ATC/Forsythe & Associates

National Labor Relations Board - Board Decisions

Mar 30, 2004

341 N.L.R.B. 501 (N.L.R.B. 2004)

ATC/FORSYTHE & ASSOCIATES 501
National Express Corp. d/b/a ATC/Forsythe & Asso-
ciates, Inc. and Lino (George) J. Lima and
Eugene McGiffin. Cases 28–CA–17291 and 28–
CA–17667
March 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 27, 2002, Administrative Law Judge James L.
Rose issued the attached decision. The Charging Parties
filed exceptions and a supporting brief. The Respondent
filed a motion to strike the Charging Parties’ exceptions.1
The Respondent’s answering brief was rejected as un-
timely.
The National Labor Relations Board has delegated 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, findings2 and conclusions and
to adopt the recommended Order.

1 The Respondent moved to strike the Charging Parties’ exceptions
in their entirety or, alternatively, to strike various portions of those
exceptions. We deny the Respondent’s motion to strike the Charging
Parties’ exceptions in their entirety, but we shall grant the motion to
strike the following portions of the exceptions:
(a) Portions that are not supported by record evidence: all but the
first four sentences of Exception 1; references in the third and fourth
sentences of Exception 2 to an alleged August 27, 2000 meeting be-
tween McGiffin and city officials; the Charging Parties’ appended
Exhs. 4 and 5; and allegations in the second through ninth sentences of
Exception 10 to an antiunion campaign by the Respondent.
(b) Portions that duplicate arguments made in the appended brief:
the argument in Exception 1 that the purpose of the December 12 meet-
ing was the Tempe Bus Operators Committee (TBOC) work stoppage;
the argument in Exception 1 that McGiffin did not intend to interfere
with the Respondent’s contracts at the December 12 meeting; the ar-
gument in Exception 5 that the December meeting was not aimed at
contractual interference; arguments in Exceptions 4, 6, and 7 concern-
ing the nature of Ward’s inquiries and whether cooperation was volun-
tary; and the argument in Exception 10 that the Respondent made anti-
union statements before the election.
(c) Portions that go beyond the General Counsel’s theory of the case:
the argument in Exception 1 that McGiffin’s question to O’Connor was
framed in the past tense; the argument in Exception 3 that McGiffin
failed to cooperate because he “had no part in the things alleged;” the
argument, implicit in the fifth sentence of Exception 3, that McGiffin
refused to answer Ward’s questions because Ward was inquiring about
protected TBOC activities; and the argument in Exception 9 that
McGiffin’s intentions were not stated on the TBOC flyer.
2 The Charging Parties implicitly excepted to some of the judge's
credibility findings. 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 Drywall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
For the reasons he states and as further explained, we
affirm the judge’s finding that neither George Lima nor
Eugene McGiffin was discharged in violation of the Act.
We also find that McGiffin was not illegally interrogated
by Mark Ward, the Respondent’s general manager.
BACKGROUND
The Respondent is a transit company under contract
with the City of Tempe, Arizona. In 2000, Amalgamated
Transit Workers Union, Local 1433 (the Union) began an
organizing campaign that culminated in its certification
as the exclusive representative of the Respondent’s unit
employees on January 11, 2001. Following negotiations,
the parties reached a collective-bargaining agreement on
January 20, 2002.
Charging Parties Lima and McGiffin were active and
open participants in the Union’s organizing campaign in
the summer and fall of 2000. On July 17, 2000, they
