's name as well as his own in Robert's memorandum of the Warren conversation, he asked what was going to happen to her; and that Hayashi said she was to be dis- charged "tomorrow morning."22 Speelman also re- 8. 38 As earlier noted, the letter solicited from Warren was dated January is Scott to the contrary, Hayashi testified that his only purpose in going to Maw was to terminate Speelman. 20 This letter is not in evidence, nor is there any evidence of the al- leged underlying incident 21 Speelman testified that letters complimenting the drivers are posted in the drivers' lounge "for three or four days, then they take these letters down and they're supposed to put [them] in the driver's file " None is in evidence. 22 It will be remembered that Speelman testified, elsewhere, that Scott told him, January 5, that he intended to "get rid of" Gouveia the first time she called Honolulu Arguing in its brief that Speelman is generally Continued 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD marked, so he recounted: "[Y]our drivers are the ones who told me to call you up to have an emergency meet- ing. What about our meeting? Hayashi answered, per Speelman:- ' "You're not with Robert's anymore and you can't hold a meeting. There will be no meeting." Hayashi's account of the meeting was that he invited Speelman, "at the beginning," to tell him "about his situ- ation regarding the accident"; and that Speelman "raised some unhappiness toward the two weeks' suspension, feeling it was severe." Hayashi related that he then showed' Speelman a complaint letter and Robert's memo- randum of theWarren conversation, in addition citing "specific examples" of which he was aware of com- plaints about Speelman from Grand Circle ("in particular the statement about King Kamehameha's height and his weight"), after which he announced that Speelman had "no future with the company as a result of a complaint and of the accident." With that, Hayashi continued, Speelman raised the- prospect of causing a work stop- page-"the context was that he was going to have the drivers walk out." Hayashi denied that Speelman said anything' about' Hayashi's having a meeting with the drivers. The next day, January 8, Speelman returned to the base, "insisting," as Hayashi put it, "on a letter of termi- nation." Hayashi acceded, himself typing this letter: Dear' David, You have been employed with Roberts [sic] since Sept, 1976.,On 8/14/79 Maui office received a letter of complaint concerning handling of passengers and baggage by you at the airport on 8/14/79 at 0800. On 11/4/81, you were suspended 7 days for fail- ure to drop off, baggage on a Grand Circle group. At that time you were warned about further reper- cussion from the mainland agent that further dissi- plinary [sic] action will be taken; On 1/5/82 you had an accident involving a tree at lao Valley where the front windshield was hit and cracked, and luckily no one was injured. _ , On 1/7/82, Roberts [sic] Hawaii Honolulu office received a complaint from Grand Circle Travel, one of our most valued, accounts. The complaint was in regards to service rendered by David Speel- man on Maui. Mentioned was a specific incident in Oct. 1981, when bags were forgotten on a bus, and your inability to compare with the rest of the is- lands [sic] drivers. The complaint went on, and re- quested that we no longer use David on their tours. As a result of the above, inconvenience to our passengers and agents, willful disreguard [sic] for company equiptment [sic] and safety of passengers, and the problems created for 'scheduling, your em- unworthy of belief, Respondent notes that he answered "yes" when asked if Hayashis January 7 remark about Gouveia's 'imminent dismissal was "the ' first time that any management person told [hun] that Bella's job was in jeopardy." Respondent fails to mention Speelman's answer to the very next question-Whether Hayashi's remark was "the first time that any -management person told [him] that Bella was going to lose her job." (Emphasis added.) He not only answered in the negative, but men- tioned Scott's January 5 comment. ployment with Roberts [sic] Tours is terminated ef- fective Jan. 5, 1982. Regretfully, /s/ Gerald Hayashi It is undisputed that the second and fourth paragraphs of the letter refer to the same incident. On January 8, as well, Hayashi met with Gouveia, having called her the previous evening to request it. The meeting began, Gouveia testified, with Hayashi's asking if she knew why she had been called in. She answered in the negative, as she recalled, and Hayashi asked if she knew about Speelman's discharge. She assertedly replied that she did not, that she had "heard" only that he had been suspended. Hayashi rejoined, according to Gouveia, that Speelman had "wanted to call a drivers' meeting" and was terminated. Hayashi expanded, as told by Gou- veia: We don't call no meeting for no David Speelman, a special drivers' meeting. Do you know that Rob- ert's don't like to have union in the company? Do you know that was a threatening thing when David says that he will call the drivers together and do not move the equipment? Gouveia testified that Hayashi then "mentioned about" Speelman's accident and Robert's memorandum of the Warren conversation, with its reference to Gouveia, and stated that she "couldn't handle those groups anymore because of" Warren's request. Hayashi's version of ' his meeting with Gouveia was that he "made Bella aware that Speelman was terminat- ed, and . . . brought it to her attention that she had re- ceived