Atlantic Stages

National Labor Relations Board - Board Decisions

Jul 28, 1948

78 N.L.R.B. 553 (N.L.R.B. 1948)

In the Matter of J. A. BOOKER D/B/A ATLANTIC STAGES and INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, LOCAL No. 897 Case No. 10-C-1893.-Decided July 28, 1948 Mr. Charles M. Paschal, Jr., for the Board. Mr. R. M . Hitch, of Savannah , Ga., for the Respondent. Mr. R. C. Weigle, of Savannah , Ga., for the Teamsters. DECISION AND ORDER On February 25, 1947, Trial Examiner Earl S. Bellman issued his Intermediate Report in the above-entitled proceeding, finding that -the Respondent had engaged in and was engaging in certain unfair la- bor practices in violation of Section 8 (1), (3), and (5) of the Act 1 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in and was not engaging in certain other unfair labor practices as alleged in the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. On March 11, 1947, the Board granted the Respondent's request for a hearing before the Board in Washington, D. C., for the purpose ,of oral argument. On March 10, 1948, the Board reconsidered its action and rescinded its leave to present oral argument. At the same time the Board afforded the Respondent an opportunity to submit, if it desired, a supplemental brief or written argument setting forth the matter that would have been covered in the oral argument origi- nally requested. Thereafter, the Respondent submitted its supple- mental brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, -the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* 1The provisions of Section 8 (1), (3), and (5) of the National Labor Relations Act, which the Trial Examiner here found were violated, are continued in Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act , as amended by the Labor Management Relations Act, 1947 .Chairman Herzog and Members Reynolds and Murdock. 78 N. L. R. B., No. 70. 553 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the briefs filed by the Respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 1. The Trial Examiner found that Respondent Booker, in violation of Section 8 (1) of the Act, questioned Dispatcher Jones and Foreman Blitch concerning the Teamsters and, in the course of that interroga- tion, made certain anti-union statements. Jones and Blitch were supervisory employees and as such were part of management. There- fore, insofar as Booker's interrogation of these employees was limited to the number of drivers who had joined the Teamsters, the attitude of the garage employees with respect to affiliating with the Teamsters, or their own membership in that union, the interrogation was not violative of Section 8 (1).2 Nor do we believe that Booker's instruc- tions to Blitch "to let him know if he could find out anything concern- ing the matter" were actually instructions to engage in surveillance.-' In the absence of further evidence, we cannot assume that these in- structions implied a recourse to illegal means, if necessary, to obtain the requested information. Moreover, Blitch and Jones never reported to Booker any information concerning the organizational activities of their subordinates. We recently held that the mere giving of in- structions to a foreman to discriminate against union members and in particular to watch a union committeewoman, which were never car- ried out, could not be said to have interfered with employees in the exercise of the rights guaranteed in Section 7 of the Act 4 However, Booker's interrogation of Dispatcher Jones as to which meant more to him, his job or the Union, was violative of Section 8 (1) of the Act. Although Jones was a supervisor, he had a statutory right at that time to join or retain his membership in a union of rank-and- file employees. Any discrimination against Jones solely because of his membership in such organization would have been in violation of Sec- tion 8 (3) of the Act.' For the same reason any statement restraining 2 Matter o f Richmond Home Telephone, 70 N. L. R. B. 452 ; and Matter of Prigg Boat Works, 69 N. L. R B. 97, 115. Chairman- Herzog disagrees , and would find that such interrogation as to the union activities of employees constituted interference , restraint, and coercion within the meaning of Section 8 (1) of the Act. 3 Cf. Matter of Sohio Pipe Line Company, 75 N. L. R. B. 858. 4 Matter of Arnolt Motor Company, 68 N. L. R. B. 868 6Matter of Ctimaw Engeneerinq Company, 66 N L R R 1359: Matter of E. Anthony & Sons, Inc, 70 N. L. R B 717 enf'd June 1947, 163 F. (2d) 22 (App D. C.), and Matter of Wells, Inc., 68 N. L. R. B. 545 enf'd as mod. June 1947 , 162 F. (2d) 457 ( C. C. A. 9). ATLANTIC STAGES 555 or coercing him in the exercise of his right to join or retain member- ship in such organization constituted a violation of Section 8 (1) of the Act. Because Booker's question to Jones implied a threat of dis- charge if he did not resign from the Union, the statement was coercive. 2. We do not agree with the Trial Examiner's finding that Re- spondent Booker's profane characterization of the leaders of the Teamsters, addressed to employees Blackwell and Todd, as well as other statements in like vein, constituted a violation of Section 8 (1) of the Act. The statements although vilifying and disparaging the Teamsters were not coercive, as they contained neither a threat of reprisal or force nor a promise of benefit either on their face or when evaluated in the context in which they were uttered .1 3. We agree with the Trial Examiner that Blackwell's lay-off for 10 days was motivated by Booker's strong resentment against the Team- sters and his knowledge that Blackwell was a member of the Teamsters. However, we are unable to agree with the Trial Examiner's conclusion that Booker's discharge of Blackwell was also for discriminatory rea- sons. The discharge occurred during an encounter between Booker and Blackwell at the garage, to which Blackwell unexpectedly returned a few hours after he had been laid off. The meeting itself'was a pure coincidence. There was a bitter argument in the course of which Booker called Blackwell a liar and made insulting remarks about the Teamsters; Blackwell expressed his resentment and offered to fight; and one blow was actually struck. As the Trial Examiner observed, both men were excitable in temperament, and both were very angry on this occasion. At some point in the heated interchange, Booker dis- charged Blackwell, remarking, in effect, that he could no longer employ a man who would fight with him.8 We agree with the Trial Examiner's finding that Blackwell's "threat" or "offer" to fight Booker was provoked by Booker's own insulting behavior. The issue, however, is not whether Booker was ethically justified in discharging a man, who so resented his severe verbal abuse; the question is whether or not the real reason for the discharge was Booker's animus against the Teamsters. The Trial Examiner found, in effect, that Booker desired to discharge Blackwell for his suspected union leadership, and deliberately provoked Blackwell in order to create a pretext for terminating his employment. We think that this conclusion finds insufficient support in the evidence. It is undisputed that Booker did not expect Blackwell to appear at the garage when he e Matter of Bausch & Lomb Optical Company, 72 N. L. R. B. 132 'As Blackwell was first in his attempt to strike Booker, the fact that it was Booker who actually struck the only blow is of no significance. 8 This was the general purport of Booker's remark as reflected in the testimony of all the eyewitnesses. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did, and that it was Blackwell, during the chance encounter, who first suggested or proposed that the "argument" be settled by fighting. Under these circumstances we are not convinced that Booker finally • discharged Blackwell for discriminatory reasons. As we find that Blackwell's discharge was not in violation of the Act, he is not entitled to either reinstatement or back pay, for it does not appear that lie suffered any loss of pay as the result of his discrimi- natory lay-off a few hours before the discharge. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent J. A. Booker, an indi- vidual doing business as Atlantic Stages, and his agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to recognize and to bargain collectively with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Fed- eration of Labor, as the exclusive representative of all his drivers, ,exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and supervisors as defined in the Act, as amended, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, or in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, both affiliated with the American Federation of Labor, or in any other labor organization of his employees by demoting, laying off, discharging, or refusing to rein- state any of his employees or in any other manner discriminating in regard to their hire and tenure of employment, or any term or con- dition of their employment; (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, or Amalgamated Association of Street, Electric Rail- way and Motor Coach Employees of America, both affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- ATLANTIC STAGES 557 gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : . (a) Offer-Barney Waters, Thomas M. Smith, and Ned Jones im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole Barney Waters, Thomas M. Smith, and Ned Jones for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from the date of the discrimination to the date of the Respondent's reinstatement or offer of reinstatement, less his net earnings during said period; (c) Make whole C. W. Collins, C. B. Collins, Jr., C. L. Houston,, and L. D. Anderson for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from the date of his discriminatory lay-off to the date of his reinstatement by the Respond- ent, less his net earnings during said period ; (d) Upon request, bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Local No. 897, affiliated with the American Federation of Labor, as exclusive representative of all the Respondent's drivers, exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and supervisors as defined in the Act, as amended, with respect to grievances, rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agree- ment ; (e) Post at his offices and garage at Savannah, Georgia, copies of the notice attached hereto and marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; ° In the event that this Order Is enforced by a decree of a Circuit Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "A Decree of the United States Circuit Court of Appeals Enforcing " 558 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Tenth Region in writing, within ten '(10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Respondent discriminatorily terminated the employment of H. M. Blackwell, W. J. Ward, W. T. Flanders, Perry W. Gordon, Olin Todd, P. J. O'Neal, Emmett Phillips, Jr., C. B. Collins, Jr., and C. W. Collins, and discriminatorily laid off Ned Jones; be, and it hereby is, dis- missed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NOT in any manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 897, affiliated with the American Federation of Labor, or AMALGAMATED AssoCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection. - I WILL OFFER Barney Waters, Thomas M. Smith, and Ned Jones immediate and full reinstatement to their former or substantially -equivalent positions without prejudice to'any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of discrimination. I WILL BARGAIN collectively upon request with INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 897, affiliated with the American Federation of Labor, as the exclusive representative of all em- ployees in the bargaining unit described herein with respect to grievances, wages, rates of pay, hours of employment, or other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All of my employees who are drivers, exclusive of garage em- ployees, office employees, the dispatcher, the garage foreman, the ATLANTIC STAGES 559 agent, the traffic manager , and supervisors as defined in the Act as amended. All of my employees are free to become or remain members of the above-named organizations or any other labor organization. I will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. J. A. BOOKER, d/b/a ATLANTIC STAGES, Employer. Dated ---------------------- By ------------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Charles 31. Paschal, Jr., for the Board. Mr. R. H. Hitch, of Savannah, Ga, for Respondent. Mr. R. C. Weigle, of Savannah, Ga., for teamsters. STATEMENT OF THE CASE Upon an amended charge duly filed July 3, 1946,1 by International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Local No. -897, herein called teamsters, the National Labor Relations Board, herein called the Board, by its Acting Regional Director for the Tenth Region (Atlanta, ,Georgia ), issued its complaint, dated July 8, 1946, against J. A. Booker, an individual doing business as Atlantic Stages, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section :2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the amended charge, accompanied by notice .of hearing, were duly served upon Respondent and Teamsters. With respect to the unfair labor practices, the complaint alleged in substance that Respondent : (1) from on or about March 2, 1946, vilified, disparaged and .expressed disapproval of Teamsters ; interrogated its employees concerning their union affiliation ; and urged, persuaded, threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of Team- sters or any other labor organization; (2) on various dates from March 6, 1946, through June 17, 1946, demoted, laid off, and discharged various employees be- ^cause they joined and assisted Teamsters and engaged in concerted activities;' 1 The original charge was filed March 13, 1946. The complaint as issued alleged the demotion of one employee , lay-offs of three em- ployees , and discharges of seven employees At the beginning of the hearing , the complaint was amended to allege additional discharges of three employees and lay-offs of two. From time to time thereafter , the complaint was amended as to dates of alleged discriminations. As thus amended , the complaint alleged two types of discriminations as to three of the com- 560 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD (3) on or about May 31, 1946, discharged Thomas M. Smith because lie joined and assisted the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, herein called Amalgamated, and engaged in con- certed activities; (4) from on or about March 2, 1946, has refused to bargain collectively with Teamsters which at all times since February 28, 1046, has .been the duly designated representative of a majority of Respondent's employees in an appropriate unit; and (5) by each and all of the foregoing acts, has interfered with, restrained and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. On July 16, 1946, the Acting Regional Director received a letter dated July 15 on the stationery of Atlantic Stages and over the signature of J. A. Booker. This letter constitutes the only answer filed by Respondent 3 Said letter denied "all allegations" of the complaint and stated that "action taken with respect to individuals named" therein had no connection with their activities on behalf of labor organizations. - Pursuant to notice, a hearing was held at Savannah, Georgia, from July 29 to August 16, 1946, before Earl S Bellman, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and Respondent were represented by counsel and Teamsters by an official Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties At the opening of the hearing and upon several occasions thereafter, the complaint was amended' Near the close of the hearing and upon objection by the Board, ruling was reserved on the admission of six exhibits reoffered by Respondent. Said exhibits were reoffered at a time when the witness dining whose examination they were originally offered, but also withdrawn, was no longer available for exami nation. The record shows that when said exhibits were first offered, the Board made no objection, to their receipt. The undersigned hereby admits into evidence, as Respondent's exhibits 42, 43, 44, 45, 46, and 47, the said six exhibits now identified by said numbers At the close of the hearing, a motion by the Board to conform the, pleadings to the proof was granted without objection. The parties were afforded opportunity to . i gue orally before the undersigned and to file briefs Counsel for the Board and for Respondent argued orally on the record. A brief has been filed by Respondent. Upon the entire record in the case, and from his observation of the witnesses, the undersigned' makes the following : plainants and set out discriminations because of Teamsters against the following 13 empoyees on or about dates in 1946 as listed : Ned Jones___________________________ demoted March 6 and laid off April 7. H M Blackwell______________________ discharged March 9. Barney Waters_______________________ discharged March 25. C B Collins, Jr----------------------. laid off April 3 and discharged April 24. L D. Anderson_______________________ laid off April 3. C L Houston________________________ laid off April 6 W J Ward__________________________ discharged April 6. Emmett Phillips, Jr------------------- discharged April 8. Perry W Gordon--------------------- discharged April S. W. T. Flanders_______________________ discharged April 13. Olin Todd ----------------------------- discharged April 15. P. J. O'Neal-------------------------- discharged April 15. C W. Collins------------------------- laid off April 15 and discharged June 17. Counsel for Respondent was retained shortly before the hearing and did not file any further answer However, statements of position on specific matters were made from time to time during the course of the hearing. ' See footnote 2 above. ATLANTIC STAGES 561 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT ° Respondent , J. A. Booker , an individual doing business as Atlantic Stages,' is a common carrier engaged in the transportation of passengers and baggage by motor vehicles over established routes in the States of Georgia and Alabama? Approximately 3 percent of the passengers and baggage transported by Atlantic Stages either begin their journeys at points outside the State of Georgia on trans- portation facilities which connect with those of Respondent , or begin their your- neys on the facilities of Respondent and continue said journeys to, into, and through States other than the States of Georgia and Alabama, thus combining Respondent ' s facilities with connecting interstate transportation systems to com- plete their interstate journeys . Respondent operates under a license granted by the Interstate Commerce Commission e and is a member of National Trailways Association.' Respondent maintains its principal office, garage , and repair shop at Savannah, Georgia , and maintains terminal facilities at various points along its established routes . In conducting its business , Respondent continuously receives in interstate commerce from points outside of the State of Georgia, busses, motors , mechanical parts, and other necessary materials . During 1945, Respondent 's busses traveled 1,158,646 miles and its gross revenue was approximately $300,000. In the fall of 1945, Respondent substantially expanded its services . It increased its mileage approximately 40 percent , purchased 10 new busses.30 and hired several additional drivers Following its expansion , Respondent 's approximately 23 drivers covered 823,323 miles during the first 6 months of 1946.11 The undersigned finds that Respondent is engaged in commerce within the meaning of the Act" II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Local No. 897, herein referred to as Teamsters , and Amal- gamated Association of Street , Electric Railway and Motor Coach Employees of 5 The findings under this heading are made upon stipulated facts , undisputed testimony, and exhibits. I While Booker testified that he is cons idering changing from a sole proprietorship to a corporation and has had a corpo r ation, Atlantic Stages, Inc, "set up a year or so," lie also testified that pending approval by the Interstate Commerce Commission , herein called the I C C of , an applu'atLon which' has 'been " made up, ready to ask for it," no stock can be issued and cone of the assets of Atlantic Stages can be transteired • to said corporation witho t 1 C C approval 7Respondent 's first bus route, some 20 miles fiom Savannah to Savannah Beach, was si,ured in 19.31 fioni the Central of Georgia Railroad when that road was taking up its tracks between Savannah and Sa v annah Beach Respondent now operates five regularly scheduled routes, the longest of which, sonie 280 miles, is from Savannah , Georgia, to Eufaula Alabama Save for this route . Respondent 's routes are relatively short and lie entirely within the State of Georgia I Respondent has executed an agreement to purchase an additional bus line for approxi- mately $30 ,000 said agreement now tenig before the I C C toi approval Respondent s time table is issued under the name "Atlantic Trailways " and shows sev- eral daily connecting busses to Bmmnigham and Montgomery, Alabama 10 These had not all been received at the time of the hearing. "This constituted an increase of approximately a quarter of a million miles over what would have been covered had the mileage for the first half of 1946 been similar to that averaged during 194-, 1- Respondents answer denied "all allegations" of the complaint The Board ' s 7ui nsdie lion was not conceded at the hearing or in Respondent 's brief 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, herein referred to as Amalgamated, are labor organizations affiliated with the American Federation of Labor and admit to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES 11 A Chronology of events; interference, restraint awd coercion 1. The advent of Teamsters and Respondent's early reactions thereto, On February 27 and 28, 1946, Respondent's dispatcher, Ned Jones, and all of Respondent's drivers except one," W. H Polk, signed blanks applying for mem- bership in Teamsters which also designated Teamsters as collective bargaining agent." About 4 o'clock on Saturday afternoon, March 2, J. A. Booker, the owner and operator of Atlantic Stages, received a letter from Teamsters. This letter, which was dated March 2, 1946, and signed R. C. Weigle, Business Agent, read as follows : This is to advise you that the employees of your Company have designated this organization as their collective bargaining agency." 