Airlines Parking, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1972

197 N.L.R.B. 762 (N.L.R.B. 1972)

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Airlines Parking, Inc. and Donald Lee Smith. Case
7-CA-9037
June 20, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 29, 1972, Trial Examiner Stanley N.
Ohlbaum issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions2 and to adopt his
recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Airlines Parking, Inc., Romu-
lus, Michigan, its officers, agents, successors, and
assigns , shall take the actions set forth in the Trial
Examiner's recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188
F.2d 362 (C A. 3) We have carefully examined the record and find no basis
for reversing his findings
We also reject as lacking in merit Respondent's contention that the Trial
Examiner was biased and prejudiced because he took official notice of and
read the Trial Examiner 's Decision in a prior unfair labor practice
proceeding against this Respondent which, he noted, was then pending with
the Board Airlines Parking, Inc, 196 NLRB No. 154 As the Trial
Examiner 's findings and conclusions here rest solely upon his evaluation of
the evidence presented in the instant case, we are unable to find, as
Respondent requests , that his references to an official public document
rendered him biased and prejudiced
2 The parties stipulated that the facts relating to the Board's jurisdiction
over the Respondent are the same as those adduced in the prior unfair labor
practice proceeding . Airline Parking, Inc, supra Accordingly, for the
reasons upon which we relied in asserting jurisdiction there , we assert
jurisdiction here
3 The Respondent contends that the Trial Examiner erred in making
certain corrections on the official transcript of hearing While it would have
been better had such corrections been made after submission to the parties,
we are unable to find that the changes made by him were prejudicial,
involving as they do primarily grammatical or parenthetical matters.
TRIAL EXAMINER'S DECISION
I. PRELIMINARY STATEMENT ; ISSUES
STANLEY N . OHLBAUM, Trial Examiner : This proceeding
under the National Labor Relations Act, as amended, 29
U.S.C. Sec . 151 et seq. ("Act"), based upon a complaint
issued by the Regional Director for Region 7 of the
National Labor Relations Board on November 12 upon a
charge filed on October 18, 1971,'was tried before me in
Detroit, Michigan , on January 24 and 26 , 1972, with all
parties participating throughout by counsel and afforded
full opportunity to adduce testimonial and documentary
proof, cross-examine, argue orally, propose findings and
conclusions , and submit briefs . The record made at the
trial, as well as a brief received from Respondent, on
February 25, 1972, and supplemental submissions by
stipulation relating to the preliminary issue of jurisdiction
to be described , received on March 8 , 1972, have been
carefully considered.
Respondent Employer is alleged to have violated Section
8(a)(4) and ( 1) of the Act by discharging its employee
Donald Lee Smith (Charging Party here ) on or about
October 4 because he testified as a witness at the behest of
General Counsel of the Board , during the trial in
September 1971, before Trial Examiner Henry L. Jalette of
other unfair labor practices proceedings (Cases
7-CA-8407[l], 7-CA-8563, and 7-RC-10321).2 Respon-
dent's denial of this allegation presents the issue for
determination here , in addition to the preliminary issue of
jurisdiction tendered by Respondent.
Upon the entire record ,3 and my observation of the
testimonial demeanor of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
II. PARTIES ; JURISDICTION
At all material times , Respondent Employer, Airlines
Parking, Inc., a Michigan corporation with principal office
and place of business in Romulus , Michigan , has there
I Unless otherwise specified , all dates herein are 1971.
2 These proceedings resulted in a decision (TXD-720-71, presently on
appeal to the Board) in certain respects adverse to Respondent
3 Trial transcript is corrected in respect to obvious and typographical
errors listed in Appendix A, which has been omitted from publication. The
transcript also contains numerous other errors of this type , correction of
which would be impracticable in view of their nature and extent.
197 NLRB No. 119
AIRLINES PARKING, INC. 763
engaged in the business of maintaining and operating
motor vehicle parking facilities, consisting of about 1,500
spaces at Detroit (Michigan) Metropolitan Airport, as well
as ancillary shuttle transportation facilities for airlines
passengers and other patrons.
Except for the foregoing facts, which it concedes,
Respondent in one form or another denies, or denies
knowledge or information sufficient to form a belief, as to
the remaining operative allegations of the complaint
concerning jurisdiction.
The present case apses directly out of a consolidated
unfair labor practices proceeding (Cases 7-CA-8407[I ],
7-CA-8563, 7-RC-10321, and 7-CA-8407[2]) tried before
Trial Examiner Henry L. Jalette, also in Detroit in
September 1971. In that proceeding, also involving the
same Respondent as here (Airlines Parking, Inc.), the
Charging Party here, Donald Lee Smith, testified as a
witness against Airlines Parking, Inc., his employer. He
was shortly thereafter discharged. It is the question of the
legality of that discharge, allegedly in consequence of his
testimony, which is in issue here.