a complaint similar to the complaint that David Speelman had received"-that she "was mentioned on the very same inter-office memo" from Robert. Hayashi professedly then asked why Warren did not want Gou- veia on Grand Circle tours and why Respondent was not "getting what [it] expect[ed] out of [its] senior drivers." Gouveia answered, Hayashi continued, that she was "trying her best," thought she was "doing a good job," "enjoyed her job," and "was willing to do: anything in terms of work to keep her job-to accept transfers, Japa- nese tours, whatever was available." Transfers are shut- tles between the airport and various hotels, as opposed to tours. Gouveia "understood," according to Hayashi, that she no longer would be assigned to Grand Circle groups. Hayashi testified that he could not remember mention- ing Speelman's "remarks about pulling out the drivers," and that he did not say "anything . . . that related to the union . . . [or] . . . regarding Robert's attitude toward unionization." Scott testified that he had a conversation with Gou- veia "a day or two" after Speelman's discharge in which she said she was "willing' to do anything"; that, citing "as an example" Grayline's use of "lady bus drivers" to drive transfers, she was willing to "come in early, and do I transfers." The parties stipulated that Gouveia's "opportunity for work in conducting tours was reduced" as of this time. ROBERT'S TOURS Gouveia testified that she since has been assigned no tours, instead being used solely as a transfer driver. This apparently has not affected her base pay, but, as she put it, "the difference is tip-wise." She has driven for Re- spondent since 1969. Robert testified that, because of Scott's report that others had avoided the branch, he "determined that [Speelman] willfully disregarded the safety of passen- gers" at the time of the accident. He added, "I probably feel [that Speelrnan] purposely put the lives of those pas- sengers in danger." Similarly, Hayashi professed to be- lieve, from "the speed of [Speelman's] bus" and from "the conditions that he described," that Speelman "had willful disregard for the safety of his passengers." Scott disagreed, testifying that, while the accident resulted from "the driver's negligence," Speelman dii1 not "pur- posely disregard the safety of the passengers." Scott fur- ther testified, echoing his comment to Speelman the evening of January 5, that he did not think the accident warranted discharge, and that he did not feel the 2-week suspension amounted to letting Speelman "off easy." Hayashi acknowledged that Respondent's drivers "do occasionally get involved in accidents." In fact, its Maui drivers had 19 accidents in 1982; counting Speelman's; and, except for Speelman, there is no evidence that dis- charge followed. In 1976 and again in 1978, Hayashi ter- minated drivers on Hawaii, in part because of their acci- dent records. The termination letter concerning the 1976 action cited three accidents in ' less than 1 month, plus two instances of insubordination,2 3 and that relating to the 1978 action referred to three accidents in a 4-month span, together with one complaint about tour quality. There is no evidence of other accident-related dis- charges, nor is there convincing evidence that Speelman was in other than the one accident.24 Robert testified that Respondent 's main problem on Maui around the time of the events in question was "cus- tomer complaints because of the quality of drivers. "I would guess we had about two or three complaints a week," he enlarged, "not only on Speelman, but a number of drivers." He continued that tour groups had lodged "a number of complaints" about Speelman, "about his service," but that he had no verifying docu- mentation. Hayashi averred that he "personally" had re- ceived "a lot of complaints about" Speelman, particular- izing that he had received two of "a verbal nature"; and that they "led us to believe" that Speelman's tour narra- tions betrayed a weakness in his knowledge of "Hawaiiana." Hayashi admittedly did nothing to docu- ment such complaints, nor did he mention them to Speel- man before the meeting in' which Speelman 's discharge was announced. Scott's testimony concerning complaints about Speelman was ambiguous, if not contradictory, it finally becoming evident that the only predischarge com- plaint of which he had heard was that leading to the sus- pension in November 1981. 22 A passenger suffered a broken collarbone in one of the accidents leading to the 1976 discharge. 24 Scott's testimony that he knew of Speelman's being in "a couple ac- cidents" before that on January 5 was devoid of particulars and unpersua- sive 19 Robert denied that he knew about "any union activity or interest" by Speelman, or that Speelman was seeking a drivers' meeting, before he made the discharge deci- sion. Hayashi and Scott made similar disclaimers. 2. Conclusions Speelman . It is concluded that Speelman's discharge violated Section 8(a)(1) as alleged. The bases for this conclusion are: 1. Speelman had driven for Respondent for over 4 years, which indicates that his overall performance was satisfactory. 2. The day before the discharge, and after Speelman had been suspended over the accident, he was the focal point of the gathering in the bus in which he and other employees discussed not only the suspension , but their anxieties about dispatching procedures and job security, and the feasibility of their consequently seeking union representation. 