filed an unfair labor practice charge alleging that anti-
union statements were made during the campaign by
Reno Navarette, the Respondent’s regional vice presi-
dent. The charge was dismissed pursuant to a Board
settlement.
In June or July 2000, McGiffin, Lima, and two other
employees founded the Tempe Bus Operators Committee
(TBOC). Before and after the January 11 elections,
TBOC supported the Union. In August 2001, however,
after McGiffin was removed as a union steward and ne-
gotiator, TBOC became a dissident employees group. As
discussed below, on March 27, 2001, the Respondent
discharged Lima, and on January 4, 2002, McGiffin was
discharged. The complaint in this case alleges that both
Lima and McGiffin were discharged in violation of Sec-
tion 8(a)(1), (3), and (4). The judge recommended dis-
missal of the allegations. Only the Charging Parties have
filed exceptions.
1. The discharge of Lima
On March 22, 2001, the bus that Lima was driving was
involved in an incident with a tow truck. The truckdriver
reported to his employer that the bus hit the truck, and
the towing company reported the incident to the Respon-
dent. Later that afternoon, Lima met with Ron Jacobs,
the Respondent’s operations manager, who was investi-
gating the incident. After inspecting the bus, examining
Lima’s Vehicle Inspection Report (VIR), and taking pic-
tures of the bus, Jacobs asked Lima why he didn’t report
the accident.3 Lima replied, “I didn’t hit the vehicle.” In
his report, Jacobs noted that the bus’ left side rear fender
was separated from the body by about three inches.
3 The VIR is a report filed at the beginning of a shift. The accident
happened later that day.
341 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502
Based on his investigation, Jacobs concluded that Lima
hit the tow truck.
That evening, when Lima finished his shift, he filled
out an accident report and took a drug test (which he
passed). Later that evening, Lima was told he was sus-
pended and to report to a March 27 meeting.
On March 27, Jacobs talked with Assistant General
Manager Marion Putnam about his investigation, includ-
ing his conclusion that Lima hit the tow truck. The same
day, Lima and his representative, McGiffin, met with
Putnam and her associate, John Philpot. After that meet-
ing, Putnam discharged Lima for failing to report an ac-
cident, in violation of company policy.
Also, on March 27, Lima was hired by ATC-Vancom,
Inc., another subdivision of the Respondent’s parent
company.4
The complaint alleges that Lima was discharged be-
cause he formed, joined, and assisted the Union, filed an
unfair labor practice charge against the Respondent, and
engaged in dissident union activities with TBOC. In
adopting the judge’s recommended dismissal of the
complaint allegations related to Lima’s discharge, we
agree that a preponderance of the evidence fails to show
the Respondent’s decision to discharge him was unlaw-
fully motivated. Under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the General Counsel has the initial
burden to prove that animus against an employee’s pro-
tected conduct was a substantial or motivating factor in a
decision to discharge the employee. The Charging Par-
ties contend that this “antiunion animus”5 can be inferred
from the circumstances surrounding Lima’s discharge.
We have examined each of their arguments and find no
compelling basis to infer from those circumstances that
Lima’s discharge was motivated by hostility to his pro-
tected conduct.
The Charging Parties first contend that neither Jacobs
nor Putnam “interviewed” Lima after March 22, as re-
quired by the Respondent’s policies. We reject the con-
tention. Initially, we note that Lima was discharged be-
cause he did not report the accident. By contrast, the