In the earlier consolidated proceeding before Trial
Examiner Jalette, Respondent raised and litigated the
threshold question of jurisdiction. The question was
determined adversely to Respondent. The question is again
raised here. However, in order to permit its resolution
without undue relitigation, the parties have stipulated: (1)
that in Case 7-RC-10321-one of those before Trial
Examiner Jalette-Respondent Airlines Parking, Inc., had
likewise disputed jurisdiction; that the Board's Regional
Director there determined that jurisdiction existed; and
that the Board by its Order of March 1, 1971, upheld the
Regional Director's determination by denying Respon-
dent's application for review thereof; (2) that thereafter, in
the foregoing consolidated proceeding before Trial Exam-
iner Jalette (including, as has been indicated, Case
7-RC-10321), the issue of jurisdiction was again raised by
and determined adversely to Respondent (by written
decision of Trial Examiner Jalette, TXD-720-7 1, issued by
him on December 16, 1971, now on appeal to the Board);
and (3) that the present Trial Examiner, in the instant
proceeding, may officially notice the foregoing cases and
the evidence therein concerning jurisdiction and determine
that issue upon the basis thereof.4
Giving effect to the parties' stipulation, I have carefully
considered the described cases officially noticed and the
evidentiary matter which has been supplied. After so
4 The parties undertook to supply, for incorporation into the record here,
copies of the specific pages or portions of the September 13-16 record
bearing on that issue . That has been done and the material , received on
March 8, 1972, incorporated into the record here as TX Exhs. 1 (50 pages,
including forwarding letter of March 3, 1972, received from counsel for
General Counsel) and 2 (13 pages, including forwarding letter of March 6,
1972, received from counsel for Respondent).
5 While I recognize that Trial Examiner Jalette 's findings and determina-
tions are not necessarily conclusive upon me , nevertheless I agree with his
reasoning in reaching the same conclusion In so doing , I have among other
things noted that the Board's rejec tion of the request of Respondent Airlines
Parking, Inc., to review the determination of the Regional Director finding
jurisdiction , and its approval of that determination, are binding upon me
(Iowa Beef Packers, Inc., 144 NLRB 615, 616 and cases cited in fn. 2;
Insurance Agents' International Union, AFL-CIO (The Prudential Insurance
Company of America ), 119 NLRB 768, 773, Ranco, Inc, 109 NLRB 998,
1009-10, In. 8); that this entire matter was aired and litigated in the earlier
doing, I am in agreement with my brother, Jalette, and in
accord with the determination of the issue of jurisdiction
made by him in his Decision of December 16, 1971
(TXD-720-71), substantially for the reasons there explicat-
ed by him with succinctness and clarity .5
It is, accordingly, upon the basis of the record as a
whole, including the described stipulation and officially
noticed matters and evidence, found and concluded that at
all times here material Respondent Airlines Parking, Inc.,
has been and is an employer engaged in commerce and in
business activities affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that jurisdiction
is properly asserted here.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
As has been indicated, the central issue in this case is
whether Respondent's discharge on or about October 4,
1971, of its employee, busdriver Donald Lee Smith, was
because he had testified as a General Counsel witness at
the unfair labor practices cases before Trial Examiner
Jalette about 2 weeks prior to that.
In its operation of its Detroit Metropolitan Airport
parking business, Respondent, under its principals Wendell
Flynn (president) and his wife, Margaret Flynn (manager
of the business), does more than merely operate a large
parking lot. It also provides, maintains , and operates
shuttle transportation (consisting of airlines transport
buses) between its parking lot and the air terminal
buildings and hotels For this purpose, Respondent
employs busdrivers to make such runs . Until his discharge
on October 2, Donald Lee Smith was one of those
busdrivers.
Smith, a regular full-time busdriver for United Airlines
since 1948, entered Respondent's employ in September
1969, for supplementary earnings as a busdriver. He
continued in Respondent's employ for over 2 years,
without any recorded adverse job history, until summarily
discharged without notice, under circumstances to be
described, on October 2, 1971, about 2 weeks after he had
testified adversely to Respondent as a subpenaed witness
in Board unfair labor practices proceedings against
Respondent.
Smith had worked, first as a full-time and later as a part-
time 7 busdnver, for Respondent for 2 years before he was
called by General Counsel to testify as a Government
proceedings before Trial Examiner Jalette ; that the unfair labor practices
here involved grow directly out of the earlier proceedings before Trial
Examiner Jalette, and that, upon careful consideration of the entire record
as made on this issue in the instant case, I am in accord with the findings
and conclusions of Trial Examiner Jalette, as well as with the reasons
explicated by him for those findings and conclusions
6 In the aforedescnbed earlier unfair labor practices proceeding, it was
determined that also a car rental business of Mr. and Mrs Flynn (American
International Rent-a-Car of Metro) comprises with Airlines Parking , Inc., a
single employer within the meaning of Sec. 2(2) of the Act. Testimony of
Respondent's witness, O'Hara (one of its former supervisors), in the instant
case indicates Respondent also provides charter bus services.
r Smith entered Respondent 's employ in September 1969 as a full-time
(i.e., 6 days per week) busdnver ; about a year later he became only a
weekend busdnver for Respondent , continuing in that capacity until
discharged a year later. Although Smith worked only Saturday and Sunday,
on the 6 : 30 a.m .-2:30 p.m. shift , he occasionally also worked on other days
(Continued)
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness against his employer, Respondent herein, in
September in unfair labor practices proceedings before
Trial Examiner Jalette. According to Smith, his 2-year
tenure, before he testified in those unfair labor practices
proceedings, had not been characterized by any job
difficulty or criticism of his job performance.