2 5 This plainly was protected activity, both because it dealt with matters of shared employee concern in the context of the workplace and because union representation was considered as a recourse. 3. Also discussed, either during the postsuspension gathering in the bus, orjust after between Speelman and Gouveia, was the desirability of a meeting with Hayashi, after which Speelman left word with Hayashi's office that the drivers felt the accident was not his fault and that a meeting was wanted.26 Speelman's call to the office likewise was protected , flowing as it did from the protected activity on the bus and because it sought a meeting with Hayashi about at least one matter of common employee concern-Respondent's treatment of him following the accident. 4. That Respondent somehow had learned about these protected activities and was motivated by them to dis- charge Speelman is indicated by: (a) Hayashi's testimony that he "thought it was pretty funny" that Robert would call him to take the action only "a couple hours after" Speelman's call to Hayashi's office, and (b) Hayashi's January 8 remarks to Gouveia; while telling her about the discharge, that Speelman had "wanted to call' a driv- ers' meeting," and that Respondent "don't like to have union in the company."27 5. That the accident was a pretext rather than a true reason for the' discharge is revealed, most graphically, by Respondent's already having imposed discipline-the 2- week suspension-for it. The testimony of management witnesses-Scott, Robert, and Hayashi--was unpersua- sive that Scott alone knew about the accident until after the suspension was handed out. It is altogether improb- able that Scott, little more than a cypher in the manage- ment of the Maui operation, would have dealt with such 25 Speelman and Gouveia are credited that the discussion in the bus embraced the named subjects. 26 Speelman is credited that this was the , substance of his message. Hayashi's secretary did not testify 2' Ha j,ashi's demals notwithstanding, Gouveia is credited that Hayashi made the remarks attributed to him. Gouveia had the more convincing demeanor 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a situation and taken such action independently. 28 More- over, Scott's testimony about the timing of his first postaccident conversation with Robert, while so laced with equivocation as to suggest historical revisionism, at one point allowed that it could have been "the day of" the accident; and Nelson Waikiki, supposedly inter- viewed by Scott after that first conversation, testified that the interview was "the same day" as the accident. 6. Other compelling indicia that the accident was a pretext are: (a) Robert's perceived need to dredge up other of Speelman's misfortunes, as witness his solicita- tion of Warren to submit a complaint against Speelman, the avowed purpose being to build a case in aid of Rob- ert's predisposition to terminate Speelman ,29 (b) the rank absurdity of Robert's professed belief that Speelman "purposely put the lives of those passengers in danger," and of Hayashi's stated opinion that Speelman "had will- ful, disregard for the safety of his passengers," (c) Scott's testimony that he did not think the accident warranted discharge and that, by imposing the 2-week suspension, he did not feel he was letting Speelman "off easy," and (d) Scott's reaction of shaking his head and walking away when he learned from Hayashi that discharge was forthcoming, and Hayashi's nonresponse that it was "out of his hands" when challenged by Scott how Speelman could be fired after already having been suspended for the, same offense,S° which betrayed the, visceral feeling of both that discharge was disproportionate to any acci- dent-related misconduct. 7. The accident as pretext is additionally shown by: (a) the considerable incidence, otherwise; of accidents in- volving Respondent's Maui drivers, without discharge resulting, (b) the absence of convincing evidence that Speelman was in other than the one accident, and (c) the fact that the only other accident-related discharges of which there is evidence were in response to circum- stances far more aggravated-three accidents in less than a month in one instance, and three accidents within 4 months in the other. 8. That the other reason prominently advanced for the discharge-Warren's complaint-likewise was pretex- tuous is revealed by: (a) Robert's having solicited it, ad- mittedly preparatory to discharging Speelman,31 (b) the speciousness of Hayashi's statement to Speelman, when effecting the discharge, that Respondent could ; not "work around" him in making assignments in view of Warren's request that he no longer be assigned to Grand Circle groups, when Grand Circle represented only about 5 percent of Respondent's Maui business, (c) Re- spondent's customary failure, apparently, to discharge or otherwise penalize its Maui drivers despite its receipt, as 211 Scott's being manager in name but not much more was demonstrat- ed by his admission that Hayashi oversaw "everything" he did, by Haya- shi's`bald invitation to the Maui drivers,'when Scott was named manager, to take their problems to him if they could not be settled locally, and by the cavalier circumvention of Scott to effect Speelman's discharge 29 Robert's self-serving testimony is not credited that he would have called Warren "sometime during that month" in any event. 30 Scott, not contradicted, is credited with respect to this exchange with Hayashi. 