18 Unless otherwise specified, all dates in this section are in 1946 14 The drivers who signed included all of the complainants whose alleged discriminatory treatment pertains to Teamsters It should be noted that Thomas H Smith, whose. alleged discriminatory treatment pertains to Amalgamated, was not employed by Re- spondent until April. is It is evident from credited testimony of Barney Waters that he and H F Hilderbrand, two drivers, discussed and agreed upon the desirability of organizing as early as October 1945 and that the matter was discussed from time to time until it really seemed eiery- body wanted to get into" a union. From Jones' testimony it appears that the decision to- sign up with Teamsters was reached on February 26. In any event, Teamsters signed up all of the drivers except one within a 2-day period, February 27 and 28 While Respond- ent's pay roll for March 2, 1946, shows Jones as a driver and Polk as the dispatcher, the- evidence establishes that the reversal of positions did not take place until after the drivers- signed up with Teamstci s . is While the unit which Teamsters sought to represent was later clarified, it should be- noted that at the time the above letter was received, Respondent had a total of 45 employees- on its March 2 pay roll classified as follows 23 drivers, 11 garage employees, 7 office employees, 1 dispatcher, 1 garage foreman, 1 agent, and 1 traffic manager Signed applications of 24 of the employees whose names appear on the March 2 pay roll' are in evidence In addition to applications signed by 22 drivers and Dispatcher Jones, there is an application in evidence signed by H. W. Ayer, Jr, a garage employee who had' previously been a driver. Of the 24 applications in evidence, 19 bear the date February 27, 1946, and 4 the date of February 28, 1946. Credited testimony establishes that the 24th application, which is undated, was signed February 27. Thus it is clear that Teamsters represented a majority of all of the employees of Respondent when it claimed on March 2 to represent "the employees " Further, as appears more fully hereinafter, Jones, who was active in Teamsters, was not told by Booker that he had power to "hire and fire" until after J. H Jarrett, Jr , the operating manager who resigned, had vacated' the position on February 28. Thus, only the 4 applications dated February 28 could have been obtained after Jones was so informed, but there is no evidence that Jones secured any of these applications after he had been informed that his supervisory powers had been increased because of the resignation of his superior. From the record as a whole and especially from developments discussed below which followed Booker's learning that Jones was a member of Teamsters, the undersigned is satisfied and finds that Jones, in assisting in forming Teamsters, was acting in behalf of his own economic interests at a time when he had only limited supervisory authority; that his activities were clearly not attributable- to Respondent; and that Jones' activity on behalf of Teamsters does not, under all of the circumstances of this case, operate to invalidate any of the designations of Teamsters. Respondent does not contend and there is no evidence that any of its drivers designated' Teamsters because they believed that Jones' activity indicated that Respondent desired that, they join Teamsters Nor does the record as a whole indicate that Respondent's drivers- could reasonably have believed that Jones was acting for it in assisting.Teamsters. ATLANTIC STAGES 563 Please advise us at your very earliest convenience when we may meet with you for the purpose of negotiating a collective bargaining agreement between your Company and this organization. On Saturday afternoon, March 2, shortly after receiving the above letter, Booker called Jones into his office, and asked how many of the drivers had joined Teamsters. Jones replied that all had but one. Booker asked him which one had not joined and Jones told him that Polk had not. Booker also asked Jones, if he had joined and Jones acknowledged that lie had. During his questioning, Booker said, "I don't know whether I want a. union here, or not," and asked Jones which meant more to him, his "job or the Union "" Jones said that he was in no, position to answer that question. Booker then informed Jones that he would, think it over until Monday and call him back and let him know.18 About midnight on March 2, Booker asked one of the drivers, H. F. Hilderbrand,, what "this business about the Union was." Hilderbrand replied that he did not know and Booker said that he was not going to give up without a fight.19 On several occasions during a period of 2 or 3 days beginning about March 2, Booker questioned H. W. Ayer, Jr., a garage employee, about union matters. Booker asked Ayer if he had "signed up" for Teamsters, and Ayer answered_ that he had R0 Booker also asked Ayer if he knew who had started organizing for Teamsters. Ayer replied that he did not. Booker further asked if Ayer knew anything about whether the garage employees had joined Ayer said that no one had talked to the garage employees about joining. Upon one of the occasions when he questioned Ayer about Teamsters, Booker stated that if he knew who had started it he could kill him 21 On two occasions shortly after receiving Teamsters' letter of March 2, Booker questioned George Blitch about Teamsters.22 On the first occasion, Booker called; 17 At the hearing, Teamsters was usually referred to as the Union Hence where the term, "the Union" appears in quoted material, the reference is to Teamsters 18 The aboi a findings are made on credited testimony of Jones who impressed the.under-_ signed as a forthright witness. Booker, whose testimony in several ways was not convinc- ing, did not specifically deny this testimony of Jones Further, Booker's general denial that- he had ever made any statements against union activities in an effort to coerce his em-_ ployees was not persuasive 10 These findings are made upon credited testimony of Hilderbrand, who was still emploved-, by Respondent as a driver when called by the Board as a «itness, and who testified reluc-. tantly. Booker's specific denials of Hilderbrand's testimony are not credited. H-ilderbrand's . subsequent activities in securing signatures to withdrawals both from Teamsters and from Amalgamated and his activities thereafter in arranging for a meeting between the drivers and Booker are discussed below. 20 For a shot period Ayer had served as a driver but about the first of the, year he had become a student mechanic. 21 These findings are made upon testimony of Ayer, who impressed the undersigned as a truthful witness. Ayer voluntarily gave up his position with Respondent shortly after events discussed below, in connection with the discharge of Blackwell. He was employed elsewhere at the time of the hearing Booker did not specifically deny Ayer's testimony, or that of Blitch upon which subsequent findings herein are based. Booker explained, however, that he had discussed organizational efforts in the garage (also called the shop) with Ayer and Blitch after he had learned that the drivers were being organized, and that he had done, so because he wanted to know whether he was free to make some adjustments in pay in the shop. Booker's explanation of his motive, which would not constitute legal justification, of his action , even if believed, was unconvincing, especially in the light of his further testi- mony that he could not remember whether he had thereafter given the contemplated wage adjustments to shop employees "Blitch placed the first of these occasions approximately 5 or 6 weeks before his.employ- ment was terminated on April 8 and the second occasion 3 or 4 days after the first The undersigned finds from all the evidence that at the time Booker questioned him, Blitch, who, customarily kept the maintenance control records and served as stockroom; clerk, was tem._ porarily acting as working foreman in the garage 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •Blitch into his office and asked him if he knew anything about the drivers trying to form a union. Blitch said that he did not. Booker then asked if he'knew whether the "boys in the shop" were going to organize.' Blitch gain replied that he did not. On the second occasion, some 3 or 4 days later in the stockroom, Booker asked Blitch if he had learned anything about union organization of the employees. Blitch replied that he still had not learned anything. Booker asked Blitch to let him know if he could find out anything concerning the matter. During one of the conversations, Blitch told Booker that he had been a union man himself and was for organized labor. Blitch never reported any information concerning union organizational activities to Booker." During the period in which Booker, by questioning selected employees, was determining for himself the extent to which Teamsters had been successful in organizing his employees, 'he was refusing to see G. A Duncan, Commissioner of Conciliation, United States Conciliation Service. Duncan first offered his i^•ervices Sunday morning, March 3, and continued to make his services available throughout Friday, March 8 The effort which Duncan made to put the good offices of the Conciliation Service at Respondent's disposal were summarized by Duncan in the following letter. dated March 6, which Respondent chose to ig- nore : 24 I called at your cffice Sunday, March 3rd, 2: 30 P. M. to fill the appointment which you previously had made with me, and was informed by a gentleman there that you would not be able to see me, as you had left on other business. I called again the following day about 10 and 10: 45 A. M:, and' was advised by your secretary that you were not in. I returned about 30 minutes later and was advised that you were in conference and could not see me. During the early afternoon I phoned and was told that you were still in conference and could not talk to me over the phone. I advised your secretary that I would be in my room at The Savannah Hotel and would wait on a phone call from you at your convenience. As of this date I have had no reply. The Conciliation Service is not forced on any one, and my-offer was made in the hopes that a settlement could be effected between your Company and the Union bargaining for your employees. In the event you feel that you would like to have our assistance in this case, I will be available through Friday of this week at The Savannah Hotel. On March 6, Booker wrote Weigle as follows : Under date of March 2, 1946 I received a very short note from you that your Union claims to have been selected as the bargaining agent'of the em- ployees of Atlantic Stages. This was the first indication from you or anyone else that any effort had been made to organize the employees of Atlantic Stages26 As a matter of 23 The above findings are made on credited testimony of Blitch which Booker did not spe- cifically deny. About April 6, Booker told Blitch that his position was being abolished and its functions divided between the shop foreman and the dispatcher because the company was losing money The termination of Blitch 's employment is not alleged to have been discriminatory. 24 Booker testified that Duncan telephoned him Sunday morning, that he told Duncan that he was not in a position to discuss the matter until he had seen "some attorneys" as he did not know what "his position was at all" ; that he understood that Duncan had made Several trips to see him , that he thought that Duncan was trying to force himself into the picture ; and that he had refused to see Duncan. 25 The letter shows that copies were sent to the National Labor Relations Board, National Wage Stabilization Board, and the United States Department of Labor. 2E While Booker testified at the hearing that this letter was his "first knowledge" of any union , he also testified that during the last week in February , he had received an anonymous ATLANTIC STAGES 565 fact, I have never made your acquaintance, nor, to my knowledge have you made any attempt to get in touch with me. Therefore, I am very much sur- prised to find an undated letter in my mail today-one day after I received your first letter 27-alleging that a dispute exists between Atlantic Stages and employees thereof, whom you claim to represent." It had been my intention to communicate to you today that I would be out of the cify for a week, but that I would be glad to get in touch with you on my return. The same situation is still true and I am following your example of notifying the Governmental Agencies that this company has not refused to hear your claims to represent the majority of the employees of Atlantic Stages. Weigle replied on March 6 to Booker's letter, giving the following explanation of his procedure in filing the notice of intention to strike and the request that an election be conducted thereon among Respondent's drivers and dispatchers : The notification that we had been selected as bargaining agent for your employees' and request for a conference is the first step in establishing contact with the employer. The notice of intent to strike is required by law . . and is called the "Thirty day strike notice." This was brought about by your refusal to meet or confer with Commissioner G. A. Duncan of the U. S. Department of Labor, whose sole interest in this matter is if possible to bring the parties to a dispute or potential dispute together and to try to create harmonious relations between the two parties. While it is evident that after the above exchange of correspondence, Booker was in Savannah at least on Saturday, March 9,30 it is clear that Weigle was away from Savannah for a 12-day period which ended about March 25. In any event, it was upon Weigle's return that discussions, considered below, commenced about March 27 and continued from time to time until about the middle of April. 2 Further developments before Respondent met with Teamsters In the meantime, before Weigle met on March 27 with an attorney, Robert E. Banks, whom Weigle had reason to believe was representing Respondent,31 one member of Teamsters had been demoted, another had been discharged, and a third had been suspended.' While determination of whether or not these changes in their status were discriminatory is reserved for a subsequent section of this letter from a passenger on one of the busses telling of a conversation overheard between one of his drivers and some one else about a union. 27 This places the date of the receipt of Teamsters' letter of March 2 as March 5 How- ever, Booker testified at the hearing that he had received the letter of March 2 on the aft- ernoon of March 2, and that testimony is consistent both with his actions beginning on March 2 and with Weigle's statement that the letter was sent special delivery 28 The letter here referred to was a copy of a strike notice filed under the War Labor Dis- putes Act alleging that the issue involved was Respondent's refusal to bargain "honestly" with Teamsters. This strike notice had been mailed by Weigle on March 4 after Commis- sioner Duncan had informed Weigle that he had been unsuccessful in his efforts to secure a conference with Booker 29 It should be noted that while this letter of March 6 referred loosely to "your employees" just as the notification letter of March 2 loosely referred to "the employees of your Com- pany," the strike notice of March 4, a copy of which had been received by Respondent, asked specifically for an election among the drivers and dispatchers 20 Booker personally dischaiked Blackwell on that date and also personally directed exten- sive operations in which "borrowed busses" were used Si The contention that Banks was not representing Respondent is considered below. 22 Jones was demoted March 6, Blackwell was discharged March 9, and Waters was sus- pended March 25 and never reinstated 798767-49-vol 78-37 . 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report, certain events pertaining to two of these employees, Jones and Blackwell, are set out here, as are certain other developments before Banks met Weigle. On Monday morning, March 4, Booker called Dispatcher Jones into his office, as he had said he would during their conversation the preceding Saturday after- noon when he had asked Jones which meant more to him, his job or his union. Polk, the only driver who had not joined Teamsters, was in the office. Booker took away from Jones his customary authority as dispatcher to send out busses and told him that Polk would inform him what busses to send out. Jones, who had served as the dispatcher since July 1945, was thus confined to sitting by the telephone and marking out busses which Polk authorized.33 At the same time that Booker thus stripped Jones of his authority as dispatcher, he also issued instructions that the drivers be kept out of the garage and that everybody except employees be kept away from Respondent' s premises ' Thus beginning on March 4, all of the drivers were required to leave their busses at the entrance to the garage. There had previously been no rule against drivers going into the garage.' On March 6 Jones returned to driving a bus ; ' Polk continued to perform the duties of dispatcher. Concerning this change, a general bulletin dated March 6 and effective as of that date was posted. This bulletin, addressed "TO ALL OPERATORS," was signed by Booker and read : Due to the resignation of Ned Jones as dispatcher we have appointed W. H. Polk as acting dispatcher until further notice. Kindly be governed by instructions issued by Mr. Polk or myself. The undersigned is convinced and finds that after Polk became the dispatcher, Respondent is chargeable with his actions set out hereinafter with relation to organizational activities, even though Teamsters sought to include the dispatcher in the unit.` Jones had normally had only the authority to make recommenda- tions concerning drivers to his immediate superior, J. H. Jarrott, Jr., the operat- ing manager who had vacated that position on February 28. Jarrott's position, which embraced over-all responsibility for the operation of the busses and the supervision of the drivers, has not since been filled. After Jarrott left Respond- ent's employ, Booker told Jones that he would have the authority to hire and fire. It is thus evident that the position to which Polk succeeded, in replacing Jones shortly after Jarrott's resignation, embraced substantially more supervisory re- sponsibility than Jones had customarily exercised. The above-quoted notice posted by Respondent places no one between Polk and Booker, stating that em- ployees are to be governed by instructions from either. Further, it is clear that Polk's responsibilities have increased from time to time. At the hearing, Polk ee The above findings as to Jones' demotion are made on credited testimony of Jones. Re- spondent 's contention that Jones , who had received no increase in pay when he had become the dispatcher , had indicated a desire to return to driving, is discussed below. ,, ,, 84 The premises referred to above and elsewhere in this report , unless otherwise specified, are Respondent's garage and offices which were then located at 342 Drayton Street in Sa- vannah , several blocks from the Greyhound terminal which is used by,Respondent as its Savannah terminal . Respondent has since secured a new garage and offices. 88 The findings as to the March 4 rule barring drivers from entering the garage are made upon credited testimony of witnesses Blackwell , Jones, and Gordon. Booker admitted that the rule was probably made after Weigle's letter requesting recognition had been received but unconvincingly attributed its promulation to compl,^mts' by "two boys in the shop" about an argument between a driver and a mechanic Clearly before the rule was made on March 4, Booker had learned through Jones that Teamsters had organized the drivers. He had also learned.from Ayer that it had not organized the garage employees Be March 5 had been Jones' day off When he returned to driving , he worked the "extra board" for 10 days before hesecuied a regular run. 37 It is found below that the dispatcher should be excluded therefrom. ATLANTIC STAGES 567 testified that he was the dispatcher, "Part Stockroom Manager," and supervised maintenance, "a little bit of all of it." Everything considered, the undersigned finds that when Polk became the dispatcher he in effect became Booker's assistant in charge of the operation of busses and exercised, along with C. V. Boyd, Re- spondent's traffic manager, and Booker, the supervisory functions of the former operating manager as well as those of the dispatcher. Not only were Polk's supervisory functions substantially more extensive than those which Jones had customarily exercised, but, as facts subsequently found herein demonstrate, after Polk became dispatcher, he acted on Booker's behalf in combating Teamsters. For instance, Polk's conversations with Perry Gordon, a driver, establish that Booker was discussing with Polk ways of discouraging Teamsters in that Booker suggested that Polk pick a fight with a driver believed responsible for starting Teamsters in order to afford Booker a basis for discharg- ing said driver. Similarly those conversations, detailed below, also show clearly that Polk was acting not as a fellow employee interested in self-organization but rather as a representative of management when he offered Gordon security in his job if he would get a majority of the drivers to withdraw from Teamsters by signing a petition which he gave him ' It is also noteworthy that while Booker demoted Jones, as is found hereinbelow, after learning of his membership in Teamsters, Booker in no way disavowed Polk's action in attempting to destroy Teamsters' majority."' From the detailed findings which follow as to what Polk said and did after becoming dispatcher, and from Booker's failure to disavow Polk's actions, the undersigned finds that Booker both authorized and ratified Polk's conduct. Attention is now directed to Polk's attempt, upon becoming dispatcher, to destroy Teamsters' majority. On at least three occasions, shortly after Polk became dispatcher, he discussed getting drivers to withdraw from Teamsters with Driver Perry Gordon." On the first occasion, when Gordon was alone with Polk in the dispatcher's office, Polk asked Gordon if he had joined Teamsters along with the other drivers. When Gordon said that he had, Polk asked him if he thought that it would be a good thing. Gordon said that he did not know much about it but that it must be or the majority would not have joined. Polk asked Gordon if he would be willing to get out of Teamsters. Gordon replied that be would if the majority did. Polk said that it would be the best thing for all of them to get out and that it would mean their jobs if they did not do so. When Gordon stated that he did not want to do anything which would hurt his job, Polk told him that his job,would be all right if he would take a petition to withdraw from Teamsters and get more than half of the men to sign it. Gordon replied that he did not know whether or not he could do that as he did not know how the men would feel, but that if the majority wanted to withdraw, he would not mind "going for the petition." Thereafter Polk wrote out in longhand a petition of with- drawal from Teamsters and gave it to Gordon to secure signatures." Is The testimony of both Booker and Polk which is cited below, concerning Booker's in- structions to Polk that he get said petition and tear it up, implicitly recognizes that Re- spondent was chargeable with Polk's actions. I "Even on Respondent's version of Polk's withdrawal petition, which version is not cred- ited for reasons considered below, Booker clearly knew of the petition. Yet no disavowal of Polk's conduct was made by Respondent. 