On September 13, in compliance with Board subpena,
Smith testified in unfair labor practices proceedings against
Respondent-his employer-in Detroit before Trial Exam-
iner Henry L. Jalette. Those proceedings-four consolidat-
ed cases-among other things involved allegations that
Respondent Airlines Parking, Inc., had engaged in an
assortment of violations of Section 8(a)(1), (3), and (5) of
the Act, including coercive interrogation of employees,
solicitation of employees to withdraw from the Union,
promises of wage increases and institution of other
economic benefits to wean employees away from the
Union, threats as to the futility of attempting to deal with
Respondent collectively, discharge of employees for
engaging in union activity, refusal to bargain with a union
representing a clear majority of employees, and interfering
with a Board-conducted election. In those proceedings, as
stated in Trial Examiner Jalette's Decision:
Employee Donald Smith testified that on or about
March 6, [Respondent Airlines Parking, Inc., principal]
Flynn spoke to him about the [N.L.R.B.] election to be
held on March 10. Flynn asked him if he was going to
vote and Smith said no because he would be away on
his vacation. He told Flynn it did not matter to him one
way or the other if they did get the Union in there, but
a union would be good. Flynn told Smith if the Union
got in, he would `close the God damn gates, or
something like that,' and Flynn said if Smith should
decide to vote he would like to have him vote for
Respondent. At some point in the conversation, Flynn
asked Smith if he had signed a union card and Smith
told him he had.
This testimony of Smith was substantially denied by Flynn
and formed part of the very first subject (unlawful
interrogation) dealt with by Trial Examiner Jalette in the
body of his Decision. In resolving this issue, Smith's
testimony was credited over that of Respondent's princi-
pal, Flynn, with Trial Examiner Jalette characterizing
Smith as an "honest witness," in contrast to Flynn, who
"did not impress me favorably." Of Flynn, the Decision
further states, in finding that his conduct as described by
Smith violated the Act:
His [i.e., Flynn's] course of conduct after the [Union's]
demand for recognition indicates a clear purpose to
thwart his employees in their attempt to exercise
if required in emergency Smith operated one of three buses on his shift,
these moved on cycle , one leaving for, after another arrived from, the
airport, terminal, with al third in the parking lot at all times
8 N L R. B. v Gissel Packing Company, 395 U S 575
9 Smith worked the 6 30 a m.-2 30 p .m shift.
10 O'Hara is Respondent's Saturday and Duitsman its Sunday supervi-
sor. Although , as will be shown, O'Hara testified as Respondent's witness,
Duitsman was unexplainedly not called by Respondent to testify.
11 At the hearing, Smith elaborated on this incident . On Sunday,
September 26-after he had testified before Trial Examiner Jalette in the
previous unfair labor practices case-there were only two buses in
operation , with Yardman Duitsman repairing the third Smith , whose shift
starts at 6.30 a in., normally has lunch from 9 30-10 a.m. On this occasion,
Section 7 rights, and nothing in his demeanor at the
hearing suggested that he would hesitate to make the
threat attributed to him by Smith.
The decision of Trial Examiner Jalette is highly adverse to
Respondent, finding it guilty of serious violation of the Act
and, among other things, requiring it to bargain with the
Union under the circumstances, even though the Union
had lost the election-a strong, so-called Gissel8 remedy.
About a week after thus testifying, Smith remarked to
Respondent's principal, Flynn, while chauffeuring him that
patrons were complaining about ruts in the driveway and
inquired if it were due to be repaired. Flynn's unprovoked
reply to Smith was, "Do you think the Union will let me?"
This testimony by Smith was undisputed by Flynn, who
did not testify. Shortly thereafter, on Saturday (October 2),
Smith reported at 6:30 a.m. for work as usual.9 His
immediate supervisor, Saturday Yardman O'Hara, in-
structed him not to punch in until speaking to Mrs. Flynn
(Respondent's manager), who would be out of town that
weekend. Smith, who had driven in through a heavy fog,
returned home without working that weekend. Before
returning the following Saturday, on Thursday (i.e.,
October 7) Smith telephoned Mrs. Flynn and inquired of
her concerning the situation. Mrs. Flynn replied that Smith
did not "get along" with or follow the orders of Yardmen
(supervisors) O'Hara and Duitsman,10 did not make his
trips to and from the terminal on time, and had been
observed eating a sandwich on a bus. Smith attempted to
explain that he had had the sandwich because he had had
no lunch since he was not relieved by Duitsman as he
should have been.li Mrs. Flynn replied that she would let
Smith know "when work is available." He has never heard
from Flynn or Respondent since.
Respondent takes the position that it discharged Smith
for work derelictions. Its manager, Mrs. Flynn, and three
other witnesses testified in support of this contention,12
while more witnesses testified to the contrary.13
Mrs. Flynn-Respondent's active manager-testified
that basically there are three busdriver shifts with from
four to seven buses or vans operating around the clock
during the week; on weekends there are only three buses
(except for Sunday afternoon, when there are five),
operated by part-time help (including, formerly, Smith)
basically on a one-in and one-out (i.e., into Respondent's
parking lot and out to air terminal) and one-in-parking-lot
basis. Respondent's "yardman," supervisor, or dispatcher
on the "morning" (i.e., Smith's) shift on Saturdays is
O'Hara; on Sundays it is Duitsman. (Of these, as indicated,
only O'Hara testified. Neither Duitsman nor the Saturday
or Sunday "afternoon" shift supervisors, Cunningham-and
because Duitsman did not relieve him for that purpose , Smith had not yet
had lunch at 12:30 p.m. when , under the circumstances , he had a sandwich
on his bus, which had no passengers in it. Espying this, Duitsman remarked,
"You know you can get fired for that9" Smith replied that he knew
it-although such a "rule," as well as others, as will be shown, had never
been enforced and was universally honored in the breach -but that he had
not had any lunchtime . At this, Duitsman said nothing further and
thereafter nothing else was said about it until his October 7 telephone
conversation with Mrs. Flynn which has been described . Since Respondent
did not produce Duitsman to controvert this, Smith's testimony to this
effect stands uncontradicted and is credited.