4 Member Schaumber does not rely on the fact that Lima was hired
by another subdivision of the Respondent’s parent company as evi-
dence of a lack of animus in the absence of evidence that the Respon-
dent was involved in some way in the hiring decision.
5 Member Schaumber questions whether the Board should continue
using the term “anti-union animus” and adopt in lieu thereof a term
such as “Section 7 animus.” The term “anti-union animus” is confus-
ing. The words in isolation and out of historical context can be con-
strued to mean opposition to antiunion activities. They can also be, and
sometimes are, construed to mean opposition to unionization. Opposi-
tion to unionization, however, is not unlawful. What is unlawful is an
employer’s active opposition to and animus toward the Sec. 7 activities
of its employees.
need to investigate or interview concerned the accident
itself. Further, even as to the accident itself, the Respon-
dent did inquire. The record reveals that Jacobs listened
to Lima’s version of the events of March 22, as did Put-
nam.6 Jacobs, whom the judge broadly credited, also
questioned the truckdriver and inspected the bus, as well
as Lima’s VIR form. The tow truck driver, whom the
judge found to be a credible witness, testified that Lima’s
bus hit his truck. Although Jacobs’ investigation may
have been less than ideal, there is no persuasive evidence
that any shortcomings in the investigation were moti-
vated by animus against the Union. Likewise, although
Jacobs’ conclusion that Lima was involved in an accident
may have been questionable (as the judge acknowl-
edged), there is no persuasive evidence that the conclu-
sion, or Putnam’s reliance on it, was tainted. That the
conclusion may have been incorrect does not establish an
unlawful motive, on this record. See Yuker Construc-
tion, 335 NLRB 1072, 1073 (2001).
We are also unpersuaded by the Charging Parties’
other arguments. Although Lima had not been disci-
plined before he was terminated (other than the suspen-
sion that immediately preceded his termination), his dis-
charge was consistent with the Respondent’s treatment of
other drivers who failed to report accidents. And the fact
that Lima was hired by another ATC subsidiary the very
day he was discharged undercuts the Charging Parties’
contention that he was singled out for especially harsh
treatment because of his protected conduct.
Nor does Putnam’s reliance on factors other than
Lima’s failure to report an accident indicate unlawful
motive. Given Jacobs’ investigative report concluding
that an accident had occurred, Putnam’s description of
Lima’s conduct on March 22 as “hit and run” and “leav-
ing the scene of an accident” was an apt characterization
of the facts as the Respondent believed them to be, and
not inconsistent with Lima’s failure to report the incident
with the tow truck. More to the point, Putnam testified
that Lima’s “not reporting the accident was my prime
concern—not the damage to the bus, not anybody else,
the fact that he did not report the accident is a violation
of policy.” Further, Putnam’s testimony is consistent
with Lima’s own affidavit, in which he states that his
failure to report was the reason given for his termination.
For the foregoing reasons, we affirm the judge’s find-
ing that Lima’s discharge was not unlawful.
6 The record does not reflect the difference between an “interview”
within the meaning of the Respondent’s rules and the questioning con-
ducted by Jacobs and Putnam.