10 Gordon testified that the first discussion took place in the dispatcher's office about a week after Teamsters' applications had been signed. While Polk could not remember the "exact day," and thought that it was around March 2 to 4, he also testified that he was the dispatcher at the time. *' While it appears from Gordon's testimony that Polk may have given him the petition and continued the discussion at the time of their first conversation, it is possible that the 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Polk gave Gordon the petition, he asked him if he knew who started Teamsters. Gordon denied knowing; stated that he only knew those with him when he had signed his application ; and named two or three drivers when Polk asked him who they were.42 Polk then stated that Booker thought that lie knew who had started Teamsters ; that Booker believed that it was Bennie Meeks ; and that Booker had told him that if he would pick a fight with Meeks, he would fire Meeks 43 Gordon assured Polk that he did not know who started Teamsters and that he had signed because the majority had signed. He also asked if he could see Booker about it. Polk replied that Booker could not talk with him about the matter. During the conversation, Polk mentioned several drivers who he thought might want to come out of Teamsters and suggested that Gordon see them" k A day or two later, Polk, in the presence of McCorkle,'° asked Gordon if he had talked with any of the boys about the petition and how 1cCorkle felt about it. Gordon replied that he and McCorkle had talked a little bit and were willing to come out or stay in, depending on the wishes of the majority. Polk asked Gordon if he had talked to Houston and Anderson about it. Gordon said that he had talked a little to Houston. A few days later, when Houston and Gordon were together near the dispatcher's office, Polk asked Gordon if anything had been done about getting men to withdraw from Teamsters. Gordon said that only McCorkle, Houston, and he bad discussed it. Later that day, after Houston .had left, Polk asked Gordon if anyone had signed the petition which he had given to him. When Gordon replied that there were no signatures on it, Polk in- structed that Me petition be returned and destroyed. The petition was destroyed' petition was given to Gordon during a second discussion According to Polk, he gave the petition to Gordon 2 or 3 days after Gordon had told him that he had joined Teamsters and that he and others wanted to get out of it. "Gordon testified that he named Jones and Rhoden and possibly McCorkle 43 Meeks was active in Teamsters and served on a committee of six which later met with Weigle about the last of March to draw up demands However, it was a group of three drivers , Blackwell , Waters, and Hilderbrand, which initiated the investigation of the possi- bility of joining a union. Jones and Rhoden also became active with that group which established contact with Teamsters and secured its assent to taking applications for mem- bership. It should also be noted that Weigle testified that he believed that Meeks, Black- well, and Waters were among the six drivers who met with him on March 1, the day before he wrote Respondent requesting recognition. 44 Gordon testified that the drivers mentioned in this connection were McCorkle, and two of the complainants herein, Anderson and Houston, who were later temporarily laid off early in April. That Polk's advice in regard to Teamsters had been sought at least by one driver is evident from credited testimony of driver W. H Alexander that he had gone to Polk and had asked him what he thought about joining, and that Polk had said that he did not "think so much of it" as he thought the company was too small to be organized Polk did not specifically deny Alexander's testimony but testified rather that he had not advised him to get out of Teamsters. 4e Polk and Gordon had stepped into a bus in front of the dispatcher's office McCorkle was sitting in the bus 46 The above findings are made upon credited testimony of Gordon, who impressed the undersigned as a truthful witness, and upon admissions in the testimony of Polk While Polk specifically denied some portions of Gordon's testimony (including telling Gordon that Booker had said that he would fire Meeks if he would pick a fight with him), Polk did not impress the undersigned as being a veracious witness, and such denials as Polk did make are not credited. According to Polk's version, he had written out the withdrawal petition upon Gordon' s request , when Gordon had come to him to find out how he, McCorkle, Houston, Anderson , and several others who wanted to get out of Teamsters could do so However, since both Polk's and Gordon's versions agree that there were no names on the petition when it was destroyed, it is evident that Goi don's rather than Polk's version of how the petition .originated is the reasonable one. Fuither, it is clear that Booker knew when he instructed ATLANTIC STAGES 569 On the evening of March 9, during an argument about a flat tire for which Booker, a few hours earlier, had laid Blackwell off for 10 days, and during which Booker discharged Blackwell in connection with a "fight" which grew out of the argument, Booker said, "Just because you boys think that you are members of the Union, that gives you the right to tear up my equipment and think you can get by with it." Booker also said that he did not "give a goddam about the Union" or anything that it stood for and that those who ran it were "nothing but a bunch of goddam sons-of-bitches." 41 In addition to the rule above mentioned against drivers going into the garage, two other changes were made in Respondent's practices shortly after the drivers joined Teamsters. The first change was in shop practice to make it possible to detect and place responsibility for the slightest damage which might occur to any bus on any given run. A day or so following Teamsters' request for recognition, Booker personally instructed Ayer to inspect each bus as it came into the garage for any scratches or marks, such as bent fenders, which would indicate that the bus had rubbed against anything or had been in any kind of accident On several occasions, Booker walked around busses with Ayer In order to place specifically the responsibility for any given scratch on the driver who had been responsible for the bus when it had occurred, the plan was adopted of painting over each new scratch at the end of each run and reporting the driver responsible for the damage.48 The other change was to require that each driver turn in his driver's report upon the completion of each run whereas formerly the driver had not been required to turn in his report on any given run until he was ready to go out on his next run 9B This change made it impossible for the drivers to prepare their reports at their leisure as they had previously done 60 On March 13, Teamsters filed with the Regional Director for the Tenth Region, Atlanta, Georgia, its original charge in the instant matter. Among other things, it was charged that Respondent, after assaulting him, had terminated Blackwell's employment on March 9 because of his activities on behalf of Teamsters, and that Respondent had refused to bargain collectively with Teamsters. On March 14, the Regional Director wrote Respondent, informing it of the nature of the charges. that the petition be destroyed, that it constituted evidence of violation of the Act This is evident both from Polk's testimony that he got the petition and "tore it up" after Booker had told him to do so because it "was against the law" and from Booker's testimony that he told Polk that it "was strictly against the law and for him to get that thing and tear it up as quick as possible." 41 Booker unconvincingly denied that he made the above remarks which Blackwell testi- fied credibly that he did make Polk, who was present also, testified unpersuasively that, while he did not remember all of the conversation, he thought that Blackwell "brought some- thing in about the Union" and that Booker refused to discuss it. It is clear from state- ments of Booker, set out elsewhere herein, that he was not reluctant to characterize Team- sters in emphatic language. 49 The lay-offs and discharges of complainants which later occurred in connection with accidents, and Respondent's contention that its policies as to accidents were motivated by its financial condition and by pending increases in its insurance rates are considered below. It should be noted here that while busses had previously been checked for flat tires, the above type of inspection was instituted immediately after the drivers had joined Team- sters. 49 That this change occurred during the first week after Teamsters organized the drivers is shown by Polk's testimony that the instructions were posted 2 or 3 days before Blackwell was discharged on March 9. su Respondent's contention that some of the complainants whose employment later was terminated left Respondent's employ because their drivers' reports showed discrepancies when compared with reports of checkers employed to make a check of Respondent 's drivers, is considered below. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This letter was answered the. day after the first of the series of meetings dis- cussed in the next section of this report. 3. The meetings between Respondent and Teamsters and events during that period On March 26, Robert E. Banks, an associate of O. E. Bright, an attorney whom Booker had consulted for years, telephoned R. C. Weigle, Teamsters Business Agent' and told him that Bright, who Weigle believed was Booker's "legal counsel," and who was in fact Booker's advisor in the matter, had asked him to get in touch with Weigle "and try to work out a settlement of the differences" between Respondent and Teamsters. Thereafter, from March 27 to about the middle of April, a series of meetings took place between Re.p;)ndent and Team- sters. Banks and Weigle attended all of these meetings. Usually a representa- tive of Teamsters, in addition to Weigle, was present. Bright dropped in for at least a part of most of the meetings. Booker was not present at the earlier meetings but was present at each of several meetings which took place during the latter part of this period.62 While there is conflict in the testimony as to what transpired during these meetings, the undersigned is satisfied from his analysis of all the evidence that the following developments took place.63 On March 27, at the first meeting, Banks, who had been asked by his as- sociate, Bright, to get all of the information he could' asked Weigle what per- centage had signed up with Teamsters. Weigle replied that to the best of his knowledge all but one of the drivers had signed and stated that Teamsters would submit its cards for a cross-check against the pay roll. Banks did not question Weigle's claim of majority and said that he would take the matter up with Booker and see if he would agree to a cross-check. Banks also asked Weigle, if lie had a proposed contract ready. When Weigle said that he did not, Banks asked him to formulate a list of things that Teamsters wanted so he could take it up with Booker and see what could be done about it. The day after the above meeting, Respondent wrote the Regional Director, over the signature J. A. Booker,66 the following letter dated March 28, 1946: This will acknowledge receipt of your letter of March 14th. You would have had a reply sooner but I have been out of the City. Your information 01 Several days earlier, while Weigle was out of Savannah, Banks had tried to contact him. e3 A Field Examiner of the Board also attended one or two of the last meetings. as For the most part, these findings follow the testimony of Weigle, whose version of events was the most complete and convincing, and whose credible testimony was substantiated, in part, by testimony of Respondent's witnesses. Testimony in conflict with these findings is not credited. S! Banks had known Weigle and other representatives of local labor unions in Savannah for several years, during which Banks had served first as Industrial Relations Counsel and later as Assistant to the President in Charge of Industrial Relations at Southwestern Ship- building Corporation. "a Booker testified that O. E. Bright, whom he had known for years, signed his name to the above letter. Assuming that Booker's name was signed by Bright, the undersigned is con- vinced and finds, that both Bright and his associate, Banks, were acting for Respondent in its relations with Teamsters from the time of Weigle's return to Savannah until about the middle of April. Bright testified that Booker had consulted him for advice for years ; that Booker had consulted him in this matter ; and that he had "advised him as best" he could. The fact that Bright, who had until recently received a retainer from Booker, did not bill Booker "for any of the work involved in this case" does not permit Respondent now to dis- claim responsibility for activities of Banks and Bright herein detailed. ATLANTIC STAGES 571 with reference to the discharge of H. M. Blackwell is in error. His discharge was in no way connected with his Union activity. No labor dispute exists. Mr. Weigle has informed me that he represents a majority of my drivers. I have asked him to submit evidence to that effect and to advise me what he desires and ewpects in the way of Union recognition and a Union contract. [Emphasis supplied.] I am perfectly willing to cooperate with him if satisfactory arrangements can be worked out. I will be glad to advise you of any further developments. Also after the above meeting, a committee of six drivers and Weigle drew up a list of 11 desired provisions 6s which Weigle submitted to Banks at a brief second meeting which took place about 2 days after their first meeting. Banks looked over the list and said that he thought some things would be agreeable to Booker but that others would not 67 At the next meeting a few days later, early in April, Banks told Weigle that he had discussed the proposals with Booker, that some were "entirely unsatisfactory" to Booker, that there were some that Booker "could go along with," and that there were some on which Booker wanted further clarification or negotiation. Banks also explained Booker's position on each of Teamsters' 11 proposals, stating that recognition for mechanics and helpers and the dispatchers was not agreeable and that there were no terminal employees. After the foregoing meeting, Booker was present at the two or possibly three meetings which were subsequently held. In spite of seemingly auspicious begin- nings, the meetings terminated about the middle of April, not because of any deadlock on contract provisions or on the employees to be included in the unit, but because Booker insisted, against the advice of Bright Is and Banks, on an election based on a pay roll of a current date as evidence of Teamsters' majority., Booker 'insisted that the new employees, who had in the meantime replaced several of the drivers, should have an opportunity to express their desires. Teamsters was not willing to agree to such an election because of the delay and the lay-offs and discharges which had taken place, but was willing to submit its cards to be checked against the pay roll as of the time of the request for recognition, March 2. Concerning these meetings, it is noteworthy that Banks, who was well in- formed on matters pertaining to labor relations, testified that at one time he told Weigle that he did not believe that his union had jurisdiction over the employees which it claimed to represent ; 69 that "Booker was howling for an election" be- cause he "thought that maybe the Amalgamated Union should have represented his employees" ; and that "Mr. Booker never got around to admitting that he wanted to deal with Mr. Weigle or any other Union." About the time the above series of meetings terminated, with Booker, in spite of the advice of Banks and Bright, demanding an election on the basis of the current pay roll, Teamsters filed a Petition for Certification of Representatives Ee The first provision was recognition as bargaining agent for all bus operators, mechanics, helpers , and garage men, dispatchers, and terminal employees. Other provisions included union shop, check-off, seniority, arbitration, sanitary sleeping quarters away from home terminals, off-route mileage pay, minimum weekly guarantee, allowance for changing tires, one day of rest each week, and vacations. cr The undersigned is satisfied from credited testimony of Weigle that Teamsters' proposals were submitted not later than Saturday, March 30. 5s Booker testified that he had a disagreement with Bright on this matter. 68 During his testimony , Banks explained that he had made this remark because in his experience employees of bus lines such as Respondent 's were members of Amalgamated rather than of Teamsters. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Board6° This petition, filed on April 16, claimed as the appropriate unit all of Respondent's bus operators, dispatchers and garage men, excluding mechanics and mechanics' helpers" In the meantime, in addition to the already mentioned demotion of Jones from dispatcher to driver, and the termination of drivers Blackwell and Waters which had taken place before the meetings started, by the time the meetings had concluded and the petition had been filed on April 16, 11 additional drivers who were members of Teamsters had been laid off or their employment had terminated. The first of these additional changes in status occurred just as the meetings were getting under way when C. W. Collins was laid off on March 29, ostensibly in connection with a newly instituted practice pertaining to accidents G2 On March 30, Carter B. Collins, Jr ; on April 1, C. L Houston ; on April 3, L. D. Anderson ; and on April 6, W. J. Ward were laid off in connec- tion with accidents63 Most of the foregoing lay-offs in connection with accidents were for 10 clays 64 However. Ward's lay-oft was for 20 days and he was never reinstated. In addition to these lay-offs, drivers Emmett Phillips, Jr., Perry W. Gordon, W. T. Flanders, Olin Todd, P J. O'Neal, and D. W. Brant G5 were separated from Respondent's employ, 3 on April 8 and the rest shortly thereafter, in connection with alleged discrepancies revealed by checkers' reports, which reports had been prepared during the preceding few weeks and delivered to Respondent on April 8. On April 2, 5 days after he had been laid off on March 29, following an acci- dents` C. W. Collins went to Booker's office to find out about an investigation of his accident which Booker had told him the insurance company would have to make before he could return to work. Booker told Collins that he had heard from Frank Howell, an insurance adjuster, and that Collins would have to be off for 5 days more 67 During a discussion which lasted some 45 minutes, Booker explained that he had to make some arrangements to cut down accidents because his insurance rate was very high G8 Collins pointed out that anyone driving was likely to have an accident sometime. When the discussion turned to the condition of Respondent's equipment,G" Booker told Collins that regardless of what happened, not to make it any worse on the equipment than he could help as the insurance rate was bad enough but would be even worse if blame was so It is not clear whether the last meeting took place just before or just after the petition was filed. si This is the same unit alleged in the complaint except that the exclusion of supervisory employees was not specified The petition was docketed as Case No. 10-R-1531. It Sias withdrawn on June 17, 1946, without prejudice, upon the approval of the Regional Director for the Tenth Region 62 Respondent's contentions relative to its endeavor to curtail accidents are considered in a subsequent section of this report 61 The dates here used are conformed to the proof, as appears more fully below 6' Carter B. Collins, Jr , was laid off for only 3 days. 65 Brant, a member of Teamsters whose termination is not alleged to have been discrimi. natory, had been laid off shortly before because of an accident 68 For reasons discussed more fully below, the undersigned accepts March 27, shown by records of Howell, an insurance adjuster, as the date of the accident, and has determined the above dates therefrom 67 While Rowell was reporting his findings as to responsibility for accidents in connection with Respondent's newly instituted practice of lay-offs following accidents, it should be noted that, contrary to the impression which Booker was giving his employees, the practice was not imposed on Respondent by the insurance company. 