12 Le, Mrs Flynn, O'Hara , Riddle , and Rooks.
13 1 e , Gardner, Johnson, Savage , Smith , and Stillwagon
AIRLINES PARKING, INC.
Dugan, testified.) Mrs. Flynn receives the reports of these
weekend supervisors on the following Monday morning.
The testimony of Mrs. Flynn and Respondent's other
witnesses indicates that the alleged work derelictions for
which it is claimed Smith was discharged consisted of
eating and drinking on his bus, failing to take runs in turn,
soliciting tips from passengers, and not following instruc-
tions and "cooperating." These will be severally consid-
ered.
There is no doubt that Respondent at some time in the
past maintained in its office on the parking lot some sort of
posted notification to its drivers not to eat, drink, or read
newspapers in their buses. Just when this notice was posted
and later concededly removed, as well as its precise wording
while posted, are in dispute and shrouded in uncertainty
and doubt. But there is no doubt, and I find, that this
"rule," if it was such and whatever it was, was honored in
the breach rather than in the observance and that for
practical purposes it was widely if not almost universally
ignored and was not strictly enforced. Mrs. Flynn herself
testified that these posted "rules of conduct" for drivers
became "yellow with age" and were removed in April or
May 1971 and were never replaced. Mrs. Flynn's own
recollection of the wording of the erstwhile "rules" is on
the hazy side, since , after first testifying that they had
stated, "no eating, drinking or reading of a newspaper on
the buses," she later altered her recollection to say that
while still certain it specified no eating it merely proscribed
coffee drinking. The other witnesses-on both sides of the
case-who testified concerning the notice were similarly
uncertain and vague, as well as in conflict, concerning its
precise terms. However, as I have said, there is no real
conflict that the notice was removed in the spring of 1971,14
and no credible conflict that lip service, at best, was paid to
them. Respondent's own witness, Riddle-another busdnv-
er-testified that the rules currently posted on Respon-
dent's bulletin board deal only with advance notification
concerning absences and that they are silent as to eating or
drinking on buses. For present purposes, however, it may
be assumed that up to April or May 1971, there was a
notice, latterly "yellow with age," on Respondent's bulletin
board, instructing its busdrivers to refrain from eating,
drinking, or reading newspapers on their buses-without
attempting to fathom its intent in such situations and
circumstances as prolonged parking in the lot without
passengers and off-duty periods such as lunchtimes; and
also without attempting to assess the consequences of its
removal in the spring of 1971 without replacement since
14 Notwithstanding the testimony , which I reject, of Respondent's
witness and retired supervisor , O'Hara-a somewhat confused gentleman
seemingly straining to be helpful to his former employer-that he is
"absolutely . . sure" he saw the rules still posted on the bulletin board in
September 1971 This testimony of O'Hara conflicts with even the testimony
of Mrs . Flynn , conceding that the - "yellow with age" notice had been
removed long before , in April or May 1971
is To be sure, several witnesses-notably Mrs. Flynn and busdriver
Rooks-spoke of staff meetings held by Respondent 's principal, Flynn
(Mrs. Flynn's husband), in which he allegedly continued to provide orally to
the busdnvers the same admonitions as had been contained in the removed
posted notice But the testimony on this was somewhat vague and in the
aggregate unconvincing . For example , Respondent's witness Rooks-anoth-
er busdnver-specified that such a meeting took place more than two years
ago" and that Smith was not present , and, after testifying, on direct
765
then, other than by a different posted notice omitting
mention of those subjects.15 But it is entirely clear that
such a requirement was widely ignored and never, except
for the discharge of Smith in October, formed a basis for
discharging any employee. Smith readily conceded that on
occasion he has had food or coffee on the bus while parked
without passengers; but he also swore that he was doing no
more than the other busdrivers (whom he identified by
name) were doing and had never (prior to the above-
described occasion with Duitsman when the latter failed to
relieve him for lunch on September 26, shortly after
Smith's testimony in the earlier unfair labor practices
proceeding) been questioned or criticized for so doing. In
this regard, Smith's testimony is solidly corroborated by
that of his former fellow busdrivers and employees
Gardner, Johnson, Savage, and Stillwagon-each of whom
testified with impressive and wholly unshaken credibility
that it was the general practice for busdrivers to have lunch
and coffee or soft drinks-indeed, in some cases, even such
items as pizza, chicken, and soup-in their buses, while
parked in the lot without passengers, to the knowledge of
Mrs. Flynn as well as the "yardman"-dispatcher-supervi-
sors, and that nobody (other than Smith) was ever
disciplined, much less discharged, for this. The testimony
of these witnesses was delivered with such impressive and
unshaken positiveness and detail, including names of
persons involved, that it is impossible for me not to credit
them, in preference to that of Respondent's witnesses Mrs.