21 Robert having solicited Warren's complaint with a specific purpose in mind, an inference is in order that her subsequent letter was written as an accommodation and not from conviction. Robert testified, of two or three complaints a week against "a number of the drivers, and (d) the fact that the testimony of the management witnesses about com- plaints against Speelman; other than the one solicited from Warren, was so devoid of substantiating detail as to indicate testimonial bad faith. Gouveia. It is concluded that the denial to Gouveia of tour-group assignments, roughly coincident with Speel- man's discharge, also violated Section 8(a)(1) as alleged. This conclusion is grounded on these factors: 1. Gouveia had driven for Respondent since 1969-a powerful indication that her performance was generally acceptable. 2. She participated in the same January 6 protected ac- tivities in the bus as did Speelman, after and as a manifest outgrowth of which she confronted Scott about the harshness of Speelman's suspension.32 3. As earlier observed, Respondent revealed its knowl- edge of and hostility to the protected activities, in part, by Hayashi's January 8 remarks to Gouveia. 4. The inference is unavoidable that the action against Gouveia was prompted by the same improper motivation that underlay Speelman's discharge. Beyond coinciding in time with the discharge, its purported justification was the same complaint-soliciting call from Robert. Common motive is inferable, as well, from Hayashi's having gone to Maui for the express purpose, stated to Scott, of deal- ing with both Speelman and Gouveia;33 and from Haya- shi's prefacing his January 8 disclosure to Gouveia of her reduced status with a pointed discussion of Speelman's discharge, Speelman's having "wanted to call a drivers' meeting," and Respondent's not wanting "to have union in the company." The allegedly unlawful threats and interrogation. Credit- ing Gouveia, Hayashi asked her, on January 8, if she had heard about Speelman's discharge, and exclaimed, later in the same encounter: Do you know that Robert's don't like to have union in the company? Do you know that was a threaten- ing thing when David says that he will call the drivers together and do not move the equipment? The two comments just set forth, while in question form, obviously were designed less to interrogate than to impart information. Uttered in the context of Speelman's discharge, they necessarily conveyed the message that employees promoting union representation or a concert- ed work stoppage to protest conditions of employment would be placing themselves at risk of Speelman's fate. That the message was not lost on Gouveia is revealed by her ensuing verbal genuflections to Hayashi and to Scott that she was "willing to do anything" to keep her job. It is concluded that Hayashi, by thus threatening Gou- veia with regard to protected activity, violated Section 8(a)(1) substantially as alleged. 32 Gouveia, her demeanor more convincing than Scott's, is credited that this confrontation occurred and was as described by her 33 Scott is credited that Hayashi said he was on Maur for the dual pur- pose. ROBERT'S TOURS 21 CONCLUSIONS OF LAW Respondent violated Section 8(a)(1) of the Act, as found herein, by: 1. Discharging David Speelman on January 7, 1982. 2. Denying group-tour assignments to Bella Gouveia beginning about January 8, 1982. 3. Threatening Gouveia with job loss or other adverse action should she engage in certain activities protected by the Act. Respondent did not otherwise violate the Act as al- leged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 ORDER Respondent, Robert's Tours & Transportation, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, withholding driving assignments from, or otherwise discriminating against its employees because of their activities protected by the Act. (b) Threatening employees with job loss or other ad- verse action should they engage in activities protected by the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in their exercise of rights under the Act. 2. Take the affirmative action necessary to "effective the purposes of the Act. (a) Offer to David Speelman immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges ; and make 34 All outstanding motions mconsistent with this recommended Order are denied. In the event no exceptions are filed as provided in Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes him whole for any loss of earnings or benefits suffered by reason of his unlawful discharge, with interest on lost earnings.3s (b) Restore Bella Gouveia to her job duties as they ex- isted before we began unlawfully withholding tour-bus assignments from her on about January 8, 1982; and make her whole for any loss of earnings (including tips) or benefits suffered by reason of that unlawful withhold- ing, with interest on lost earnings.36 (c) Preserve and make available, on request, to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records nec- essary to analyze the amounts of backpay and benefits owing under the terms of this Order. (d) Post at its place of business on Maui, Hawaii, the attached notice marked "Appendix."37 Copies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees customari- ly are posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the allegation con- cluded to be without merit is dismissed. as Backpay shall be computed in accordance wish F. W. Woolworth Co, 90 NLRB 289 (1950) Interest shall be computed as prescribed in Florida Steel Corp; 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962) 88 See fn. 35, supra. _ 34 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 "