ATC/FORSYTHE & ASSOCIATES 503
2. The interrogation and discharge of McGiffin
As set forth above, in August 2001, after McGiffin was
removed as a union steward and negotiator, the TBOC
became a dissident employee group. Thereafter, the
TBOC worked against what it claimed was collusion
between the Union and the Respondent.
In an effort to gain outside support and inform city of-
ficials about TBOC activities, McGiffin met with Tempe
city officials several times in the summer and fall of
2001. The December 12, 2001 meeting included the
mayor and city council members, O’Connor and Cahill.
At the meeting, McGiffin distributed copies of a flyer
announcing a proposed work stoppage. The flyer stated,
in relevant part:
AT A TBOC MEETING ON 12–10–2001, THE
MEMBERS VOTED UNANIMOUSLY TO TAKE ACTION TO
PROTECT AND FURTHER OUR OWN INTERESTS. THIS
ACTION WILL BEGIN WITH AN ORGANIZED WORK
STOPPAGE
THE TBOC STOP WORK MEETING IS A TOOL TO
ACHIEVE THE FOLLOWING ENDS. (EMPHASIS IN
ORIGINAL.)
1. TO SHOW OURSELVES AS AN ORGANIZED
ALTERNATIVE TO ATC TEMPE EITHER AS CITY
EMPLOYEES, OR AS AN ALTERNATE SERVICE
PROVIDER.7
2. TO PROVIDE PROTECTION FOR OUR MEMBERS
AGAINST COMPANY RETALIA-TION.
3. TO TAKE BACK OUR RIGHTS OF
REPRESENTATION FROM THE ATU.
McGiffin testified that he also asked Council Member
O’Connor if the council had ever “discussed whether or
not they had considered taking the service in-house” (i.e.,
whether the city government had ever considered hiring
bus drivers directly, and making them city employees,
rather than subcontracting their work to the Respondent).
The Respondent learned from city officials of McGif-
fin’s activities and sought to investigate. On January 2,
2002, McGiffin was called into a meeting with Mark
Ward, the Respondent’s general manager, and Charles
Perlman, a supervisor. Ward read McGiffin the contents
of a letter dated December 31, 2001, addressed to McGif-
fin, which stated in relevant part:
Please be advised we have reason to believe that
you have attempted to interfere with the contractual
relationship which ATC Forsythe enjoys with
Tempe, and furthermore have engaged in the dispar-
agement of ATC Forsythe and other unprotected ac-
tivities. Such action on your part is clearly grounds
for discipline, up to and including discharge. Ac-
cordingly, this is your opportunity to tell us your
side of the story with regards to such actions on your
part. Such statement, should you decide to tender it
to us, should consist of any and all facts, documents,
memos, letters, writings, recordings, or anything else
we feel we should consider before making a final
decision with regard to your employment status.
Obviously, in the event you fail and/or refuse to
provide me with a statement setting forth facts as
well as evidence in support of your position telling
your side of the story, I will be left with no choice
but to make a determination regarding your future
employment status based upon the facts and allega-
tions now before me.
McGiffin refused to respond to this request for infor-
mation and was suspended. Two days later McGiffin
again refused to give Ward the requested information,
and his suspension was converted to a discharge. The
credited testimony of Respondent’s general manager
Ward is that McGiffin’s refusal to cooperate with the
investigation was the only reason for his discharge.
The complaint alleges that McGiffin was discharged
because he formed, joined, and assisted the TBOC and
because he met with city officials on or about December
12, 2001, to discuss terms and conditions of employ-
ment. The judge recommended dismissal of the allega-
tions relating to McGiffin, finding a complete absence of
evidence of animus against McGiffin or TBOC.8
We agree that a preponderance of the evidence shows
that McGiffin was discharged because he refused to co-
operate with the Respondent’s investigation into his ac-
tivities that were not protected by Section 7 of the Act,
and not because he engaged in protected activities.
McGiffin testified that he included Item 1 in the TBOC
flyer with an intention to take business from the Respon-
dent. He also admitted that his question about “taking
the service in house” was prompted by Item 1’s prescrip-
tion that TBOC should present itself as an alternate ser-
vice provider to the Respondent. Because the object of
the flyer’s Item 1 (the question about “taking the service
in house”) and related discussions with the city council
members was, by McGiffin’s own admission, the even-
tual replacement of the Respondent by TBOC, McGif-
fin’s overture to contractual interference was unpro-
tected. See Kenai Helicopters, 235 NLRB 931, 936
(1978); Associated Advertising Specialists, Inc., 232
NLRB 50, 54 (1977).
Further, because McGiffin’s attempted contractual in-
terference was unprotected, he enjoyed no statutory right
to refuse to cooperate with the Respondent’s investiga-