Flynn, O'Hara, Riddle, and Rooks, to the extent that the
latter is or may be at odds.16 Finally, it is to be observed
that Mrs. Flynn-tenaciously tendentious a witness as she
demonstrated herself to be at times-conceded that
nobody other than Smith was ever discharged for eating,
dunking, or reading on a bus, and, after so conceding, she
asserted that Smith was discharged for other, additional
reasons.
Upon the basis of the record as a whole, I find that
Smith's occasional eating and drinking on his bus, while
empty of passengers as described, was in no way the reason
or a reason for his discharge from Respondent's employ-
ment.
We pass, then, to the next reason assigned by Respon-
dent for Smith's discharge-his alleged failure to make bus
runs as his turn came. At the outset it should be noted that
it is Respondent's practice to dispatch its buses from its
parking lot to the air terminal through its "yardmen" or
dispatcher-supervisors, whose job and responsibility this is.
Mrs. Flynn testified that she had received oral reports from
time to time that Smith was not taking his runs in turn, but
examination, to such meetings conducted regularly by her husband, when
confronted on cross-examination with testimony to the contrary by her
husband at the previous unfair labor practices proceeding before Trial
Examiner Jalette, Mrs. Flynn took refuge in the somewhat lame excuse that
she did not recall such testimony by her husband. Nor, under these
circumstances , did Flynn himself testify in the instant case . Atop this,
Rooks impressed me as a witness of low credibility, pitifully eager to
accommodate his employer.
16 1 say to the extent in view of such things as Mrs. Flynn's concession
that at least busdnver Rooks, still in Respondent 's employ, also drank
coffee on his bus; Rooks' admission that "all of us [busdnvers) have" eaten
on buses, without being fired or disciplined , and O'Hara 's concession that
he has observed various busdrivers, in addition to Smith, eating on their
buses without being disciplined.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she did nothing about it before he was summarily fired at
the beginning of October as described. The sources of these
alleged reports to Mrs. Flynn are said to have been the
yardmen or dispatcher-supervisors, O'Hara and Duitsman.
Unexplainedly, Duitsman-concededly still in Respon-
dent's employ-was not called to testify. O'Hara, now
retired, testified that Smith frequently did not leave on
time with his bus when it was his "turn" to go; according
to O'Hara, Smith was supposed to leave "whether he had
customers or not"; and-what evidently distressed O'Hara
particularly-O'Hara had the impression that when he
dispatched Smith to leave, Smith in doing so would "inch
out of the yard as slow as possible just to try and burn me
up." When Smith did not move out "in turn," O'Hara-ac-
cording to his testimony-ordered the next bus in line to
move out; and, if O'Hara is to be believed, he also got "a
young fellow there" (unidentified) to transport passengers
to the terminal in a station wagon.'? Cross-examination
elicited from O'Hara the admissions that Smith never left a
passenger waiting outside or inside a bus; that the
Company maintained no dispatch records of any kind;
that he has never seen or heard any other driver complain
to Smith about not going out "in turn"; and that he himself
(i.e., O'Hara) is "certain" that he never indicated to any
other employee that he (O'Hara) had any complaint about
or trouble with Smith.18 Busdrivers Riddle and Rooks,
testifying as Respondent's witnesses, bore out O'Hara's
testimony that Smith did not always move out "in turn."
According to Riddle (who worked with Smith on Saturdays
only), Smith did not move out in turn "a hundred percent
of the time," while, on the contrary, Smith would also pull
out ahead of Riddle when it was Riddle's turn to move out;
indeed, at the hearing, Riddle attempted the seemingly
impossible task of describing a situation, apparently
regarded by Riddle as highly irregular, where Smith pulled
out first when Riddle should have even though Smith was
first in line. Riddle conceded that it was O'Hara who
dispatched the runs, that when he left "out of turn" it was
on O'Hara's dispatch; that his complaints about Smith not
moving out in turn involved situations where O'Hara had
dispatched one or the other; and that O'Hara did indeed at
times wave out a "second" bus before a "first" bus.19
Busdriver Rooks (who worked with Smith generally on
Saturdays only) testified categorically that over a period of
8-10 months as "a constant thing" Smith took runs only
"when he wanted to . . . . If he didn't feel like going he
didn't go"-a statement which I cannot regard as other
than a gross exaggeration of a character with other
testimonial yield of this witness. Rooks conceded that
when he moved out "ahead" of Smith it was on O'Hara's
dispatch.
Smith absolutely denies failing to take a run or move out
"in turn," or not "in turn" if so required by his dispatcher,
O'Hara or Duitsman. It is apparent from the testimony of
17 Details as to the latter were not furnished It was also unexplained
why this should have been necessary, with a third bus always waiting with a
driver, in the lot
18 This is inconsistent with the testimony of Respondent 's witness,
Riddle , as recounted below.
19 Although the reasons for doing this were unexplored, many, having no
connection with dereliction on any driver's part, may readily be surmised
20 For example , Riddle would apparently have it that he observed Smith
busdnver Johnson (testifying as a General Counsel
witness , he swore that he never observed any irregularity of
Smith in meeting his schedules) as well as that of other
witnesses-on both sides-that the bus " runs" were not
wholly mechanical, so that an outgoing bus did not
necessarily leave as soon as an incoming bus arrived, and
that buses were not invariably dispatched strictly "in turn."