68 As appears more fully below, Respondent's accident rate was high and an increase in insurance rates was pending 66 The record establishes that much of the equipment was old and could not always be kept in a satisfactory state of repair. ATLANTIC STAGES 573 placed on the condition of the equipment At one point, Booker explained that he had spent $30,000 to get a new bus route from Americus to Columbus, Georgia ; that because of their union activities the drivers had got him all "messed up" so that he really did not know what to do ; and that he probably would have had them out on that run if Teamsters had not been started." One further development during the latter part of the period when Respondent and Teamsters were meeting is noteworthy. One of the drivers hired by Booker as a replacement during the first half of April was Thomas M. Smith." Smith, an experienced driver, went to see Booker about the first of April and applied for a position. Booker told Smith that he did not hire experienced drivers but trained his own drivers. Smith was wearing a union button showing member- ship in the Amalgamated.72 Booker asked Smith if he belonged to a union and Smith replied that he belonged to Amalgamated and believed that it was a good thing for both the employer and employees. Booker explained that Teamsters was trying to represent his drivers ; that he did not think that it was the right thing for them to go into ; and that he could not hire Smith until he saw what was going to happen. Booker also mentioned the possibility of using an ex- perienced driver in connection with a driver-training program he was con. templating. Either then or at a second meeting, Smith showed Booker his of- ficial certificate of membership in Amalgamated.i3 Thereafter, before the middle of April and upon the termination of Driver Todd,74 Smith was put to work as a bus driver. Thus shortly before the meetings with Teamsters broke up with Booker demanding an election, a known member of Amalgamated had been em- ployed by Respondent to replace a Teamsters' member.77 4. Developments after the termination of meetings between Respondent and Teamsters During the first half of May, several weeks after his separation from Respond- ent's pay-roll in connection with checkers' reports and after meetings between Respondent and Teamsters had terminated, Todd went to see Booker to try to get reinstated as a driver. Booker would not reinstate Todd, but maintained that Teamsters had had nothing to do with anything which had happened. However, during that conversation, Booker also told Todd that "before he would have the Union," he would shut down or sell out the bus line, and that there was nothing but "a bunch of sons-of-bitches in the Union " 76 70 The above findings are made on credited testimony of Collins. As appears above, Booker's purchase of this bus line was actually still before the I. C C. for its approval at the time of the hearing 71 Circumstances surrounding Smith's termination on May 31, shortly after he had signed up most of Respondent's employees in Amalgamated, are considered below 72 While Smith, in order to secure a position through Weigle, had previously also signed with Teamsters, he did not reveal this fact to Booker 73 This letter-size certificate was introduced into evidence. Booker testified that Smith showed him this certificate when he made a second visit about securing a position. It is not clear from Smith's testimony whether the certificate was displayed on his first or on a second visit, but in any event it was displayed to Booker before Smith was hired 74 Smith testified that he was employed on April 13, but Todd's resignation is dated April 8. 75 The above findings are made upon the undersigned's analysis of the testimony of Smith and Booker, which testimony is not in substantial conflict. It should be noted that when Booker told Weigle that he had hired Smith, Weigle told Booker that he thought Smith would give him some trouble. Booker said that if Weigle thought so, he would get rid of Smith. Weigle replied that since Teamsters had no contract he had no right to request Booker to discharge Smith. "Todd so testified credibly. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the middle of May, a document was prepared in triplicate, circulated, and signed by 11 of Respondent's drivers. This so-called petition read : SAVANNAH, GA., May 16, 1946. To : The INTERNATIONAL BROTHERHOOD TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN & HELPERS , Local No. 897, Savannah, Ga. We, the undersigned employees of the Atlantic Stages, do hereby withdraw our applications for membership in the above local and/or to have said local represent us as Bargaining Agent, effective immediately. A copy of this Peti- tion and Notice is being forwarded to the Regional Office of the National Labor Relations Board in Atlanta, Ga. Driver Hilderbrand, whose signature is the first of the 11 appearing on the petition,77 testified that he had consulted no one and was solely responsible for the wording of the above petition ; that his wife had typed up the petition for him ; 7t and that he had circulated it and secured "all those names on it." 9 The above withdrawal from Teamsters was signed by all the complainants in the instant matter, except Thomas M. Smith, who were still on Respondent's pay roll, namely Ned Jones, L. D. Anderson, C. W. Collins and C. L. Houston, all four of whom previously had been laid off in connection with accidents.80 One further matter pertaining to the withdrawal petition should be noted. While Smith did not sign it, Hilderbrand asked him if he wanted to sign it. Smith then called Thomas McBrayer, an International Representative of Amal- Smith then called Thomas McBrayer, and International Representative of Amal- gamated, and thereafter went to Hilderbrand's home and informed Hilderbrand that McBrayer had asked that the withdrawals be withheld for a few days so that he could get together with Weigle to work out something. Hilderbrand indicated that he might wait awhile before sending in the petition. However, Hilderbrand mailed the petition before Smith, who later signed up Respondent's drivers for Amalgamated, returned from his next run.81 71 The second signature was that of McCorkle in whose presence Polk had discussed with Gordon the petition withdrawing from Teamsters which Polk had given Gordon some 6 weeks earlier . The third signature was that of Meeks who was later active with Hilder- brand and McCorkle in arranging a meeting on June 11, discussed below, between Booker and the drivers 78 Similar responsibility for a similar petition discussed below dated June 3 , withdrawing from Amalgamated , was also claimed by Hilderbrand . He testified that his wife had typed up both petitions ; that her experience other than housekeeping had consisted of working "a little while" in a drug store ; and that he had never studied law or previously drawn up a petition. 79 It is noteworthy that while Hilderbrand had been active with Blackwell and Waters in starting Teamsters , he had denied knowing about Teamsters when Booker had asked him about it on the night of March 2. 11 It should be noted that in the meantime , Carter B. Collins, Jr., who had been laid off on March 30 in connection with an accident , had been discharged about May 8 in connection with a subsequent accident. 81 These findings are made on credited testimony of Smith. While the record does not reveal what understanding , if any, may have been reached between Teamsters and Amalga- mated, Weigle testified that both are affiliated with the AFL and used to be competitors ; that they presently cooperate and in some cases have joint contracts ; that once his organi- zation had started to organize a company , any settlement on jurisdiction which might be reached was a matter between the two organizations ; and that he was "definitely dis- pleased" when he learned that Smith was attempting to organize Respondent ' s employees for Amalgamated . The undersigned does not believe that it is necessary to draw any in- ference as to why Amalgamated later authorized Smith to secure applications from Re- spondent's employees , or as to whether any understanding was reached between Teamsters and Amalgamated . Further, Booker testified that he had never received a request for recognition from Amalgamated. ATLANTIC STAGES 575 While the undersigned is not satisfied that the testimony thereon fully reveals the relationships between Respondent and a group of its drivers , with respect to organizational activities, it is evident that conversations between Booker and a small group of drivers headed by Meeks and Hilderbrand 82 took place from time to time during May and early June and culminated in meetings between the drivers and Booker on June 11 and 12. Thus a series of discussions between Booker and a committee of drivers was interlaced with events described hereinafter. Concerning these discussions , Booker testified that Meeks and another driver °' came to him about a week or 10 days after he had received the withdrawal from Teamsters ; that they asked him if he could "see fit to give the boys a raise" ; that he told him that he did not know whether he was at liberty to talk with them; that he thereafter consulted three attorneys 84 who told him that "if the boys had decided to come out themselves ," it was "perfectly legal and right" that he ";dis- cuss anything with them" ; that he then took that position with the drivers and staretd negotiations ; that when Meeks told him that the Amalgamated was organizing ,85 he "broke off negotiations " and told the group tsat it was "definitely illegal" for him to discuss a raise further with them "since the boys had already started to organize another outfit" ; that after he had later received the with- drawals from Amalgamated,8° the group came to him again and said that they were "all out of all the Unions " and asked if he would talk with them ; that after again consulting an attorney he took the position that the best thing to do would be "to get the boys together" to talk it over to "see what we can work out" ; and that thereafter arrangements were made for the meetings discussed below. While the testimony of Meeks and Hilderbrand was less detailed than Booker's concerning the events which led up to the meetings of June 11 and 12, it was similar and did not substantially conflict with the foregoing testimony of Booker. In addition , Meeks testified credibly that when he and McCorkle asked Booker for a raise, Booker asked him to find out how much of a raise would satisfy the drivers. The undersigned accepts the testimony of Booker and Meeks set out above as indicative of the dealings between Booker and the committee of drivers during May and June while the following events were transpiring. During a 2 - or 3-day period about the end of May, Smith , who had arranged with Polk to trade runs with another driver so that he could be off, led a campaign to sign up Respondent 's drivers in Amalgamated" During this period, about 20 drivers signed blanks applying for membership in Amalgamated and paid $2 each which was credited as initiation fee and the first month 's dues.88 82 It is apparent from Booker's testimony that the group varied from time to time and upon occasions also included McCorkle and Anderson, and that Meeks and Hilderbrand were the leaders of this committee. 84 Booker was not sure, but believed that this driver was McCorkle. It appears more likely, however, that it was Hilderbrand. 84 In addition to 0 E Bright, mentioned above, Booker named two other attorneys not elsewhere mentioned herein. 85 This organizational activity took place about the last of May. 81 It should be noted that Amalgamated, the withdrawals from which are discussed below, at no time sought recognition of Respondent. 87 Smith was assisted by Jones and Graham, who were still employed as drivers, and by Todd whose services had terminated. 88 Smith testified that he understood that if the drivers "choose from either of the unions" and "leave out" Amalgamated, the $2 would be refunded. Smith also testified that Inter- national Representative McBrayer of Amalgamated had been in conference with Weigle and also had contacted the Board's Regional Office in Atlanta. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About May 31, Driver Lee Roy Osborne, who had signed up with Amalgamated and had secured a receipt for $2 bearing Smith's signature, showed this receipt to Polk when Polk, while "discussing the raise," asked him how much it had cost him to join Amalgamated Upon seeing the receipt, Polk laughed and said that Smith did not have to lie to Win." About midnight on May 31, shortly after Polk had seen Smith's name signed to Osborne's receipt, Polk discharged Smith 90 About the first of June, Booker called Osborne into his office and discussed several matters with him when only the two of them were present. Booker told Osborne that there were some things which had to be straightened out such as the accident rate which was costing the company too much money because of increased insurance premiums and the "wish-washy" drivers who could not seem to get together. During the conversation Osborne told Booker, without iden- tifying the union involved, that he had joined the union but that he had not had anything to do with organizing it. Booker asked Osborne who it was that was paying him. Booker also said that he would rather lease out his business than have it "messed up like it was" and that he already had the papers made out to lease it. Osborne suggested that Booker call a meeting of the drivers to find out what they wanted, but Booker said that it would be a violation of law for hini to call such a meeting as the drivers had joined a union. Before Osborne left Booker's office, Booker asked him whether or not he was "for the company" and told him that he was going to know whether or not he was 91 On June 3, some 10 or 12 drivers who had signed up with Amalgamated inet during the evening in a room in the DeSoto Hotel in Savannah at the invitation of Hilderbrand. After he had sent Smith from the meeting room, Hilderbrand told the drivers that Booker had agreed to increase the rate to drivers to 4 cents a mile on the run from Savannah to Eufaula, Alabama,92 and to increase the hourly rate by 10 cents an hour on the beach division,' if they would get out of Amalgamated and get straight 9` Hilderbrand attempted to persuade the 89 This finding is made on credited testimony of Osborne, who impressed the undersigned as a truthful witness Polk's denial, and his attitude as a witness at that point in his testimony , was particularly unconvincing . While Osborne testified that Polk did not ex- plain in what way he thought Smith had lied to him, the undersigned is satisfied from Smith's testimony that Polk was under the impression that Smith had arranged for time off for personal reasons and that Polk did not know that Smith intended to use that time to organize for Amalgamated. 90 The undersigned is satisfied that Polk discharged Smith about midnight, May 31, as Smith testified , rather than merely telling Smith to go to see Booker , as Polk testified 01 Osborne, upon whose credited testimony the findings in this paragraph are based, placed the date as being after he had signed out of Teamsters and into Amalgamated, but before he had signed out of Amalgamated Thus the date would be between May 29 and June 3. Booker's brief description of his conversation with Osboine, which was not persuasive char- acterized it as involving no union discussions but only Respondent's general improvement and safety program Booker placed the time as after he had received the withdrawal from Teamsters and before he had learned of activities on behalf of Amalgamated, during which period he understood his attorneys to say that he was "at liberty to operate and deal with my men directly " However, during the conversation, Booker told Osborne that he could not call a meeting because the drivers had joined a union, and the undersigned is satisfied that Booker's purpose in talking with Osborne was to get the drivers out of Amalgamated. 92 This was the longest bus route and the mileage rate then paid was 3 cents a mile 93 The hourly rate then was 80 cents 94 Jones so testified credibly. While the word "union" appears in Jones' testimony, it is obvious from the context as a whole that Amalgamated was being referred to at this meeting. That such inducements were also held out by Meeks, another leader of the com- mittee, during conversations is shown by the evidence . Jones testified credibly that Meeks told hun that Respondent was "fixing to give us a raise, but since we got signed up in Ibis Amalgamated Union, they were going to hold it off . . . if we come out of it, they ATLANTIC STAGES 577 drivers at the meeting to sign a petition, set out below, which he had with him and which he told them he had drawn up himself. While the drivers were together at the meeting, they refused to sign. When they offered to help Hilder- brand pay for the hotel room, he would not accept and stated that the room had already been paid for.'5 Within a few days following the above meeting, the petition, which Hilder- brand circulated unsuccessfully at the meeting, was signed by 17 drivers. This withdrawal petition which, like the withdrawal from Teamsters, was sent to the labor organization involved, Respondent, and the Board, read as follows : SAVANNAH, GA., June 3, 1946. To : Mr. T. M. Smith or Amalgamated Assn of Street Electric Railway and Motor Coach Employees of America, Atlanta, Ga. We, the undersigned employees of the Atlantic Stages, do hereby withdraw our applications for membership in the above local and/or to have said local represent us as Bargaining Agent, effective immediately. A copy of this Petition and Notice is being forwarded to the Regional Office of the National Labor Relations Board in Atlanta, Ga. On June 11, Booker had dinner and a meeting with some 10 of his drivers and on the following evening, June 12, he had a second dinner and meeting with 8 additional drivers who, because of their runs, were not able to attend the first meeting.' Both meetings were held at a tavern near Savannah. At least part of the drivers who attended were notified of the meetings and asked to attend by Polk. In addition to Booker and the drivers, the dinners and meetings were attended by some office employees," and by Polk and C V. Boyd " What transpired at the dinners and meetings appears to have been substantially the same on both evenings. After a round or two of drinks and a dinner selected individually from the menu by each of those attending, all of which was paid for by Booker, a prepared statement dated July 11, 1946, which Booker had drawn up and which was addressed to him, was passed around to the drivers by Booker who said that he wanted them to sign it and that they would then have a discus- sion. The typed statement thus signed by 10 drivers on June 11 and by 8 drivers on June 12 read as follows : , The undersigned employees of Atlantic Stages are not affiliated with any union organization, therefore, request a meeting with you for the discussion of wages and other related matters" would give us a raise ." Meeks also made statements of similar import to at least one other driver, Osborne, as is shown by Osborne's testimony that either Polk or Meeks told him that if the drivers had not gone into the other union they would have got a raise, and Polk's testimony that Meeks had told one of the drivers in his presence (and had told him that he had told other drivers) that they had "played hell" in relation to their raise by joining another union 95 Hilderbrand testified that he personally paid for the room and for four Coca -Colas and that he called the meeting because of his "own personal feeling to get the employees out" and that no one had requested him to call the meeting 99 The findings in the above paragraph and the two which follow are made upon the undersigned ' s analysis of the testimony of Anderson , C W. Collins, Alexander , Hilderbrand, Meeks , and Booker, which is , for the most part, essentially supplementary rather than contradictory in nature 97 They were evidently present to take notes of discussion 98 Boyd is the traffic manager, and now performs some of the functions of operating manager 99 Booker testified that he had prepared the letter to himself to make "a record to put in my files that I hadn ' t violated the Wagner Act " Booker also testified that lie had sought legal advice concerning discussing a raise with the drivers because he did not "want to take 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the drivers on the respective evenings had signed the above statement, Booker said that he was in a position to discuss with them pay increases and other plans. Booker and Boyd then explained the plans which they said had been under consideration 100 While it is apparent that the drivers at the meetings were given an opportunity to express opinions, it is also evident that Booker had made up his mind what he would be willing to do ; explained the plan to the drivers ; and received their acquiescence therein. Booker's explanation of what transpired was that he submitted what he thought the company "could stand," provided the drivers put forth extra effort and helped "make it back" ; 101 that the drivers "all agreed" ; and that he told them at the first meeting that nothing definite could be determined until the next night when the "other half" of the drivers would be in from their runs. Certain significant changes in working conditions were discussed at and in- stituted following these meetings. The hourly rate for surburban runs was increased from 80 cents an hour to 90 cents, and the mileage rate for inter-city runs which had been 3 cents per mile was placed on a graduated scale ranging from 3 cents for drivers with less than 6 months of service to 4 cents a mile for drivers with 2 years or more of service. Respondent also instituted a safety award of 1 week's pay upon the completion of 30,000 miles of driving without a chargeable accident102 In addition, a program of training G. I's as drivers was announced. Booker also said that they would try to have a meeting at least once a month to discuss anything which might come up involving betterment of the "situation" of the drivers 103 On June 17, Teamsters' petition for determination of representatives was -withdrawn. On June 19, under circumstances discussed more fully below, the employment of C. W. Collins was terminated. B. Conclusions as to interference, restraint, and coercion The activities of Booker and Polk as above chronicled, when considered in their totality, clearly establish the allegations of the complaint that from on any chances on making a slip on this matter" as he understood that the law prohibited him from interfering with the rights of his employees to select a bargaining agent and his attorneys had advised him that discussing raises with individual drivers might be in- terpreted as such interference. 100 As is indicated above, discussions had taken place between Booker and the drivers' committee, and Hilderbrand and Meeks had discussed matters with drivers until the drivers generally had the impression that a pay increase would be forthcoming when they withdrew from Amalgamated. 'O' Booker also said Respondent was going to incorporate and that he thought that it could be arranged for drivers to purchase stock 103 A chargeable accident means one which occurred through the fault of the driver. 