8 McGiffin’s action in filing an unfair labor practice charge in 2000
preceded his discharge by 17 months.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
tion into his conduct. Accordingly, we affirm the judge’s
finding that the Respondent’s discharge of McGiffin, for
refusing to cooperate with the investigation, did not vio-
late the Act.
Nor do we find that the Respondent unlawfully inter-
rogated McGiffin. The first sentence of Ward’s letter
makes it clear that the Respondent was seeking to estab-
lish whether McGiffin was engaged in unprotected con-
tractual interference and disparagement. The remainder
of the letter merely seeks to gain information about those
matters. As the judge found, the Respondent’s inquiry
was aimed solely at McGiffin’s unprotected activities.
We therefore find (as the judge implicitly did) that this
investigation did not interfere with McGiffin’s Section 7
rights.
ORDER
The complaint is dismissed.

MEMBER LIEBMAN concurring.
After careful consideration of the Charging Parties’
exceptions, I concur in the dismissal of the complaint.
Based on the judge’s credibility determinations, I agree
that the General Counsel has not proved by a preponder-
ance of the evidence that the discharges of Lima and
McGiffin were unlawfully motivated.
While direct evidence of unlawful motivation is not
required in every case, and antiunion animus certainly
may be inferred from surrounding circumstances, I am
not persuaded that such an inference is warranted in
Lima’s case. Rather, persuasive to me are the facts that
Putnam testified that Lima’s failure to report the incident
was the reason for his discharge, that Lima’s affidavit
states that failure to report was the reason given for his
termination, and that Lima was hired the same day by a
related subsidiary of the Respondent.
As to McGiffin, the complaint alleged that he was dis-
charged because he formed, joined, and assisted the
TBOC and because he met with city officials on or about
December 12, 2001, to discuss terms and conditions of
employment. The credited testimony of Respondent’s
General Manager Ward is that McGiffin was discharged
because he refused to cooperate in an investigation of his
December 12 meeting with Tempe city officials.
To the extent that McGiffin’s activities at the Decem-
ber 12 meeting were unprotected, his discharge for refus-
ing to answer questions about that activity was certainly
lawful. However, the General Counsel did not argue that
McGiffin had a right to refuse to answer Ward’s ques-
tions about contractual interference because he could not
answer those questions without also revealing his pro-
tected TBOC activities. See Stoner Lumber, Inc., 187
NLRB 923, 930 (1971) (holding that employees have the
right to remain silent to protect the secrecy of their pro-
tected activities).
Accordingly, I concur in the dismissal of both the
Lima and McGiffin discharge cases.

Nathan Albright, Esq., for the General Counsel.
James N. Foster Jr. and Geoffrey M. Gilbert Jr. Esqs., of St.
Louis, Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Phoenix, Arizona, on April 8, 9, and 10,
2002, on the General Counsel’s consolidated complaint alleg-
ing that the Respondent unlawfully terminated the Charging
Parties in violation of Section 8(a)(1), (3), and (4) of the Na-
tional Labor Relations Act, 29 U.S.C. §151.1
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that the Charging
Parties were terminated for a cause.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom-
mended order.
I. JURISDICTION
The Respondent is a Delaware corporation with offices and a
place of business in Tempe, Arizona, where it is engaged in the
business of operating a public transportation system under con-
tract with, and on behalf of, the City of Tempe. During the
course and conduct of this business, the Respondent annually
derives gross revenues in excess of $250,000 and annually
purchases and receives directly from outside the State of Ari-
zona, goods, products, and materials valued in excess of
$50,000. I therefore conclude that the Respondent is an em-
ployer engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Notwithstanding that Local 1433, Amalgamated Transit
Workers Union, AFL–CIO (the Union) was certified as the
employees’ bargaining representative following a Board con-
ducted election, the Respondent denied that it is a labor organi-
zation within the meaning of the Act. Since the Union in fact
represents employees of the Respondent for purposes of collec-
tive bargaining, I conclude that it is a labor organization within
the meaning of Section 2(5) of the Act.

1 In other cases consolidated with the above-captioned the three in-
dividuals allegedly terminated unlawfully reached a settlement with the
Respondent and asked that withdrawal of their charges be approved. I
approved the withdrawal of the charges in Cases 28–CA–17117 and
28–CA–17366 and ordered that the complaint allegations based on
these charges be severed from the above-captioned cases and dis-
missed.