Resolution of the issue of whether or not Smith failed to
meet his schedules or take his runs "in turn" involves
essentially a choice of credibility among witnesses, since
Respondent presented no schedules or records and there is
no objective evidence to support either of the conflicting
positions. Upon the basis of comparative testimonial
demeanor observations as carefully scrutinized, I have no
hesitation in preferring the testimony of General Counsel's
side to that of Respondent. Smith, as well as other General
Counsel witnesses, impressed me very favorably as they
testified on the stand. Unfortunately, I cannot say the same
for those of Respondent. O'Hara, one of Respondent's
retired yardmen or dispatchers here involved, seemed
openly personally hostile toward Smith and somewhat
confused as to certain facts. He also contradicted the
testimony of other of Respondent' s witnesses . He also,
after first flatly swearing he had never discussed the subject
of his testimony with either of the Flynns-or their counsel,
attempted to hedge his way out of this clearly incredible
statement. Riddle, also demonstrating an emotional hostili-
ty toward Smith, was unsure of himself and unconvincing.
His evident animosity toward Smith, coupled with his
seeming desire to take every position as adverse as possible
to Smith,20 led him to testify that Yardman O'Hara had
told him as early as March 1971 that he (O'Hara) was
"having trouble" with Smith and would "have to get rid of
[him]" and fire him "some day"-statements that O'Hara
(also Respondent's witness) flatly denies. Rooks left an
indelible impression upon me of a servitor pitifully anxious
to accommodate his employer at any cost-even to the
extent of manufacturing additions to the posted (and later
removed) rules for busdrivers, other than those testified to
by any witness, including Mrs. Flynn herself, while later
forced to retreat on cross-examination and concede he was
unsure of what the rules were. As for Mrs. Flynn, she is not
only a principal in the case and thus directly interested, but
her testimonial performance demonstrated her to be an
evasive witness, truculent and even somewhat bellicose at
times (even pounding on the witness box until instructed to
desist), who to my observation appeared to be overblowing
and even inventing when it suited her purpose. As already
stated, Respondent's other yardman-dispatcher, Duitsman,
who might have contributed toward resolution of the
testimonial conflict, was unexplainedly kept off the witness
stand by Respondent . It is , furthermore, conceded that,
with only a single possible exception,21 no driver other
than Smith has been discharged or disciplined for this
alone of all drivers at any time eating anything on a bus
21 I e ., one Hudick. I say "possible" exception not only because of my
basic reservations with regard to Mrs Flynn as a witness in her own behalf,
but also because Respondent's yardman -dispatcher, Duitsman-who,
according to Mrs . Flynn, has knowledge of the facts-was not called to
testify, Mrs. Flynn's testimony on this subject is conclusory, wholly
uncorroborated, and in no reasonable way susceptible to extraneous
verification Respondent 's other yardman-dispatcher , O'Hara, denied any
AIRLINES PARKING, INC.
reason. While, it is true, this would not protect Smith from
discharge for that reason, I have great difficulty in
believing that if Smith's derelictions in this regard had been
nearly as great or prolonged as is now asserted, Respon-
dent would have tolerated him in its employ as long as it
did. Upon the total record here presented, I do not credit
Respondent's contention that it discharged Smith on
October 2 because he had not been meeting his scheduled
runs or because he was not taking them in turn. - -
Respondent's next alleged reason for discharging Smith
on October 2 was that he solicited tips from passengers. In
this regard, Respondent's instructions22 to its busdrivers
did not preclude the acceptance of tips from customers,
but merely the dunning or "toting" of customers for tips.
Smith absolutely denies soliciting a tip from a customer
and I believe him. The record fails to establish a single
specific, credible, or verifiable instance of such an incident,
let alone such a practice, on the part of Smith.23 I find that
Smith was not discharged by Respondent on October 2 for
this reason.
We move to the final reason advanced by Respondent
for discharging Smith on October 2; namely, that he was
not following instructions or "cooperating." Vague and
conclusory here at best, this contention revolves around
the core elements or subjects which have already been
discussed and considered-eating and drinking on the bus,
failure to take runs in turn, and soliciting tips-it being
contended by Respondent that Smith's failure to mend his
ways in these respects, particularly after being reminded to
do so, caused his discharge. I have, however, found that
these job derelictions either did not occur or that they were
not really job derelictions or at least not seriously so such
as ever to have resulted in discipline or substantial
discipline to any employee, much less discharge. On the
matter of whether Smith was ordered, or told, to mend his
ways, there is the usual conflict of testimony, with Mrs.
Flynn and O'Hara maintaining that Smith was warned
-orally, to be sure-and Smith stoutly denying it.24 On
balance, for reasons already explicated, my comparative
testimonial demeanor observations left me with a strong
tilt toward Smith, whose testimony in this regard I prefer
and accordingly credit. I find that Smith was not
discharged by Respondent on October 2 because of failure
to follow instructions or "cooperate."
B. Recapitulation and Rationale
In summary, then, there is presented a situation where an
employee of several years standing is, precipitately and
knowledge of any driver other than Smith being discharged for this reason
22 Oral, according to Mrs Flynn and Riddle; written, according to
Rooks alone of the witnesses
23 I reject the testimony of Respondent's witness Rooks-who even,
alone of all witnesses, at first indicated, but later appeared to retract, that
there was a posted written rule on this-that he has "seen " Smith soliciting
tips The difference between "accepting" a tip and " soliciting" a tip may be
difficult if not impossible to establish without being within earshot or at
least without adequate factual detail as to what is "observed" Rooks
-whom I have had occasion to characterize as an extremely accommoda-
tive witness toward Respondent-provided neither I similarly reject Mrs.