1o3 It does not appear that any such additional meetings were held However, it should be noted that Rule 81 in Respondent's "Manual of Operating Rules and Regulations," prohibits drivers from discussing grievances among themselves or with outside persons. This rule, entitled "Driver's Grievance" reads. Any driver having a grievance, or complaint, or being dissatisfied, should state such grievance, complaint, or dissatisfaction to his superintendent, and in no instance should this be discussed with any other employee or outside person If the grievance is such that the driver feels that he does not desire to discuss same with his superintendent, the same should then be reported to or taken up with the next in authority in the organization. While it is obvious that enforcement of the above rule would constitute violation of the Act, since the record shows that Respondent's rules are not uniformly enforced, since there is no evidence that the above rule has been invoked against any driver, and since the rule was not put in issue at the hearing and the Board makes no contention as to said rule, the undersigned makes no finding or recommendation relative thereto ATLANTIC STAGES 579 or about March 2, 1946, Respondent vilified, disparaged, and expressed disap- proval of Teamsters ; interrogated its employees concerning their union affilia- tion; and urged, persuaded; threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of Teamsters or any other labor organization!" The undersigned is convinced from the record as a whole that the principal underlying factor operating throughout was Booker's unwavering determination to thwart the unionization of his drivers, and that these events form a pattern of behavior directed to that end. Accordingly, the undersigned finds that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act as alleged in the complaint. C. The refusal to bargain 1. The appropriate unit The complaint alleges that all bus drivers, garage men, and the dispatcher employed by Respondent, exclusive of mechanics, mechanics' helpers, and super- visory employees with authority to hire, promote, discharge, discipline or other- wise effect changes in the status of employees or effectively recommend such ac- tion, constitute an appropriate unit 106 While Respondent's answer denied "all allegations of the complaint," counsel for Respondent did not challenge, either in his oral argument or in his brief, the appropriateness of the unit alleged. However, it is clear from testimony given by Booker, that Respondent considers its dispatcher to possess substantial supervisory authority, and from the testi- mony concerning the meetings from May 27 to about April 15 between Respondent and Teamsters, that Respondent desired to exclude the dispatcher from the unit because of his supervisory authority.106 104 For instance, vilification, disparagement, and disapproval of Teamsters is shown by Booker's statement to Blackwell that those who ran Teamsters were nothing but "a bunch of goddam sons-of-hitches" and by Booker's statement in like vein to Todd that there was nothing but "a bunch of sons-of-bitches in the Union " Interrogation of its employees con- cerning their union affiliation is illustrated by Booker's asking Ayer, a garage employee, if he had joined Teamsters and by Polk's asking Gordon if he had joined. Finally, Polk's statement to Gordon that it would mean their jobs if the drivers did not get out of Team- sters, Booker's statement to C W. Collins to the effect that he would probably have had drivers out on a new bus route if they had not organized and got him all "messed up," Bookers' statement to Todd that he would shut down or sell out before he would "have the Union," and Booker's statement to Osborne that he would rather lease his business than have it "messed, up like it was" constitute, when considered in their context, threats and warnings to Respondent's employees against assisting, becoming members of, or remaining members of Teamsters or any other labor organization 305 The same unit was alleged to be appropriate by Teamsters in its Charge, filed July 3, and also in its earlier Petition for Certification of Representatives, filed April 16, except that the Petition did not name supervisory employees among those to be excluded 306 It should be noted that the unit of recognition requested by Teamsters in its pro- posals presented by Weigle to Banks about the last of March included all bus operators, mechanics, helpers, garage men, the dispatcher and terminal employees The evidence as to those meetings shows that Respondent, in addition to objecting to the inclusion of the dispatcher because of his supervisory duties, objected to the inclusion of its agent at McRae, who was apparently the only person who might be considered a terminal employee, because he was also a partner in the cafe at the bus station there, and also objected to the inclusion of mechanics and helpers for at least a year because conditions in the garage were unsettled. It is evident from the petition filed by Teamsters on April 16, which did not seek to include terminal employees, agents, mechanics, or mechanics' helpers, that ,canisters had acquiesced on those classifications Although Teamsters continued to seekT 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony of Booker and Weigle show, and the undersigned finds, that of the 45 employees listed upon Respondent's March 2 pay roll,"' the office em- ployees, the garage foreman, the agent, and the traffic manager should all be ex- cluded from the unit. Further, the undersigned is convinced and finds from the testimony of Booker and Weigle that the functions of Respondent's 11 garage employees are organized in such a way that they do not fall within the meaning of the term "garage men" as used by Teamsters to describe the work performed by such employees as it would seek to include in the unit. Hence these 11 garage employees should be excluded, from the appropriate unit and the term " garage men" deleted from the description of the unit X09 As to the dispatcher, the undersigned is convinced and finds from all of the evidence that on March 2, 1946, and thereafter, Respondent's dispatcher, what- ever his previous duties, has had such substantial supervisory duties and authority that this position should be excluded from the unit, in keeping with the Board's usual practice.10f The remaining employees on the March 2 pay roll, the 23 drivers, constitute a homogeneous group whose duties are similar and who have been organized by Teamsters. In the opinion of the undersigned, these drivers constitute' an appropriate unit.110 Accordingly, the undersigned finds that all of Respondent's drivers, exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action, at all times ma- terial have constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2 Representation by Teamsters of a majority in the appropriate unit The evidence establishes that all the employees on Respondent's March 2, 1946, pay roll who were serving as drivers, except one, signed blanks designating the inclusion of the dispatcher , it was not disagreement on this matter which led to breaking off negotiations between Respondent and Teamsters 107 See footnote 16 above. 10s Ten of these garage employees are classified as mechanics , mechanics' helpers, or G. I. student mechanics They usually work in groups of three, composed of one employee in each of these classifications , and they do all of the repairing and servicing of each of the busses upon which they, as a crew , work Weigle testified that Teamsters had made no attempt to organize Respondent ' s mechanics , and claims as garage employees only those who changed tires and w ash, grease , and service busses, when such duties are segregated from duties of mechanics Booker ' s testimony shows that there are not any garage men, in that sense . The other employee listed under "garage" is a janitress who spends about' 85 percent of het time keeping the office clean and running errands, and about 15 percent of her time in the garage helping to clean busses . Teamsters does not desire to include this employee. 109 See the findings above as to the dispatcher ' s duties in connection with the findings as to Respondent ' s chargeability for Polk 's activities . It should be noted that Jones.testr- fled that as the dispatcher he normally had had authority only to recommend hiring and discharging and that Booker had told him, on February 28, 1946, the day upon which Jarrott had resigned , that he had the added authority to hire and hie Booker testified that on March 2, as dispatcher, Jones' duties were to supervise the drivers generally, to familiar- ize them with rules and the safety campaign , to assign the divers to runs, to dispatch busses on special and regular trips, to make out defect cards, and to make recommenda- tions to him concerning hiring and firing and in some cases , in his absence, to hire and fire. If is not clear how many of these functions Jarrott had performed no It is noteworthy that Respondent ' s letter of March 28 to the Regional Director, over Booker ' s signature , states, "Mr. Weigle has informed me that he represents a majority of my drivers " ATLANTIC STAGES 581 Teamsters as their collective bargaining agent on either February 27 or 28. The evidence also shows that authorizations were signed by 24 of the 45 em- ployees on Respondent's pay roll of March 2 on the same days. It is thus evi- dent that on February 28, 1946, Teamsters represented a majority of all of Respondent's employees,"' and substantially all of the employees in the unit found hei einabove to be appropi iate. Respondent contends in its brief that Teamsters lost its majority through voluntary withdrawals and not because of any coercion on the part of Ite- spondeiit The facts found above and the record as a whole do not support Respondent's contention The undersigned is convinced and finds that the drivers who signed the petition on May 16 withdrawing from Teamsters did so in sub- stantial part because of Respondent's unfair labor practices. Further, the undersigned is convinced and finds, for reasons which appear more fully here- inafter, that neither the withdrawals from Teamsters in the petition of May 16, nor the uncertainty in their testimony at the hearing of some drivers who had designated Teamsters as to whether they wanted Teamsters or Amalgamated to represent them 12 can operate to deprive Teamsters of its majority. From the record as a whole, the undersigned is convinced that if Respondent had not engaged in unfair labor pi actices, no question would now arise as to the continuing majority status of Teamsters in the appropriate unit. Accordingly, the undersigned finds that on February 28, 1946, and at all times thereafter material, Teamsters was the duly designated representative of a majority of the employees of Respondent in the above-defined appropriate unit and that, pursuant to Section 9 (a) of the Act, Teamsters was on that date, at all times thereafter material, and now is, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain From the sequence of events set out above and the record as a whole, the undersigned is convinced and finds that Respondent, by its course of conduct beginning on March 2, 1946, and continuing thereafter, has refused to bargain with Teamsters. Considering this conduct in its totality, it is evident that the underlying factor operating throughout this case has been Respondent's fixed purpose to avoid recognition of Teamsters or any other labor organization as the representative of its drivers."' Thus, while Respondent's contentions as presented at the hearing and in its brief, all of which have been duly weighed, may appear, when considered in a fragmentary setting, to explain and excuse certain aspects of Respondent's conduct, in its total setting these fragmentary explanations become unconvincing. The undersigned is persuaded that no pur- pose would be served by a protracted analysis of the Board's and Respondent's contentions as to whether or not certain of the various phases of Respondent's 11 In Teamsters' first request for recognition on March 2, it asked recognition for "the employees of your Company " 112 Jones, who helped to organize for both Teamsters and Amalgamated and who signed up for both and withdrew from both, testified credibly that he still considered his designa- tion of Teamsters to be in effect , that while he did not have any preference," he did desire that one of them represent him; that they had needed representation all the time" ; and that there had been such shifting because some of the drivers "had been scared " 118 Assuming that Respondent was worried about the financial condition of its small, independent bus line, such financial condition would not excuse Respondent from its obligation to bargain although financial stringency might provide a clue to Respondent's persistency in avoiding bargaining. 798767-49-vol 78-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities constitute refusal to bargain since the refusal as found by the under- signed lies in the coarse of conduct when considered in its total context. A survey of what the undersigned is convinced are the salient facts reveals that Booker, from the beginning, set his course against bargaining with Team- sters. On Saturday, March 2, the day upon which he received its letter request- ing recognition for "the employees," Booker established by inquiring of Ayer and Jones that while Teamsters had not organized the garage employees, it had signed up all of the drivers but one. That same day Booker asked Dispatcher Jones which meant more to him, his union or his job, and told Hilderbrand, when he evaded Booker's question by professing ignorance of organizational activities, that he would not give up without a fight. At the beginning of the following week, Booker removed Jones from his position as dispatcher and promoted the only driver who had not joined Teamsters to that position. Upon becoming dispatcher, Polk tried to get Gordon to secure the signatures of a majority of the drivers to a petition withdrawing from Teamsters, telling him that it would mean their jobs if the drivers did not get out of Teamsters, and that Gordon's job would be secure if he would get more than half the drivers to sign the with- drawal petition. By the time that it was evident that this attempt was doomed to failure, Booker, who had secured legal advice, instructed Polk to get the peti- tion which Polk had written in longhand and destroy it, because it was against the law. There is no evidence that during this initial period Booker challenged Teamsters' claim of majority representation, and it was only after Respondent had received a copy of Teamsters' 30-day strike notice that Booker wrote the letter dated March 6 in which he answered the letter of March 2, requesting recognition, stating that he would be out of town for a week and would "be glad to get in touch" upon his return. Thereafter Weigle was out of Savannah from approximately March 13 to March 25, and during this period Banks tried to "get in touch" with Weigle."' Upon Weigle's return Banks initiated meetings on March 27 which thereafter continued a little less than 3 weeks. In the meantime, on March 13, Teamsters filed a charge alleging the discrimina- tory discharge of Blackwell and refusal to bargain. On March 14, the Regional Director wrote Respondent informing it of the nature of the charge. This letter was not answered until March 28, the day following the first meeting between Banks and Weigle. The statement in that letter to the Regional Direc- tor, which Booker testified had been signed by Attorney Bright, who admittedly had asked his associate, Banks, to get in touch with Weigle, to the effect that Weigle had been asked to "submit evidence" of Teamsters' claimed majority of the "drivers" and what Teamsters desired in the way of a contract, bears out Weigle's credited testimony that he understood, as a result of that first meet- ing on March 27, that Banks was getting in touch with him as Booker's repre- sentative; that majority status which Banks did not question would be verified through a card check; and that he was being asked to submit terms and embark upon substantive negotiations. Clearly thereafter proposals were submitted and discussed while the question of majority was held in abeyance. It was not until 114 It is obvious that Booker , upon returning to Savannah , either did not try to get in touch with Weigle or that he got in touch with Weigle through attorneys who represented him The undersigned is convinced that the latter was the case , and that Weigle rightly understood that Banks was holding himself out as Booker ' s agent Since the undersigned finds that Banks was acting as Booker ' s agent , since Weigel was out of Savannah, and since Teamsters , as Weigle testified , " let things skip along" for about 3 weeks after receiv ing Respondent ' s letter of March 6 , no inference is drawn that Respondent was responsible for the 3 weeks ' delay prior to March 27. ATLANTIC STAGES 583 after Booker was aware that he did not desire to meet some of the demands of Teamsters,11 and also after a substantial number of the drivers who had signed up with Teamsters had been either laid off or discharged, some of them in violation of the Act, as is found below, that Booker insisted upon an election upon the basis of a current pay roll, disregarding the advice of his attorneys, and thereby terminating the meetings about the middle of April116 From all the evidence, the undersigned is convinced and finds that Booker did not insist upon an election because he entertained any genuine doubt as to whether or not Teamsters had originally represented a substantial majority of Respondent's drivers when it requested recognition on March 2; that recogni- tion of Teamsters on the basis of a card check, as Teamsters desired and as the undersigned is satisfied Bright and Banks advised, was refused by Booker not because of any genuine doubt as to how signatures had been secured; 114 that Booker's demand for an election was not brought about by inability to reach an agreement with Teamsters on the unit of recognition ; 18 and that whatever lack of agreement there may have been on the question of unit was not Booker's real reason for refusing to agree to Teamsters' proposal of a card check as a method for demonstrating its majority.111 In any event, it is well established as a part of the Board's decisional policy that "an employer cannot be heard to say that he entertains an honest doubt as to a union's majority status where he conducts a campaign to destroy that majority." 120 The undersigned has found above that Attorneys Bright and Banks were acting as Booker's agents and that Respondent is bound by their actions. The undersigned is convinced that Booker did secure the services of competent attorneys whose advice he finally chose to disregard because he believed Team- sters' majority had been so reduced that it probably would lose an election. 115 The undersigned does not credit Booker's evasive and unconvincing testimony to the ,effect that he was not aware of what the demands were which Weigle had submitted to Banks 118 Because of uncertainty as to precise dates, it is difficult to be sure how many of the 23 drivers who had signed with Teamsters were actually working when negotiations terminated. However, it is evident that 8 drivers, Blackwell, Waters, Phillips, Gordon, Todd, O'Neal, Flanders, and D. W. Brant (who is not a complainant herein but who had signed up with Teamsters), had been terminated by April 15 Further, lay-offs of from 3 to 20 days in duration of 5 drivers, Carter B Collins, C. W. Collins, Anderson, Houston, and Ward (who was later separated from the pay roll) commenced on various dates rang- ing from March 29 to April 6 Most of the laid-off drivers had returned by April 15, so that while more than half of the drivers who had signed with Teamsters had been either laid off or terminated before April 15, less than half had actually been separated from the pay roll permanently, and over half were back to work by April 15. 117 Booker's testimony at the hearing as to his alleged doubts about the validity of Teamsters' authorizations was unconvincing and is not credited. Respondent offered no evidence tending to show coercion in securing said authorizations 118 It does not appear that any attempt was made to clarify the unit at meetings attended ,by Booker and the undersigned is satisfied from Respondent's letter of March 28 to the Regional Director that Respondent believed that Teamsters was essentially interested in representing its drivers. 119 It cannot be said that if Booker had been willing to try to work out the details of a card check with Teamsters, Respondent and Teamsters could not have reached an agreement as to the appropriate unit Nor does Teamsters' filing of a petition constitute an admission that Respondent was entitled to an election, in view of the unfair labor practices in which Respondent had engaged prior to the filing of said petition. 