ATC/FORSYTHE & ASSOCIATES 505
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Although there had been an unsuccessful attempt to organize
the Respondent’s drivers in 1999, the events here arose out of a
campaign which began in June 2000 when certain employees
met with the Union’s president and other officers. There was a
representation petition, a hearing, and an election, which was
held on January 11, 2001. The Union was certified as the bar-
gaining representative for the Respondent’s approximately 200
unit employees. Thereafter, the Respondent and the Union
conducted collective-bargaining negotiations and a contract
was reached and ratified on January 20, 2002.
Paralleling this organizational effort, and apparently to facili-
tate it, some of the drivers also formed the Tempe Bus Opera-
tors Committee (TBOC). The principal leader of TBOC was
Eugene McGiffin. Lino (George) Lima testified that he also
was involved and on behalf of TBOC and met on three occa-
sions with members of management. It is unclear how many of
the bargaining unit employees were involved in TBOC.
After the Union’s certification, McGiffin was appointed a
shop steward and was a member of the negotiating committee;
however, sometime in the summer of 2001, he was relieved of
both duties, apparently in a dispute with union officers over the
course of negotiations for a collective-bargaining agreement.
Thus, McGiffin wrote a number of flyers directed to other
drivers criticizing the Union. Further, on behalf of TBOC he
met with Tempe city officials for the purpose of having the city
either hire the Respondent’s drivers as city employees or con-
tracting with TBOC and canceling its contract with the Re-
spondent. These meetings occurred in December 2001. When
questioned by management about what he was doing, McGiffin
commented that it was none of their business. On January 4,
2002, McGiffin was discharged for failure to cooperate with the
Respondent’s investigation into his activities on behalf of
TBOC vis-à-vis the City of Tempe.
On March 22, 2001, Lima was involved in an incident while
driving his assigned bus. As will be discussed in more detail
below, the driver of a tow truck claimed that Lima had cut in
front of him in such a way as to damage the tow truck’s right
front bumper and the left rear bumper of the bus. The tow
truck driver made this claim to Lima, who maintained there was
no contact, and to his company. Thus, the Respondent sent and
investigator to intercept Lima and the investigator concluded
that there had been an accident. On March 29 Lima was dis-
charged for failing to report the accident.
B. Analysis and Concluding Findings
1. The discharge of Lino (George) Lima
The General Counsel alleges that Lima was discharged in
violation of Section 8(a)(4) because he had filed a charge in
2000 relating to alleged threats a then supervisor had made to
employees. It is also alleged that Lima’s discharge was viola-
tive of Section 8(a)(3) because he was active on behalf of the
organizational campaign leading to the Union’s certification,
and finally, because he was active on behalf of TBOC.
Missing here are some of the usual factors tending to prove
that a discharge was unlawfully motivated. There is no evi-
dence of animus against the Union or those who were its prin-
cipal proponents. Indeed, the day after his discharge, Lima was
hired by another division of the Respondent. There is no indi-
cation that the Respondent engaged in unlawful activity during
the organizational campaign (or the one which resulted in no
certification of representative in 1999) other than one allegation
of a threat by a former supervisor in June of 2000. In a bar-
gaining unit of 2000, surely others as well as Lima were active
and were known to be so. There is no evidence of retaliation
against anyone other than Lima and McGiffin.2 Such activity
as Lima engaged in which the General Counsel alleges moti-
vated the Respondent to discharge him was, by the time of his
discharge, was fairly stale. The organizational campaign had
ended some months previously and the parties were in negotia-
tions. There is simply no evidence to suggest why the Respon-
dent would offer the incident of March 22 as a pretext to dis-
guise an unlawful motive in discharging Lima.
There is some evidence on which the Respondent could form
a good-faith belief that Lima was in fact involved in a minor
accident which he failed to report and there is a strong basis for
the Respondent’s policy that all accidents, however minor,
must be reported. Such insures early investigation and would
tend to limit the Respondent’s liability.
The tow truck driver is apparently disinterested in this pro-
ceeding, and he testified to the facts of accident as he reported
them to his management. The General Counsel offered no
reason why the tow truck operator would fabricate a story that
he had been cut off and hit by Lima’s bus. Further, the tow
truck operator appeared to be a credible witness.
Similarly, the Respondent’s investigator, John Jacobs, left
his employment with the Respondent under less than cordial
circumstances. Thus, he too must be considered disinterested.
He testified that his investigation revealed that in fact Lima had
run into the tow truck. While his investigation was not as de-
finitive as it might have been, there is no reason to conclude
that any omissions were in an attempt to cause discipline of a
union activist. Again, he appeared to be a credible witness.
Nevertheless, there are facts which tend to disprove that the
alleged accident was the reason Lima was discharged. First,
even if the incident occurred as testified to by the tow truck
driver, it was trivial. Beyond that, objective evidence tends to
support Lima that in fact there was no contact between the bus
and the tow truck.
Jacobs testified that he looked at the vehicle inspection re-
port on the bus and noted that there was no indication of prior
damage to the bumper. But Lima testified that he filled out a
vehicle inspection report prior to taking the bus for his shift and
noted on it that there was minor damage to the bumper. That
report is missing and no one seems able to explain why.3
Lima’s testimony is supported by a report in evidence which