Flynn's testimonial production involving an unidentifiable alleged source of
information concerning tips, which Mrs Flynn conceded Smith disputed
and denied
767
without warning or advance notification, suddenly con-
fronted with discharge upon reporting to work as usual one
morning at 6:30 a.m. Later, seeking an explanation, he is
told that he had previously been guilty of miscellaneous
job derelictions or infractions-none of which, however,
had ever resulted in any disciplinary measure, much less
discharge, either to him or any other employee. One of
these-eating and/or drinking coffee or a soft dunk on an
unoccupied bus-was and is a practice regularly indulged
in by busdrivers, none of whom had been disciplined
therefor. Another alleged reason-not taking bus runs in
turn-has not been established to have occurred, nor if as
serious as now urged would it conceivably have been
tolerated as long as described. Still another-soliciting
tips-has likewise not been established. The final alleged
reason, basically involving the foregoing three and Respon-
dent's alleged warnings to the employee on these subjects
and his alleged "noncooperativeness," strenuously disput-
ed, is not credited. Concededly, other employees have not
been comparably disciplined for far more serious dere-
lictions, such as leaving a bus unattended (Rooks). What
has been omitted from this summary is the one intervening,
hard fact that did occur shortly before the employee was
discharged, and which in the total surrounding context
forms the only plausible linchpin for that action. This is,
that some 2 weeks-actually only 2 working days-before
his discharge, the employee, in obedience to Federal
subpena, had testified as a Government witness adversely
to his employer in unfair labor practice proceedings
resulting not only in the employee's testimony being
credited in preference to that of the employer's principal
(Flynn) but also in a decision and potential order strongly
adverse to the employer. The discharge of Smith on
October 2 completed the roster of the separation from
Respondent employer's employ (by discharge found to be
unlawful in the earlier unfair labor practice proceeding; or
otherwise, such as resignation) of all drivers who had
testified adversely to Respondent in the previous unfair
labor practice proceeding. I reject Mrs. Flynn's testimony
that the decision to discharge Smith was made some weeks
prior to his testifying in the earlier Board case but deferred
until after he testified.25
What emerges, then, as hard fact is a picture of a long-
term employee precipitately discharged after testifying
under subpena in a Board proceeding against his employer.
Smith's testimony in that proceeding, particularly within
the context of the high degree of union animus and
substantial unfair labor practices26 described and found in
Trial Examiner Jalette's Decision, seems ample to have
24 Smith's exchange with Duitsman-shortly after he had testified in the
previous Board proceedings and shortly before his discharge-involving the
incident of Smith 's late sandwich lunch on his parked bus when Duitsman
failed to relieve him for lunch because of an emergency, and Duitsman's
acceptance of that explanation , will be recalled. Smith further conceded that
Duitsman had on occasion-long before his discharge-remarked that he
was spending too much time in the office, but that Smith pointed out he
never missed a schedule and always left as soon as another bus arrived, an
explanation which was apparently satisfactory to Duitsman . As already
indicated, Duitsman was not called to testify
25 Although I reject this claim as sham, it may nevertheless bear the germ
of a certain truth, namely, that Smith would not have been discharged if he
had not testified adversely-i e., truthfully , as found-against Respondent.
26 antiunion bias and demonstrated unlawful hostility are proper
(Continued)
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provoked the Flynns to retaliation against him. My own
observations and impressions of Mrs. Flynn as she testified
at length in the instant proceeding (her husband did not
testify) not only did not dispel or weaken, but fortified
such a conclusion.27
The timing of Smith's discharge (N.L.R.B. v. Sequoyah
Mills, Inc, 409 F.2d 606 (C.A. 10); Tele-Trip Company v.
N.L.R.B., 340 F.2d 575, 579-580 (C.A. 4); N.L.R.B. v.
Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert.
denied, 355 U.S. 829) vis-a-vis his testimony as well as the
nature and effect of that testimony in the earlier Board
proceedings, the precipitate character of the discharge
(Tele-Trip, supra; N.L.R.B. v. Council Manufacturing Corpo-
ration, 334 F.2d 161, 164 (C.A. 8)), the absence of discharge
of other employees for similar reasons (N.LR.B. v. Nabors,
196 F.2d 272, 275-276 (C.A. 5), cert. denied, 344 U.S. 865),
and Respondent's implausible explanations for its action
(N.LR.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239,
245-246 (C.A. 8), cert. denied, 396 U.S. 823), in the context
of the record as a whole, persuade me that the reasons
advanced by Respondent for its discharge of Smith on
October 2, 1971, were and are pretextuous, and that the
real, compelling, and actual reason for that discharge was
Smith's testimony in the earlier Board proceedings. I so
find.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. At all material times, Airlines Parking, Inc., Respon-
dent herein, has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Jurisdiction is properly asserted in this proceeding.
3. On October 2, 1971, Respondent terminated the
employment of, and has since failed to rehire, reinstate, or
permit to work in his former or substantially equivalent
position, its employee Donald Lee Smith because he had
testified as a subpenaed witness on behalf of General
Counsel of the National Labor Relations Board, in Detroit,
Michigan, on or about September 13, 1971, before Trial
Examiner Henry L. Jalette, in National Labor Relations
Board proceedings against said Respondent, Airlines
Parking, Inc., consolidated . Cases 7-CA-8407(l),
7-CA-8563, 7-RC-10321, and 7-CA-8407(2).