12° See Matter of Consolidated Machine Tool Corporation, 67 N. L R. B. 737, 740, and the case cited in footnote 8 therein. That Respondent was engaging in such a campaign is manifest from the findings made hereinabove in Section III, A and B, as to interference, restraint, and coercion, and by findings as to discriminatory treatment of members of 'Teamsters made hereinbelow in Section III, D 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, even if it be conceded, because Bright was not at that time very active in his law practice, because Banks had not met Booker when he first started negotiations with Weigle, and because no fee was collected for services rendered by Banks and Bright, that they were therefore, as Respondent evidently contends, merely acting as friendly go-betweens, it then becomes clear that Booker did not carry out his obligation to meet with and to deal with Weigle, and that he was using go-betweens as a means of stalling off his obligation to recognize and to bargain with Teamsters, until Teamsters' demands were known, its majority reduced, and its position impaired in the eyes of his drivers. Developments following the filing by Teamsters of its petition on April 16 further establish Respondent's refusal to bargain Shortly before meetings with Teamsters had terminated, Booker had hired Thomas Smith, after learning that he was a member of Amalgamated. At that time both Booker and Banks were asserting that Respondent's drivers fell appropriately under the jurisdic- tion of Amalgamated rather than Teamsters. Later the petition dated May 16, withdrawing from Teamsters, was signed by 11 drivers. Thereafter Smith was discharged on May 31, shortly after Polk learned that Smith had been signing up drivers for Amalgamated. Smith's discharge occurred at a time when Booker was beginning to engage in meetings with a committee of drivers headed by Hilderbrand and Meeks. There is no evidence whatsoever that this committee ever represented a majority of the drivers and it is not contended by Respondent that Booker asked for any evidence that it did. This is in sharp contrast to the posi- tion which Booker took with Teamsters. It is clear that various members of that committee sounded out drivers as to what would satisfy them, reported activities in organizing Amalgamated to Booker, held a meeting at the DeSoto Hotel to advocate withdrawal from Amalgamated, stated that such withdrawal would result in increases in pay, and thereafter secured the signatures of 17 drivers to a petition dated June 3 withdrawing from Amalgamated12' Shortly thereafter Booker, with the assistance of Polk and some of the members of the committee, assembled the drivers for dinners and meetings on two successive evenings, June 11 and 12. Booker paid all the expenses connected with these dinners and, after securing the signatures of the drivers to a document which he had had prepared, stating that the drivers were "not affiliated with any union organization" and that they were requesting a meeting to discuss "wages and other related matters," Booker discussed substantial changes in conditions of employment, including increases in rates of pay, and thereafter put such changes into effect. Such a course of conduct clearly constitutes an aggravation of Respondent's previous refusal to bargain with Teamsters.122 Thus, while Respondent was fully aware of Teamsters' claim to represent its employees and also that a petition was pending before the Board, it went over the heads of Teamsters, ignored the pending petition, and dealt with a committee of drivers, without even requesting proof that they represented the drivers. Respondent took part in setting up and paid all of the expenses of two dinners and meetings with the drivers. At those meetings, substantial changes in conditions of employment were discussed ; such changes thereafter were instituted. This course of conduct cannot be 121 It is noteworthy that Booker testified that Amalgamated had never requested Respond- ent to bargain, hence Respondent was not confronted with conflicting claims of two labor organizations 122 It also shows that, with Teamsters apparently' out of the picture, Booker did not desve to bargain with Amalgamated and had raised the jurisdictional question only as a red herring for the purpose of having two unions in the picture. ATLANTIC STAGES 585 justified , as Respondent contends in its brief , on the ground that the drivers had voluntarily abandoned Teamsters because they had become dissatisfied with that organization 's ability to do its job effectively . Nor does the fact that, by the time of the hearing, several drivers who had originally signed applications in Teamsters were uncertain as to what organization they desired to have repre- sent them , free Respondent to deal directly with its employees. Under the 'circumstances of this case , the fact that some of those drivers who had signed 'eamsters ' applications thereafter signed the withdrawal petition ; the fact that they thereafter signed up with Amalgamated and later signed the withdrawal petition from- that organization ; and the fact that they finally signed Booker's letter of June 11 disclaiming affiliation with any labor organization ; cannot operate to deprive Teamsters of its clearly established majority status as of February 28. The undersigned is convinced that the apparent loss of majority status stems from Respondent 's campaign of interference , restraint and coercion, from fear on the part of the drivers as to their job security ,"' and from the unremedied refusal to bargain which had become clearly evident at least by the middle of April , about a month before the withdrawal petition from Teamsters was signed . The developments in this case illustrate all of the possibilities, open to employees frustrated in their organizational activities , which the Board described in the Harp Metal Products case.'24 In that case the Board said: Employees join unions in order to secure collective bargaining . Whether or not the employer bargains with a union chosen by his employees is nor- mally decisive of its ability to secure and retain its members . Consequently, the result of an unremedied refusal to bargain with a union , standing alone, is to discredit the organization in the eyes of the employees , to drive them to a second choice , or to persuade them to abandon collective bargaining altogether. In the light of all of the foregoing findings and upon the record as a whole, the undersigned finds that Respondent , from March 2, 1946 , has engaged in a course of conduct designed to escape its obligation to recognize and to bargain with Teamsters and that by said course of conduct Respondent has, on March 2, and at all times thereafter , refused to bargain with Teamsters as the exclusive representative of its employees in an appropriate unit , and has thereby inter- fered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 1R5 D Changes in-status of employees 1. The demotion of Ned Jones The chronology of events above related reveals the setting in which Jones' demotion from dispatcher to driver took place. On Saturday, March 2, when 121 There can be no doubt that this fear was genuine and that regardless of the justification for such lay -offs, demotions , and discharges , the drivers were aware that oNer half of those who had signed applications for Teamsters underwent changes in employment status within about 6 weeks after signing said applications. 124 11 fatter of Karp Metal Products Co., Inc., 51 N L R B 621, 624. 126 The ultimate findings, conclusions , recommendations , and the remedy herein would not be altered in material respects if the refusal to bargain were dated from some later period, such as the termination of meetings between Teamsters and Respondent about the middle of April. However , when it is clear , as it is in the instant case, that Respondent from the outset met the request for recognition with a course of conduct showiig a determination to evade that request, the refusal to bargain dates frcm the first manifestation of such a course 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jones acknowledged to Booker that he, along with of all the drivers except Polk, had joined Teamsters, Booker asked Jones which meant more to him, his union or his job. When Jones indicated that he was not in a position to answer that question, Booker said that he would call him in on Monday. On Monday morning, March 4, Booker took away the authority which Jones had exercised as dis- patcher since July 1945 and gave it to Polk. That day Jones was confined to sitting by the telephone and marking out busses which Polk authorized. The following day was Jones' regular day off. On March 6, Jones told Polk that be did not see any point in sitting around doing nothing and that he would rather "be out on the roads 126 Polk made no reply, but about an hour later Booker asked Jones if he was "ready to go back on the road." Jones said that he was. While Booker at first told Jones that he thought that he had lost his driver's seniority, Jones protested that he had understood otherwise when he "started dispatching." After some discussion, it was agreed that Jones re- tained his seniority. Jones worked the extra board for 10 days before he secured a regular run, however. In its brief Respondent contends that Jones was not demoted but was returned to his position as a driver at his own request; that he suffered no loss in pay; and that his work as dispatcher had been unsatisfactory. Jones entered Respondent's employ in May 1944 as a driver and his work in that position, both before and after his approximately 7 months' service as dispatcher, has been satisfactory. After Jones was made the dispatcher in July 1945 he continued to receive the same pay, $53.10, for a 6-day week, as he had received while driving. However, he was told that if he could do the work as dispatcher satisfactorily, his pay would be increased. Jones never received any increase during his work as dispatcher and when he returned to driving in March 1946, he accordingly received no decrease in pay. It is clear that on at least one occasion before Teamsters entered the picture, Jones raised the question of his returning to driving. According to Jones' credible testimony, about the end of 1945, approximately 6 months after he started to work as the dispatcher and after he had been informed by both Booker and Jarrott that his work had been satisfactory, Jones told Jarrott that if he did not receive an increase he would prefer to return to driving as he liked driving better than dispatching if both paid the same. While Jones did not receive an increase, he was asked to continue as dispatcher and did so.127 Booker, when first asked by counsel for Respondent what sort of a dispatcher Jones made answered, "Not too good." Jarrott, who had served as Jones' immediate superior during Jones' work as dispatcher, testified that while Jones had a little more experience as a driver and while there was room for improve- ment in his work as a dispatcher, that "he would have improved due to the fact he was interested." Booker's testimony does not indicate that he put Polk of conduct. From the facts above set forth, it is obvious that the first manifestation of this course of conduct occurred on March 2, almost immediately after Booker had received Teamsters' letter requesting recognition 120 In his testimony, Jones referred to this date as the date that he had " resigned." 127 Jarrott testified that about a month before February 28 when he left Respondent's employ, Jones asked if he could have his job back as a driver ; that he took the matter up with Booker ; that he thereafter asked Jones to continue as the dispatcher, telling Jones that he believed that Jones was doing the work of dispatcher equal to "anyone else that we had in the employ at that time" ; and that if Jones had gone back to driving it would have added duties which Jarrott was not able to take on in addition to his other work. Booker testified that Jones asked to return to driving in the latter par of 1945 and again in January 1946, and that in both conversations he told Jones he was "making a terrible mistake by not trying to apply himself to make good on his position rather than go backwards" and that Jones "agreed to go and give it another try." ATLANTIC STAGES 587 on the job as dispatcher because he had reason to expect him to work out better than Jones.i28 As to Polk's rate of pay, Booker testified that he was receiving approximately the same as Jones had received, $53 or $55 a week, and that he had made no promises to Polk of anything definite in the way of an increase but had told him that it all depended on how he did his job 129 From all of the circumstances surrounding Jones' change of status, the under- signed is satisfied that Jones did not actually resign, but after he had been stripped of his authority as the dispatcher, he indicated that he would rather return to driving than to do meaningless work in the dispatcher's office, since his authority had been removed. It is significant that when Jones reported for work on Wednesday, March 6, after having been off on Tuesday, Polk's name rather than his was "assigned to the dispatch sheet." Jones then asked Polk what was going on and whether he was still on the payroll. It was after Polk replied, "Yes, I guess so," that Jones told Polk that he did not see any point in sitting there doing nothing and that he would rather be out driving. Under all of the circumstances the undersigned is convinced and finds that Respondent demoted Jones on March 4 when Booker stripped Jones of his authority as dispatcher, put him under Polk's supervision, and confined him to clerical duties 73° The undersigned is also convinced and finds that Respondent's reason for its action was not dissatisfaction with Jones' work as a dispatcher but was rather a part of Respondent's campaign against Teamsters, thus replacing a member of Teamsters who had not indicated that his job meant more to him than his union, with the only driver who had not joined Teamsters °21 2. The discharge of H. M. Blackwell Blackwell, who went to work for Respondent as a driver in May 1945, and who was one of the drivers who initiated the activity which led to organizing Team- sters,12 was laid off for 10 days on the afternoon of March 9 by Booker, and dis- charged later that same day by Booker. The Board contends that Blackwell was laid off, contrary to previous policy, because of a flat tire ; 122 and that 128According to Booker, when Polk returned about the last week in February, after being loaned for some 6 or 8 months to another bus line , he did not know whether he should give him back his seniority as a driver So Booker told Polk "to hang around" ; put him on the pay roll ; and when Jones resigned, Polk was the first man to come to Booker's mind, so he put him in as dispatcher 129 Since this testimony was given on August 8, Polk had served over 5 months without receiving an increase in pay, although he was working without Jarrott's position having been filled and was carrying added responsibilities mentioned hereinabove It is thus evident that Jones' failure to receive a pay increase cannot be considered as demonstrating his lack of capacity for the dispatcher's position, especially in view of Respondent' s effort to economize because of its financial situation. 120 It should be noted that at the same time Booker issued instructions that the drivers be kept out of the garage and that everybody except employees be kept away from the premises. 181 Respondent does not contend that it demoted Jones to preserve its neutrality, and the undersigned is convinced that no such factor entered into Respondent's consideration in demoting Jones. Further, thte undersigned is satisfied that Jones' activity on behalf of both Teamsters and Amalgamated was motivated by his own economic self-interest. 122 The first group of Respondent's drivers to contact a business representative of a union to inquire about organizing was composed of Blackwell, Waters, and Hilderbrand. Black- well also evidently was one of the drivers who met with Weigle on March 1. Ise The complaint does not allege Blackwell 's lay-off as discriminatory, but alleges rather that the discharge which occurred shortly afterward was discriminatory. However, the circumstances surrounding Blackwell's flat tire and Booker's concern with tire costs were gone into fully at the hearing, enter into the contentions of the parties, and are considered herein as they bear upon the discharge. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blackwell was discharged under violent circumstances, during which Booker "damned the Union," attacked Blackwell's integrity, and inflicted bodily harm upon him while he was held by Polk. Respondent contends in its brief that Booker, who was particularly conscious of tire costs as an appreciable item in his operating expenses , laid Blackwell off for a reasonable period of time when he found that a tire on Blackwell's bus had been "cut to rubbons" ;" that Blackwell was "not satisfied" but returned to Respondent's premises that night although he had "no duties" there; that Blackwell and Booker "had words which eventually led to a fight"; that Booker discharged Blackwell with the statement that he could not "work a man that threatens" him; that after the fight Polk called the police who took certain action ; and that "an employer has the right to fire an employee who comes to his place of business and provokes a fight which might have had most serious conse- quences "'36 The undersigned is satisfied that no purpose would be served by attempting to reconstruct in detail the sequence of events on March 9, which led to Blackwell's discharge. As is almost inevitable in a situation involving a high degree of emotional intensity on the part of the participants, it is difficult if not impossible to determine from their conflicting stories exactly what did happen However, from his study of the testimony of Booker, Blackwell, and Polk, in the light of his observation of them as witnesses, and in the light of the testimony of Ayer, who saw and overhead certain parts of what transpired, the undersigned is satisfied as to essentially what took place.iia Further, a certified copy made from the docket of the "Police Court of Savannah" for March 11, 1946, establishes that at a trial on that date, growing out of the events of March 9, in which Booker and Blackwell were both defendants and Ayer and Polk both witnesses, a charge of disorderly conduct for fighting on the street was dismissed as to both Booker and Blackwell.1' ' 4In oral argument , Respondent contended that Blackwell had failed not only to report the damaged the but also had failed to report damage to the right front door of the bus which had been caused by an accident It would appear from the brief that this added con tention is not now advanced by Respondent Since the lay-off is considered as background of the discharge , and Respondent is apparently not pressing the alleged damage to the door as an additional reason for the lay -off, the contradictory evidence presented at the hearing as to such damage will not be set out here The undersigned , in any event , credits Black- well ' s testimony that he knew of no such damage to the right front door of his bus, and that Booker made no mention of any such damage 135 Except for the added element of alleged damage to the bus door as a factor motivating the lay-off, which was mentioned but not stressed, Respondent's position in oral argument concerning Blackwell ' s discharge was essentially that taken in its brief. Respondent makes no contention that an accident of Blackwell's for which heavy damages were awarded in a liability suit subsequent to Blackwell 's discharge , entered into Respondent's decision to discharge Blackwell and the undersigned is satisfied that said accident was not a factor in Blackwell 's discharge Further , the undersigned is convinced , because of the circumstances surrounding Blackwell 's discharge , that his services were not terminated because Booker believed that generally speaking he was not a satisfactory driver, although Booker testified that he had not been satisfied with Blackwell's services and had told Jarrott on several occasions that he did not think that Blackwell was "ever going to make the grade " Jarrott testified that it seemed that Booker's attitude toward Blackwell was that he wished that he could "get rid" of him. However, Jarrott also testified that he considered Blackwell's services as a driver satisfactory i", It should he noted that Aver's testimouv, which the undersigned is convinced is reliable, corioborates that of Blackwell insofar as Ayer had knowledge of the events, while the testimony of Polk and Booker vaiy in certain iespects Also it was apparent from his observation of Booker and Blackwell at the hearing that neither is by disposition a phleg- matic individual. la' It is evident that Blackwell and Polk ( pursuant to Booker ' s instructions ) had both called the police on the night of March 9 . In view of the dismissal of charges against ATLANTIC STAGES ' 589 Concerning the events surrounding Blackwell's discharge, it should be noted at the outset that the culmination of the argument between Blackwell and Booker, which took place in Polk's presence after Booker had shown Blackwell his tire and tube which had been damaged beyond repair, can scarcely be considered a fight, although previous events had evidently provoked Blackwell to the point where he was on the verge of swinging at Booker. In any event, whatever may have preceded, it is clear that, at the point where Blackwell, whom Booker had just called a liar,l"a was starting to take action, Polk intervened and threw his arms around Blackwell and that Booker, who had something in his hand, apparently his keys, struck Blackwell twice on the head, one blow cutting a gash which bled profusely and which a doctor thereafter "sewed up""' Blackwell did not strike Booker, who left the scene while Polk was still holding Blackwell 1ao Before considering why Booker actually discharged Blackwell, it is necessary to examine the background of events which culminated as above described, in order to determine whether or not Booker's conduct which provoked Blackwell was substantially motivated by Booker's strong resentment against Teamsters and his determination not to bargain with Teamsters There can be no doubt Blackwell, it is immaterial whether Blackwell was taken to the station in a police car, put in fail, and put under bond, while Booker was not 135 Blackwell's credited testimony on this point is corroborated by that of Ayer. While Blacki^ ell believed that Booker might have struck him with a pair of "knucks," the undersigned believes that Booker, as lie testified, had the keys to his office in his hand In any event, the undersigned is convinced that neither Booker nor Polk had any knowledge beforehand that Blackwell was going to return to the garage that night, and that Blackwell returned not to provoke a fight with Booker but to meet another driver. It was Booker who invited Blackwell into the garage to inspect the damage which had been done to the tire which by then had been dismounted 140 As to what happened at the culmination of their argument, Blackwell testified : . . I said, "I did tell you the truth about checking the tires and water, and I offered to let you verify it," and he [Booker] said, "That's a goddam lie," and when he did, why, of course I felt like fightin' him. Any man with-that had any self regards at all-so Mr. Polk grabbed around me. He said, "Blackwell, don't you-all start any fightin' " Grabbed my arms around me ; squashed my arms down to my body. "Don't you start any fight. You will get yourself in trouble," and when he did, Mr Booker knocked me with a pair of "knucks" or something on the head twice, and then Mr Booker ran back in the shop . . . Mr Booker told me after those licks were passed that I was fired, and not to ever put my foot on Company property again . . Ayer, who was putting gas in the rear of a bus in front of which Booker and Blackwell were arguing as they stood almost in the back door of the garage, testified that he could hear them and could see Polk who was standing to one side watching and that he heard Blackwell tell Booker that he had checked his tires at Blichton, which is about 23 miles from Savannah. As to the actual "fight," Ayer testified . He [Blackwell] told him [Booker] he had checked the tires and water and the oil, and that lie could call the man in charge of the station there and he would verify the fact, and Mr. Booker called him a liar and I saw Mr Polk jump forward. So I dropped the hose that I was gassing with and ran to the front of the bus and when I got there, why, Mr. Polk has his arms draped around Mr Blackwell and Mr Booker had just swung. I didn't see the start of the swing. I saw the ending of it. And two big bumps jumped out on his head and one of them was a long slit. Polk testified that Blackwell threatened Booker ; that Booker said that he could not work a man that threatened him ; that then the fight started ; that Blackwell made the first swing ; that Booker jumped back ; and that he jumped in between them. As to what occurred in the hack of the garage after to damaged tire had been in- spected and there had been considerable argument, Booker testified : He [Blackwell] told me that I was very unfair or something like that-words to that effect, and I told him I had said all I had to say and the best thing for him to do was to go leave us alone. And I told him that three different occasions in the back of the shop, and the last time he swung at me. And I already had the keys to my office door in my hand and I swung back at him and Polk jumped in and got in between us and broke it up. . 590 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD that Booker and Polk had been seeking to determine which of. the drivers had initiated organizing activities, and Blackwell was one of the drivers who had been responsible. Booker's strong feeling against whoever had been responsible for starting Teamsters was expressed to Ayer when Booker stated that if he knew who started it he could kill him. 