2 As noted, there were three other alleged discharges which were set-
tled prior to the hearing. There is no evidence in the record concerning
the facts of these discharges.
3 I do not accept the Respondent’s assertion that it was destroyed in
normal course of business after 90 days and that such was Lima’s fault
for having waited 98 days to file a charge. Certainly the Respondent
would have been on notice that the discharge of Lima might well result
in litigation and the report might well be material evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 506
was written by another driver early in the morning of March 22.
This report notes the prior damage. Thus the objective evi-
dence supports Lima’s statement to the Respondent’s manage-
ment (and his testimony here) that there was no accident—that
damage to the bus tending to prove there was an accident, was
preexisting.
However, in concluding that there was an accident which
Lima failed to report, management chose not to believe Lima
and relied, apparently, on the report of an investigator who in
turn relied on a report from the tow truck operator. I find that
the investigator erred in concluding that there had been no prior
damage to the bus. Prior evidence of damage to the bus
bumper was critical in determining whether in fact there had
been contact between the bus and the tow truck. I believe that
Jacobs erred in concluding that there in fact had been an acci-
dent, however minor.
It may be the Respondent’s policy that drivers must report
accusations of accidents, even where none occurs, so that the
Respondent can properly defend itself. But such is not the
Respondent’s contention. The Respondent contends it dis-
charged Lima for having an accident he did not report, where a
reasonable investigation might well have demonstrated that
there was in fact no accident.
The question then is whether the Respondent’s managers
made a mistake, overreacted,1 or used the incident of March 22
to discharge unlawfully a known union activist. I conclude that
the evidence is insufficient to support a finding that the dis-
charge was unlawfully motivated. As noted above, there is no
evidence of animus against the Union, TBOC, or Lima. In fact,
the day after his discharge, Lima was hired by another division
of the Respondent, which tends to negate any kind of motive by
the Respondent to rid itself of Lima because of his union activ-
ity. Finally, the mere fact that one event follows another does
not in itself prove a causal connection between them. I simply
cannot conclude that there was a nexus between such union
activity as Lima may have engaged in (or filing a charge with
the Board) and his discharge.
Accordingly, I conclude that the General Counsel failed to
prove that Lima was suspended and discharged in violation of
Section 8(a)(1), (3), or (4) of the Act, and I shall recommend
that this allegation be dismissed.
2. The discharge of Eugene McGiffin
Eugene McGiffin was the principal leader of TBOC, and,
apparently, the Union’s successful organization of the Respon-
dent’s employees. McGiffin was made a steward and was on
the negotiating committee. As a steward, he represented Lima
during the investigatory interview leading to Lima’s discharge.
However, sometime in the summer of 2001, McGiffin be-
came disenchanted with the Union’s leadership (or vice versa
or both) and he was stripped of his positions. He then began
generating flyers on behalf of TBOC addressed to the Respon-
dent’s drivers stating his opinion that the Union was not ade-
quately representing employees in negotiations.
TBOC had a meeting on December 10, and, according to a
flyer drafted by McGiffin, unanimously voted to have a “stop

work meeting Sunday[,] January 6th.” McGiffin went on to
state:

THE TBOC STOP WORK MEETING IS A TOOL TO ACHIEVE
THE FOLLOWING ENDS.
(1) TO SHOW OURSELVES AS AN ORGANIZED
ALTERNATIVE TO ATC TEMPE EITHER AS CITY EMPLOYEES, OR
AS AN ALTERNATE SERVICE PROVIDER.
(2) TO PROVIDE PROTECTION FOR OUR MEMBERS
AGAINST COMPANY RETALIATION
(3) TO TAKE BACK OUR RIGHT OF REPRESENTATION FROM
THE ATU.