4. In and by said discharge, Respondent discriminated
and is continuing to discriminate against said Donald Lee
Smith and employees for giving testimony under the Act,
constituting unfair labor practices in violation of Section
8(a)(4) of the Act.
5. In and by said discharge, Respondent interfered
with, restrained, and coerced, and is continuing to interfere
with, restrain, and coerce, Donald Lee Smith and employ-
ees in the exercise of rights guaranteed in Section 7,
and highly significant factors for Board evaluation in determining motive "
N L R B v Dan River Mills, Incorporated, 274 F.2d 381, 384 (C A 5).
27 In addition to what I have already said about Mrs. Flynn, she
impressed me as a strong -willed, determined , obdurate person resentful of
any attempted "outside interference" with her running her business as she
sees fit and who would brook no opposition or unquestioned "loyalty" to
her interests No personal reflection upon her is here intended, nor any
imputation that this necessarily reflects adversely upon her as an individual,
constituting unfair labor practices in violation of Section
8(a)(1) of the Act.
6. The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section 2(6)
and (7) of the Act.
IV. REMEDY
Remedying the unfair labor practices composing the
violations of Section 8(a)(4) and (1) which have been found
requires the usual cease-and-desist order and affirmative
relief customarily ordered in cases of this nature, involving
interference, restraint, and coercion, and unlawful dis-
charge and failure to reinstate . The recommended Order
will, accordingly, require Respondent, to cease and desist
from the unfair labor practices found; to expunge from its
records the reasons or bases herein alleged by Respondent
for the discharge of the unlawfully discharged employee;
and to offer said employee immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and to make him whole for any loss of earnings
he may have suffered in consequence of his unlawful
discharge, by payment to him of a sum of money equal to
that which he normally would have earned as wages from
the date of his discharge to the date of Respondent's offer
to reinstate him to his former or substantially equivalent
position, less his net earnings if any during such period,
backpay and interest to be computed in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. Respondent shall also be required to make available
necessary records for computation of backpay.
The Order shall also provide for the usual notice posting
and appropriate notification in case the discharged
employee is now in the Armed Forces of the United States.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended: 28
ORDER
It is hereby ordered that Airlines Parking, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
a. Discharging or threatening to discharge or otherwise
discipline any employee, or in any other manner discrimi-
nating against any employee in regard to the hire or tenure
of his employment or any term or condition of employ-
ment , because he gives testimony under the National
Labor Relations Act, as amended.
b. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of any
right guaranteed in Section 7 of said Act.
nor that she has less than a full right to entertain her own private views
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
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.
AIRLINES PARKING, INC.
2. Take the following affirmative actions which are
necessary to effectuate the policies of the Act:
a. Post at its Romulus, Michigan, parking lot copies of
the notice attached hereto marked "Appendix B." 29 Copies
of said notice, on forms provided by the Board's Regional
Director for Region 7 shall, after being signed by
Respondent's authorized representative, be posted by
Respondent in its said premises immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in conspicuous places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
to insure that said Notices are not altered, defaced, or
covered by any other material.
b. Offer to Donald Lee Smith immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered in conse-
quence of the discrimination against him, in the manner set
forth in the "Remedy" portion of the Decision of which
this Order forms a part. In the event that said employee is
presently serving in the Armed Forces of the United States,
immediately notify him of his right to full reinstatement,
upon application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
c. Expunge from its records all notations or statements
indicating or to the effect that the discharge of Donald Lee
Smith on October 2, 1971, was based upon or related to
any misconduct, impropriety, job dereliction or infraction
or shortcoming, or fault on his part or in connection with
his job or work performance.
d. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amounts of backpay due and
the extent of compliance with the terms of this Order.
e. Notify the Regional Director for Region 7, in
wasting, within 20 days from receipt of this Decision, what
steps have been taken to comply herewith.30
29 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the Notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
30 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Order, what steps have been taken to comply herewith."
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
769
present their evidence and arguments, the decision has
been announced that Airlines Parking, Inc., has violated
the National Labor Relations Act, and we have therefore
been ordered to post this notice and carry out what it says.
The National Labor Relations Act guarantees you,
among other things, the right to give testimony under the
Act free of reprisals. Accordingly, we hereby assure you:
WE WILL respect your right under the National
Labor Relations Act to testify before the National
Labor Relations Board.
WE WILL NOT discharge, threaten with discharge,
discipline, or otherwise retaliate against any employee
because he testifies before the National Labor Rela-
tions Board.
WE WILL NOT in any similar manner interfere with,
restrain, or coerce you in the exercise of any of your
rights under the National Labor Relations Act.
WE WILL offer Donald Lee Smith, who has been
found to have been discharged on October 2, 1971,
because he testified in a National Labor Relations
Board proceeding against us, immediate and full
reinstatement to his former job or a substantially
equivalent job, without prejudice to his seniority and
other rights and privileges, and will pay him backpay
plus interest for any wages lost by him, and we will also
eliminate from his record all statements that his
discharge was due to his fault or because of anything he
did.
AIRLINES PARKING, INC.
(Employer)
Dated By
(Representative) (Title)
If the above employee is serving in the Armed Forces of
the United States, we shall immediately notify him of his
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 500 Book Building, 1249
Washington Boulevard, Detroit, Michigan 48226. Tele-
phone 313-226-3200.
After a trial at which all sides had full opportunity to