'That Booker was looking for a pretext to discharge whoever had started- Teamsters is further shown by Polk's state- ment to Gordon, set out in an earlier section of this report, that Booker believed that Meeks had started Teamsters and that Booker had told him [Polk] that if he would pick a fight with Meeks, he [Booker] would fire Meeks. While there is no direct evidence that anyone in the meantime had informed Polk or Booker that Blackwell was one of the drivers who had taken leadership in activity which led to forming Teamsters, in view of the persistent attempt which Re- spondent was making to track down those responsible, the smallness of Respond- ents' staff, the evident subservience of some of the drivers to Respondent's wishes, and the actual leadership which Blackwell had taken, the undersigned believes that it is reasonable to infer that Booker did know on March 9 that Blackwell was partly responsible for initiating organizational activities. But even if it be conceded that Booker had no such specific information, Booker's conduct on March 9 before Blackwell's discharge, which was highly provocative in two respects, firstly, in laying off Blackwell for 10 days because of a flat tire and, secondly, in remarks made to Blackwell after Booker had showed him the dis- mounted tire that evening, was evidently motivated by resentment against Teamsters. These two matters will now be considered. About 4: 30 on the afternoon of March 9, after discharging his passengers at the bus station, Blackwell brought his bus to the door of the garage'' When Black- well left his bus, one of the dual tires on the rear was flat 12 Blackwell was not aware that one of his four rear tires was flat and made no report of it on the defect card which he left in his bus.143 When Polk, contrary to practice, took the defect card out of Blackwell's bus, Ayer heard Polk make a remark to the effect that that was one defect card which he was going to keep. Ayer did not thereafter see this defect card, which Polk took to Booker . Blackwell's flat tire was the second flat tire on an incoming bus that day. The driver of the earlier bus was not disciplined, although it later proved that the flat tire on that bus was in worse condition and had evidently been run flat farther than had Blackwell' s tire.14" 14i The policy of requiring that busses be left at the door of the garage rather than taken inside had been instituted a few days earlier. 142 The bus had four rear wheels, two on each side. 193 Ayer testified that when one of four paired rear dual tires is flat and the bus is not driven rapidly, the driver can be unaware of such a flat tire. Defect cards are used by drivers to report defective conditions when leaving busses at the end of runs, so garage crews can make repairs. Blackwell's card for this run, which is in evidence, did not con- tain any notation of a flat tire in Blackwell's handwriting. However, it has notations, over Polk's signature, that a flat tire and a front door damaged by accident were not reported 149 Ayer, who saw both tires and the tubes after they had been dismounted, testified credibly that while both casings and tubes were damaged beyond repair, the condition of Blackwell's flat indicated that it could have been damaged while running the 3 or 4 blocks between the bus station and the garage, and that the condition of the other flat indicated that it had run at least 2 miles. Booker's testimony about the first flat tire, and the failure to discipline the driver responsible, was particularly unconvincing. He first testified that there had been a tire "burned up" at a cost of $125 either that day or 2 or 3 days previ- ously He later testified that the tire could have been on the spare or not on the bus at all and that he did not remember where it came from. Still later Booker testified that he noticed the tire early that morning but had not been able to find out who had burned it up. The record does not identify the driver of the other bus, or show whether he had noted the flat on his defect card. ATLANTIC STAGES 591 It should also be noted that Booker was tire conscious at the time and was making an effort to decrease his tire cost per mile which he considered to be out of line - 145 When Polk followed the unusual procedure of removing Blackwell's defect card, he took it directly to Booker. Booker then sent Polk to get Blackwell. When Blackwell returned, Booker told him that he had not reported his flat tire., Blackwell said that he did not know that he had had a flat tire. Booker pointed out the flat tire which had not yet been dismounted ; told Blackwell that it was the second flat tire that had come in that day ; and thereupon laid Blackwell off for 10 days. Blackwell asked Booker, "Who else got time off?" Booker replied that that matter did not "come before" Blackwell148 The undersigned is con- vinced and finds that no driver had ever previously been penalized in connection with having had a flat tire.141 Shortly after 8 o'clock that evening, Blackwell and another driver, Anderson, returned to the garage to pick up Waters who was scheduled to complete a run about 8 o'clock. At Blackwell's request, Polk called Waters. As the three drivers were about to leave, Polk asked Blackwell if he had turned in his driver's report for the run completed that afternoon, explaining the new policy which required that a driver's report be submitted upon completion of a run before leaving the office. Blackwell said that he had left his report in his bag and would bring it in the next morning ; Polk indicated that that would be satisfac- tory 148 Booker, who in the meantime had come out of the dispatcher's office, asked Blackwell if he had seen the tire which he had "burned up." Blackwell said that he had not as he had left that afternoon before it had been dismounted. Booker asked if he would like to see it and when Blackwell said that he would, the three went into the garage to look for it. When they finally found it in the tire room, it was obvious upon examination that both the tire and the tube had been damaged beyond repair 149 After examining the tire, Blackwell, Polk, and Booker went to a place near the front door of the garage.10 During an argument which developed between Blackwell and Booker near the front door, Booker stressed the fact that his tires were personal property, that he did not get them from a tire contractor, and that he could not afford to lose -money through such damage to tires. Finally Booker said to Blackwell, "Just ,because you boys think that you are members of the Union, that gives you the right to tear up my equipment and think that you can get by with it.9' Booker 145 The undersigned credits Respondent 's evidence that Booker was trying to reduce the cost of tires which he was then purchasing himself. Respondent has since secured a con- tract with a tire company which now furnishes tires at a rate per mile , lower than what it was then costing Respondent to furnish its own tires 148 The findings as to the conversation between Blackwell and Booker are made on credited testimony of Blackwell who denied that Booker made any mention of any damage to the frost door of the bus. Booker testified that he did mention such damage. 141 Jarrott testified that he had never known of any driver being laid oft or discharged for having a flat tire There is no evidence that any driver , including the driver who came in earlier on March 9 , was disciplined because of a flat tire. 148 Blackwell , in fact, gave his driver's report to Polk later that night after the "fight." These drivers ' reports cover such matters as number of passengers and fares collected during runs , and are separate reports from the defect cards discussed above, which cover the condition of the busses. 149 Booker testified that the tube cost $12 and the tire cost $74. 159 There is no substantial conflict as to what happened that evening up to this point. Findings which follow as to what happened from the time Booker, Polk , and Blackwell left the tire room until the time of the so-called fight are made upon the undersigned 's analysis of conflicting testimony of Blackwell , Booker and Polk. In general , the undersigned con- siders Blackwell 's testimony more reliable than that of Booker and Polk. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also said that he'did not i`give a goddam about the Union" or anything that it stood for and that those who ran it were "nothing but a bunch of goddam sons-of- hitches." Blackwell insisted that there had been flat tires before Teamsters or- ganized ; that he did not think anyone was taking advantage of membership in Teamsters to try to damage Booker's property ; and that he had checked his tires, oil and water at Blichton and that Booker could verify that by asking the oper- ator of the filling station there. Booker, who admittedly never attempted to verify Blackwell's statement that he had checked his tires at Blichton, called Blackwell "a goddam liar," and told him that he hoped he did not like it. Black- well said that he had told him the truth and had offered to let him verify the statement and that since Booker was making it "a personal issue, as man to man, that's fightin' words with me." Booker asked Blackwell if he wanted to fight him. Blackwell said that he did if the statement stood. Booker replied that Blackwell could come out in the alley with him anytime he wanted to go 161 Black- well, Booker, and Polk then walked to the back door of the garage. Upon arriv- ing, Booker said, "I am back here at the alley, now. What are you going to do about it?" When Blackwell said that they were still on Booker's property wz Booker said in effect that he regretted that an employee of his would have to leave under those conditions 153 Blackwell again asserted that he had told the truth about checking the tires and water and had offered to let Booker verify it. It was after Booker again had called Blackwell a liar that the fight described above took place. Without condoning Blackwell's loss of temper, although there was provoca- tion, the undersigned is convinced and finds that, by his actions on March 9, described above, Booker severely provoked Blackwell and discharged him for behavior which Booker, knowing_Blackwell's temperament, had every reason to expect. It is true that Booker's lack of knowledge that Blackwell was re- turning the evening of March 9 indicates that the details were not premeditated. On the other hand, the way in which Polk that afternoon took Blackwell's defect card to Booker, who thereupon laid Blackwell off for 10 days because of his flat tire while he had not penalized another driver who had had a fla, tire, warrants a finding that Booker was discriminating against Blackwell because he had joined and assisted Teamsters. In view of this discriminatory treatment, which Booker later aggravated by insults to Teamsters and repeated insults to Blackwell's personal integrity, Respondent cannot rely upon the quite human response of Blackwell to such treatment as a pretext for termi- nating Blackwell's employment. Under the conditions in this case, it is im- material whether the discharge took place before the so-called fight, because of Blackwell's "threat," that is his expression of a desire to fight Booker, as Booker testified, or after Booker's blows had been struck, as Blackwell testi- fied. In either case, Blackwell's reactions had been provoked by Respondent's conduct, and the undersigned is convinced and finds that a major factor in producing that conduct was Booker's determination to discourage organization of his drivers and to avoid dealing with Teamsters, and that Blackwell's lay-off Im According to Booker , at this point Blackwell said that if he wanted to make something personal out of it to come out in the lane and have it out with him and that he said, "Blackwell , you understand I can't work a man that threatens me, and the best thing you can do is to leave and never come back any more." ^' The lane behind the garage is part of Respondent ' s property 163 Blackwell 's testimony as to what happened at this point is that Booker said , "I regret the fact that this had to come to an employee of mine ; that it would have to go ungra- ciously." Booker and Polk testified that Booker told Blackwell that he could not work a man that threatened him. ATLANTIC STAGES 593 and discharge fall within that pattern. Accordingly the undersigned finds that Blackwell was discharged on March 9 because he joined and assisted Teamsters, as alleged in the complaint. 3. The termination of Barney Waters' employment Waters, who had not had previous experience as a bus driver, went to work for the Respondent as a driver about October 15, 1945. He displayed interest in organizing the day he first worked for Respondent when he told Hilderbrand, who asked him what he thought about organizing, that lie thought they needed a union. Thereafter the matter was discussed from time to time until it seemed- in February that "everybody wanted to get into" an organization. Hilderbrand, Blackwell, and Waters then went to see a business representative of a union who suggested they get a charter. They did not believe they had a sufficiently large group to justify getting a charter. Waters, Jones, and Rhoden later went to see a business agent of another union who suggested that the local of Team- sters might be the appropriate one for them. Orin the, , morning of February 27, Rhoden and Waters went to the office of Robert Sheahan, president of Local 897, and secured the application blanks for Teamsters. On March 1, when six of Respondent's drivers met with Weigle, Waters was evidently one of the drivers present. It is clear that Waters was one of the drivers most active in forming Teamsters. In its brief and oral argument Respondent contended that Waters' trouble was "uncontrolled laziness" ; that lie was continually asking for Sundays off ; that lie wanted to work only 6 days a week while Respondent was operating on a 7-day basis; that he had "already messed up one schedule by not reporting" before the March 24 absence which precipitated his termination; and that Waters never did ask Booker "for his job back "'51 The previous schedule, which Waters had "messed up," was not on Sunday, but was on Monday, February 25. Waters had overslept his first run from Savannah to White Bluff which was to leave at 7: 10 a. m 155 Upon awaking, Waters got in touch with Jones who was then the dispatcher. Jones arranged to take care of Waters' other runs for the day and let him have the rest of the day off.' 56 During the latter part of the weeks preceding Sunday, March 10, and Sunday, March 17, respectively, Waters, who wanted to visit his father who was sick, asked Polk for those Sundays off in order to visit his father, but did not explain that his father was sick. On the occasion of each request, Polk told Waters that he could not let him off because the extra schedules required to take care of an international conference left him with no extra drivers to take Waters' place. Waters worked both Sundays. On Thursday, March 21, Waters again asked to be off the following Sunday, March 24. Polk more or less ignored Waters who then said that he was taking "'Waters had an accident on February 16 and a second accident on March 11 He at- tributed these accidents to the poor condition of his brakes He was not penalized for the accidents except that, as was the custom, he lost his 5-percent safety bonus for the weeks during which the accidents occurred . These accidents do not appear to have had any connection with Waters' termination 'ae Since sometime in January, Waters had been working 7 days a week, making 3 round trips daily between Savannah and White Bluff . He left Savannah at 7 • 10 a. in and re- turned at 10 a in on his first trip . The second left at 1 : 30 p. in and returned at 3 p. M. The third left at 5 : 30 p. in and returned at 8 : 05 p in. ise There is no evidence that this matter was mentioned a month later when Waters was terminated Waters testified credibly that it was not. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunday off, explaining that he had been sick and felt that he needed a purgative- On Saturday, March 23, Waters went to his doctor who told him to get some "purgative medicine." Waters explained the bus schedule which he operated, and the doctor told him that he could not very well operate it and take the medicine. Saturday evening, about 8 o'clock, after he had returned from his last run, Waters told Polk, in the presence of Boyd, that he would not be able to work the next day. Polk said he was expecting him to be there Waters explained that his doctor had told him to take the day off. Polk insisted that he expected Waters to be at work the following morning.16T Waters did not report for work Sunday, March 24. At the hearing he pro- duced a statement on the letterhead of C. R. A. Redmond, M. D., 11 West Jones Street, Savannah, which was addressed "TO WHODI IT MAY CONCERN" and which read : This is to certify that Dir. B. W. Waters was ill Sunday and had to be away from his work. This certificate was signed with Redmond's name "by E. Upchurch, Sec't," and was dated March 25, 1946. The undersigned is satisfied from all of the evidence that this certificate was obtained on Monday, March 25, after Waters had returned to work as discussed below, that Waters never attempted to show it to any representative of Respondent, and that neither Polk nor Booker ever asked Waters if he had such a medical certificate. On Monday morning, March 25, Polk marked up J. E. Shaw on the dispatcher's sheet to take the White Bluff run which was regularly driven by Waters. When Waters reported to sign in and found Shaw signed on the dispatcher's sheet to his regular run, he asked Shaw where Polk was. Shaw said Polk was out of town. Waters then asked Shaw whether either Polk or Booker had told him that he [Waters] was laid off or fired. Shaw said he had been told only to come in and take Waters' run. Waters insisted that he was off the day before because he was sick and that since he had not been told he was laid off or fired he was going to drive the schedule. He told Shaw that if he wanted to come along that was his privilege. Waters drove the first round trip ; Shaw rode with him. When they returned about 10 o'clock, Waters saw Polk. Polk told Waters that Booker had said for him not to take the run any more "until after he talked to you." Waters asked where Booker was. Polk said that he was out of town, and would he back the following day. Waters said that he would be down the next day. The next morning, about 8: 30, Waters went to the dispatcher's office and asked Polk if Booker was in. Polk said that he had not come in yet. Later, about 10: 30, Waters spoke casually to Booker who was in the dispatcher's room, and there- after asked Polk when Booker wanted to see him. Polk said that Booker was busy, but would see him, and to just "stick around." Waters remained until 7 o'clock that evening. Polk did not inform him that Booker was ready to see him. While Waters was at the office each day the rest of that week, Polk never did inform him that Booker was ready to see him. Waters testified credibly as to the foregoing attempts to see Booker, and that he was expecting Polk to in- form him when Booker would be ready to see him. The undersigned finds that Waters was following reasonable and customary procedure in awaiting the in- 167 The above findings as to Waters ' request for Sunday off are made on credited testi- mony of Waters . Boyd was not called to testify, although available to Respondent. Polk testified that he told Waters, who had said that he was going to take some medicine, that he was going to depend on him to take his runs Sunday , unless he had a doctor 's certificate to show that he was ill. ATLANTIC STAGES 595 structions of his immediate superior , Polk, as to when Booker desired to see him.'"s After Waters left Respondent 's premises about 5 Saturday afternoon without having seen Booker, he telephoned - Polk about 7 o'clock that evening and asked if there was any check for him.' "0 Polk said that there was not. Waters asked when Booker wanted to see him Polk replied , "Well, Waters , I don't think he wants to see you." Waters then said he guessed "that's that" and Polk replied that he "guessed it was ." Waters did not thereafter return to the premises. He has never turned in his equipment or been asked to do so, and has not received his final pay. Respondent ' s Rule 116, entitled " Sickness ," reads as follows : In case of sickness or other reason you are unable at any time to appear in time to take out a run notify the dispatcher in time to enable him to have a relief driver on the job early enough to make the run. From the above -detailed account of developments , the undersigned is con- vinced and finds that Respondent 's contentions as to Waters ' separation are without merit ; that it knew that Waters was claiming illness as his reason for wanting off Sunday, March 24; that Waters' statement to Polk on Saturday evening, March 23, constituted reasonable compliance with Respondent's rule concerning sickness ; that Waters had.been absent because of illness, and could have demonstrated that fact if Respondent had been interested in knowing whether Waters had been ill ; and that Polk ' s removal of Waters from his run on Monday morning, March 25, and his failure thereafter to let Waters know when Booker would be ready to see him was tantamount to discharging Waters as of March 25. In considering Respondent 's motive, certain elements should be noted . Waters had been with Respondent over 5 months . Jarrott testified credibly and the undersigned finds that his services as a driver had been in general satisfactory. Further, it was Respondent's policy to train its own drivers , and since , as Booker testified , it cost $500 to train a bus driver , from the "monetary standpoint" Respondent wanted to make a bus driver of a man if it was "humanly possible." In addition , Waters was clearly one of the leaders in forming Teamsters During the week when Polk failed to let Waters know when Booker would see him, Waters served as one of a committee of six drivers which met with Weigle to draw up the demands, after the first meeting between Banks and Weigle.10' For reasons stated above in the case of Blackwell , the undersigned infers and finds that Respondent had learned that Waters had taken leadership in forming Teamsters . In any event , it is evident from the pattern of Respondent's conduct that it was availing itself of pretexts to rid itself of members of Teamsters and that it knew that Waters was a member because Jones had told Booker that all of the drivers but Polk had joined . From the record as a whole, the undersigned further finds that the reasons which Respondent advances for the separation of 'be The testimony of Driver P J. O'Neal, that he waited from approximately 9 o'clock on the morning of April 8 until approximately 7 o'clock that evening before Polk took him into Booker 's office after telling him that Booker wanted to see him , indicates the practice of drivers in awaiting Polk's instructions as to when they were to see Booker. 