During December, McGiffin met with members of the
Tempe city council, though not in council session, to discuss
the possibility of the drivers either becoming city employees or
the TBOC obtaining the contract to provide bus service for the
city.
The Respondent learned of this activity and sought to inves-
tigate what McGiffin was doing. McGiffin, however, refused
to cooperate and, according to General Manager Mark Ward,
was discharged for this reason. McGiffin concurred that on
January 3, he was taken to a meeting with Ward during which
Ward asked about these events and McGiffin said he “had no
information to give” Ward. In a letter dated January 3, and
given to McGiffin on January 4, Ward stated that McGiffin said
that “business of The Tempe Bus Operators was none of your
(my) business.” The letter went on to recite that McGiffin was
then placed on suspension, and, on January 4 was discharged
since he failed and refused to cooperate in the Respondent’s
investigation.
The General Counsel argues that McGiffin’s refusal to coop-
erate in Ward’s investigation of his activity in contacting city
officials was necessarily bogus since Ward’s December 31,
2001 letter to McGiffin made his cooperation voluntary. Coun-
sel for the General Counsel reaches this conclusion from the
following emphasized language in the letter:

Accordingly, this is your opportunity to “tell us your side of
the story” with regard to such actions on your part (attempting
to interfere with the Respondent’s contract with the City of
Tempe). Such a statement, should you decide to tender it to
us . . . .

I reject this argument. The totality of the letter of December
31, the meeting between Ward and McGiffin on January 2,
2002, and Ward’s letter of January 3 make clear McGiffin’s
cooperation was not an option. Based on McGiffin’s memo,
the Respondent had substantial reason to believe that McGiffin
was attempting to interfere with its contractual relation with
Tempe. Such was a matter of serious concern.
The General Counsel argues that McGiffin’s activity on be-
half of TBOC was concerted and protected by the Act. There-
fore, the Respondent’s “investigation” of what McGiffin was
doing was not permissible, or at least, the Respondent could not
lawfully discharge McGiffin for refusing to answer questions
concerning this activity.
The Respondent maintains that attempting to interfere with
the Respondent’s contract with the city of Tempe was unpro-

ATC/FORSYTHE & ASSOCIATES 507
tected and it is this which the Respondent sought to investigate.
I agree.
I conclude that McGiffin’s activity in contacting the city of
Tempe suggesting that the city either hire the Respondent’s
drivers as city employees, or contract with TBOC was not ac-
tivity protected by the Act. This was not, as suggested by the
General Counsel, a mere attempt to seek outside help in resolv-
ing a labor dispute. There was no dispute between the Union
and the Respondent. The dispute was between McGiffin and
the Union.
In any event, McGiffin’s stated intention to have the city
cease doing business with the Respondent was a matter of sub-
stantial, and legitimate, concern to the Respondent. Notwith-
standing that employees act in concert, where they attempt to
become competitors of their employer, or attempt to undermine
their employer’s contractual relationship with another, their
activity is not protected. That is, such actions by employees
amount to disloyalty within the holding of NLRB v. Electrical
Workers Local 1229, 346 U.S. 464 (1953). See, e.g., Kenai
Helicopters, 235 NLRB 931 (1978) (discharge of an employee
for attempting to divert the company’s business to a competitor
lawful); Associated Advertising Specialists, Inc., 232 NLRB 50
(1977) (discharge of an employee for attempting to take from
company its best customer lawful). I therefore conclude that
the particular activity of McGiffin which Ward sought to inves-
tigate was outside the protection of Section 7. I conclude that
the suspension and discharge of McGiffin for refusing to coop-
erate was lawful.
Further, I conclude that McGiffin’s previous protected activ-
ity on behalf of the Union and in filing a charge along with
Lima in 2000 were not the motivating causes of his discharge.
As noted above, there is no evidence of general animus toward
the Union, TBOC, or any employees’ union or other concerted
activity. Further, McGiffin had made his dissatisfaction with
the Union was known for some months, yet there is no indica-
tion that such was a matter of concern to the Respondent. Only
when the Respondent learned that McGiffin had met with offi-
cials of the city did the Respondent seek to learn what was
going on
I therefore conclude that the General Counsel failed to prove
that McGiffin was suspended and discharged in violation of
Sections 8(a)(1), (3) or (4) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed in its entirety.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.