169 Waters had been paid only through Thursday of the preceding week and pay was due him for Friday and Saturday 160 This committee was composed of Barney Waters, Olin Todd, Bennie Meeks, F. H. Rhoden, W. H. Alexander, and J E Smith. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waters are pretexts , and that Respondent 's real reason for its behavior toward Waters, which has hereinabove been found to be tantamount to discharging Waters on March 25, was his membership in and activity in behalf of Teamsters. 4. The termination of Thomas M. Smith's employment From the chronological standpoint, the substantial number of lay-offs and terminations which occurred during April and early May, most of them shortly before the negotiations between Respondent and Teamsters terminated, should next be considered. However, since these alleged discriminations involve a number of issues and defenses common to two or more of them, which makes some groupings possible, the remaining two separations which are to be considered individually, those of Thomas M. Smith and C. W. Collins, will be taken up now, out of chronological order. Thomas Smith, who was known to Booker to be an experienced driver and a member of Amalgamated, was hired by Booker about the second week in April to replace a member of Teamsters whose employment had been terminated, in spite of the fact that Booker had previously told Smith that he did not hire experienced drivers. During the then pending negotiations with Teamsters, Booker had expressed to Banks, and Banks had expressed to Weigle, the opinion that Respondent's drivers came under the jurisdiction of Amalgamated rather than Teamsters. A few days after he had hired Smith, Booker broke off nego- tiations with Teamsters by demanding an election. About a month after Smith was employed, a petition dated May 16 was signed by 11 of the drivers still employed who had joined Teamsters. It is evident from Booker's testimony that he believed that his receipt of these resignations in combination with the separation of members of Teamsters which had occurred earlier, destroyed Teamsters' majority and freed him to deal directly with his drivers in Thus assuming, after receiving the withdrawals of May 16 from Teamsters, that he was under no obligation to deal with Teamsters, Booker proceeded to open negotiations with a small committee led by Hilderbrand and Meeks It was at this juncture that Amalgamated's organizational campaign under Smith's leadership entered the picture, temporarily interrupting Booker's direct dealings with the drivers. As has been more fully detailed above, Smith arranged with Polk to trade runs with another driver so that he could be off work for 2 days about the last of May. During those 2 days, Smith opened a campaign for Amalgamated which resulted in signing up about 20 of Respondent's drivers, who paid $2 as initiation fee and the first month's dues. About May 31, Polk saw Smith's signature on an Amalga- mated receipt which Smith had given Osborne. Shortly thereafter, about mid- night on May 31, Polk discharged Smith, by informing him that as of that night he was "not employed with the Atlantic Stages any more." When Smith insisted 261 In explaining why he believed that he was "at liberty to operate and deal with my men directly" after receiving the above petition, Booker testified . I also knew that I had discharged quite a few men on accident record and on-for various reasons , including shortage on checker 's reports prior to the time this petition was forwarded to me by mail. When asked whether he knew if any of those remaining in his employ who had joined Teamsters had not signed the withdrawal petition, Booker further testified : I don't know definitely whether they were all out, or not, but I figured the majority of them was out from the hearsay that I had. ATLANTIC STAGES - - 597 on knowing why his services were being terminated, Polk said, "Just for the things you did the two days you were off work.s 162 In substance, Respondent contends in its brief that Smith was not discharged ; that Polk told him to see Booker ; that Smith had never done so; and that in any event Smith "was not entitled to remain in the employ" of Respondent and "would have been discharged" on the basis of a checker's report for the last run which Smith made on May 31, as it was Respondent's policy to discharge all drivers immediately when a checker's report showed a shortage Booker's testimony that lie had checked up on Smith and had decided that Smith was not suited to serve as the instructor in a training program for drivers and hence had asked Polk to send Smith to him so he could tell Smith that he was not "going to make the grade on his job" was not convincing.i61 As has been found above, the undersigned is convinced, contrary to Respondent's contentions, that on May 31 Polk did not ask Smith to see Booker, but that shortly after Polk had seen Smith's name signed to an Amalgamated receipt he told Smith that he was through at Atlantic Stages 164 The undersigned is also convinced that when Smith asked Polk for the reason for his termination, Polk bluntly told Smith that he was being discharged for what he had done during the 2 days which he had arranged to be away from work, and that Polk meant by_that reference, signing up drivers for Amalgamated. From Smith's credited testi-. mony, it is clear that during the week following May 31, Smith talked with Polk on several occasions and saw Booker briefly on one occasion; that no explana- tion was made to him that his services would not be needed because he would not work out satisfactorily as an instructor ; that nothing was said about a checker's report ; that Polk did not ask Smith if lie had seen Booker ; and that on those occasions Polk treated Smith as being no longer an employee of Re- spondent. From all of the evidence, the undersigned is convinced and finds that Respond- ent discharged Smith on May 31, 1946, because Smith, after Respondent be- lieved that it was in a position to deal directly with its drivers, upset Respondent's plans for direct dealings by signing up its drivers in Amalgamated It is true that when Respondent hired Smith during the first part of April, it did so only after it was assured of Smith's membership in Amalgamated. Respondent's in- terest at that tiiiie, however, was to avoid recognizing Teamsters. Presumably Smith, a member of Amalgamated, which organization Respondent was then con- tending should have jurisdiction of its drivers, would serve to divert some strength from Teamsters in the event Respondent was successful in securing an election. However, over a month after Smith was employed and some 2 weeks before he was discharged, Booker received the withdrawal petition from Teamsters and was convinced thereupon that, with Teamsters taken out of the 162 The quoted material is from credited testimony of Smith Polk ' s testimony that he did not discharge Smith but merely told him to see Booker before he went back on his run, as Booker had requested , is not credited. 10 While Smith had taken a few student drivers with him from time to time , Respondent's G. I. driver training program had not been placed in Smith's charge by the time of his termination Smith had been working as a regular driver on a regular route, and desires to be reinstated as a regular driver. Respondent 's G. I. training pi ogram was in charge of Meeks at the time of the hearing. From Meeks' testimony, it would appear that he may have been given " the job training these G I ' s" several weeks before Smith ' s termination 164 It is noteworthy that Booker testified that, after he had started negotiations with the drivers' committee headed by Meeks and Hiiderbrand, Meeks told him that Amalgamated was organizing the drivers. 798767-49-vol 78 39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picture, he could deal with his employees directly. Thus Smith's original use- fulness to Booker in diverting strength from Teamsters no longer existed. Fur- thermore, when Smith signed up Respondent's drivers for Amalgamated, he cre- ated a new threat to Respondent's plan to thwart organization of its drivers so that it could deal with them directly. This new threat was met promptly by Smith's discharge. Thereafter the drivers withdrew from Amalgamated and, direct dealings were resumed. Everything considered, the undersigned finds that Smith was discharged by Respondent because he assisted Amalgamated and en- gaged in concerted activities. As to the checker's report of May 31, now advanced by Respondent on the question of reinstatement, Respondent states in its brief, "Admittedly, this re- port came in after Smith had left the employment of Atlantic Stages." The undersigned is convinced that no checkers' reports entered into Respondent's de- termination to discharge Smith. The undersigned is further convinced and finds that under the conditions of this case checkers' reports which Respondent has since received concerning Smith cannot now be advanced as a bar to Smith's reinstatement 166 5. The discharge of C. W. Collins C. W. Collins was discharged on June 19188 While Collins had signed a Team- sters' application on February 27, there is no evidence that he had been a leader in forming Teamsters or had been active in signing up other drivers. About a month before his discharge, Collins signed the withdrawal from Teamsters dated May 16, a copy of which was forwarded to Respondent. While Collins did not sign the withdrawal from Amalgamated, there is no evidence that he had ever joined Amalgamated, or that Respondent knew whether or not he had done so. However, just a few days before his discharge, Collins did sign the statement presented by Booker at the dinner of June 11, affirming that he was not affiliated with any labor organization. Further, it is evident from the course of events heretofore set out, that Booker, at the time he discharged Collins, believed that he had consummated his campaign against Teamsters to the point where it was eliminated from the picture, that the drivers had also withdrawn from Amal- gamated, and that he was free to deal with his drivers directly The complaint alleges that C. W. Collins was discharged and refused reinstate- ment because he joined and assisted Teamsters and engaged in concerted activi- 166 Respondent introduced in evidence two separate checkers ' reports, which show that two checkers , following procedures explained more fully below, boarded Smith's bus at Airport Road at 9 • 44 p in on May 31 and arrived at Savannah at 11: 43 p in The two reports , which are substantially alike, contain auditor's notations , "2 passengers short, no pass for Driver Rhoden " Violet Langford , who made one of the reports and who later audited both of them , testified in substance that she did not know what kind of fares, if any, those two passengers marked "short" had paid ; that there were two more passengers on the bus when she got on it than the driver ' s report accounted for ; and that the dis- crepancy could have been due to a number of causes, including Driver Rhoden bringing two passengers with him from another bus which had broken down , although such a procedure should have been shown by a transfer . For reasons which appear below where checkers ' reports are explained more fully, the undersigned does not believe that the audit on the reports of Smith's last run establish that Smith was appropriating Respondent's funds to his own use. Hence , the undersigned finds that these reports do not bar Smith's reinstatement, whatever Respondent may have believed about them upon their receipt after it had already discharged Smith 166 Collins ' testimony shows he was discharged on June 19 rather than on June 17, as alleged in the complaint. It was stipulated that Teamsters withdrew its petition on June 17, but there is no evidence as to whether Respondent learned of this withdrawal before or after Collins ' discharge. ATLANTIC- STAGES 599 ties. In oral argument and in its brief, Respondent bottomed its contention as to Collins' discharge on checkers' reports made during the second check and, on an alleged confession made to Booker in the presence of W. W. Proctor, However, Booker testified that he discharged Collins because of checkers' reports, and because of a letter which he had received from a Sheriff about Collins having, been arrested for speeding.187 Booker also testified that Respondent's rules prohibit such violations of law. Rule 7 lists as a driver's first responsibility, "The safe operation of the bu§." Rule 13 requires that any driver "arrested or given a citation for violation of law while on duty for any cause whatsoever, shall immediately report such, arrest and the cause thereof." Admittedly, shortly after midnight on the morning of Saturday, June 15, Collins was arrested for speeding; he failed to report this arrest. About June 17, Booker received a letter dated June 15, from F. B. Barker, Sheriff, Wheeler County, Georgia."a On June 18, Booker discussed this letter with Collins who visited the Sheriff that day and paid a fine of $15, out of his own pocket. The following day, June 19, Booker discharged Collins after a conversation in which the letter from the Sheriff, checkers' reports, and Collins' attitude were all men- tioned by Booker. From the testimony of Collins and Booker as to the speeding incident, the undersigned is satisfied that Booker reasonably believed from the above letter and from his discussion with Collins, that Collins had been in substantial error in his conduct on this matter. As to the role of the checkers' reports, the undersigned is convinced from his study of the checkers' reports in evidence,1AO and from the testimony of Collins, Booker, and Proctor as to discussions about Collins' alleged shortages, that Booker could have believed that Collins had been dishonest in handling funds."' 367 While Respondent 's counsel stated during Collins ' testimony about his arrest that Respondent did not intend to use that as "any excuse " for Collins ' termination , counsel for the Board asked that the line be permitted as the subject had been brought up at the time Collins was discharged. The matter was fully litigated and the undersigned credits Booker's testimony that the speeding incident was a matter which entered into his consideration in discharging Collins. 168 The Sheriff 's letter read as follows : On the Night of June 14th, 1946, the County Police Caught and preferred Charges against C W. Collins one of your Buss [sic] Drivers, who was driving Bus No. 57 Through Wheeler County. This man was turned over to me. I let this man go for the time being due to the fact that he had passengers on the buss, [sic] and I wanted to show your Company the proper curtisy. [sic] If you will have this man come in and answer to the charges of Spending [sic] he can settle it in that way. If you do not have him do this I will have him picked up and brought in. I think it will save some time and trouble to handle it in this; matter [sic] This man was driving 70,miles per hour. Let me hear from you at once. 169 There are three such reports in evidence, two of which were made by different inspec- tors and covered the same run on May 29, while the third covers a run on June 9. The audits on the two reports for May 29 show three cash fares short, while the audit on the report for June 9 shows five cash fares short or cut short and one passenger short. Checkers' reports are explained more fully below. no However, the undersigned does not believe that the evidence warrants finding that Collins actually had been dishonest or that he admitted having been dishonest by offering to pay Booker "three times the value" of anything Booker could show him he was short by a comparison of his driver's reports with the checkers' reports. As is discussed more fully below, Booker failed to make this comparison for Collins just as he had failed to do, in cases which had come up previously, and which are discussed hereinbelow. However,, in contrast to Booker's, conduct on those previous occasions, he did not attempt to get Collins to sign a confession and resignation in order to avoid prosecution , but discharged 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collins, who was employed as a driver -by Jarrott on June 6, 1945, had pre- v}ously been employed as a deputized guard at a, shipyard. Jarrott, who char- acterized the work of many of the drivers as satisfactory, testified that Collins seemed to have the "temperament of an officer, rather than a bus driver" and was "just a little bit cocky" and that in the course of time it was working out "to a great extent." Collins' own testimony as to his behavior when arrested confirms Jarrott's opinion of Collins as "cocky." Everything considered, it is apparent that two matters occurring just before Collins' discharge, his arrest for speeding and the receipt of checkers' reports showing shortages, constituted reasonable grounds for discharging Collins. Further, the situation at that time, as pertains to dealings with the drivers, does not warrant any inference that Booker was also motivated by a desire to discourage membership in Teamsters. Accordingly it is recommended below that the allegation as to Collins' discharge be dismissed. 6. The lay-offs and terminations during April and- early May, 1946 (a) General considerations The remaining allegations of the complaint as to five lay-offs 141 and seven termi- nations,"' most of which occurred while meetings between Teamsters and Respond- ent were in progress, are being treated in this section of the report because the undersigned is convinced, from his study of the extensive and contradictory evi- dence concerning the various circumstances surrounding these alleged discrimi- nations, that the crucial factors in some of these cases were not the shortcomings of the individual drivers, but rather Respondent's hostility to Teamsters, and its desire to discourage continued loyalty to Teamsters and to avoid bargaining with 'Teamsters. The undersigned believes that, when viewed in the total setting of Respondent's course of conduct, some of these shortcomings for which Respondent contends such a substantial number of its drivers were laid off or terminated, in so short a time during its meetings with Teamsters, prove to be pretexts rather than the true causes of what transpired. The specific reasons which Respondent assigns for the lay-offs and terminations during April fall into two main groups, with certain exceptions : accidents and checkers' reports.l71 Each of these two groups and the contents pertaining thereto are now considered. Lay-offs associated with accidents will be taken up first. (b) Lay-offs associated with accidents For some time, Respondent, with its policy of hiring inexperienced drivers, has had a high accident rate. While the difficulty of keeping old equipment in good operating condition during the war has undoubtedly been a factor, the drivers Collins. In like manner, about June 19, Booker also discharged H. M. Jones, who had entered Respondent's employ after Teamsters had organized and had not joined Teamsters, when checkers' reports on Jones showed shortages ; Booker did not attempt to get Jones to sign a confession and a resignation. 171 The names of the drivers and the dates on which it is alleged they were laid off are : C B. Collins, Jr , April 3 ; L D. Anderson, April 3; C. L. Houston, April 6 ; Ned Jones, April 7; and C. W. Collins, April 35, all in 1946. These dates are hereinafter conformed to the proof. 172 The discharges alleged and the respective dates alleged are : W. J. Ward, April 6; Emmett Phillips, Jr., April 8; Perry W. Gordon, April 8; W. T Flanders, April 13; Olin Todd, April 15; P. J. O'Neal, April 15; and C. B. Collins, Jr., April 24, all in 1946. These - dates are hereinafter conformed to the proof. 178 Exceptions in the cases of Collins and Ward are discussed below. ATLANTIC STAGES 601 also have been at fault. Jarrott testified credibly that Respondent's safety record was "not at all good," and that while "drivers were not at fault all the time," he considered "carelessness" on the part of drivers to be "the biggest factor" in Re- spondent's poor safety record. Jarrott also testified that he knew that Respond- ent's income during 1945 had been reduced and that there was the possibility of an increase in its public liability insurance rates. About the end of 1945 or early in 1946, new shop practices to improve the mechanical condition of the busses were instituted and explained to the drivers by Booker. In his testimony, Booker referred to these practices as a preventive maintenance program. Sometime afterwards, a representative of Markel Service, Incorporated, which identifies itself on its letterhead as "Highway Transport Specialists" and which was servicing Respondent's liability insurance, discussed the causes and prevention of accidents at a meeting of the drivers.174 It appears that Respondent's accident rate continued to be unsatisfactory.17b Prior to its initiation the last of March of the practice of laying off drivers for accidents, Respondent's practice had been to withhold, for the week in which a given acci- dent occurred if the accident proved to be due to the fault of the driver, the 5 percent safety bonus paid to drivers during those weeks when they did not have accidents. Drivers had not theretofore been laid off or discharged because of accidents 178 Further, it is clear that Respondent was aware, at least 6 or 7 weeks before it started laying off drivers, that Markel intended to increase the rate on its liability insurance because Respondent received a letter dated Febru- ary 15, 1946, from the Atlanta office of Markel which, with enclosures, amounted to notice that in order to cover Respondent's losses the rate as of March 1, 1946, would have to be increased from $3.15 per hundred dollars of gross receipts to $4 per hundred."' According to Booker's testimony, shortly after receiving the above letter from Markel he went to Atlanta and discussed the problem with Markel's Atlanta representative, W. A. Mitchell.171 Booker outlined to Mitchell a safety program which he proposed to put into effect and asked that they go along at the old rate for awhile, in view of the safety program. The undersigned is convinced that the safety program proposed by Booker and evidently accepted by Markel in- cluded driver training and incentive benefits and did not include any under- standing that drivers would be laid off or discharged because of accidents."' Yet 174 It is possible that the Markel representative discussed accidents in February or early March, subsequent to developments described hereinafter 176 A compilation from records of Markel's representative, Howell, shows a total of 13 accidents during a 7-month period from June through December 1945 for Respondent's drivers, and 16 accidents during the first 6 months of 1946. About November 1945, Respondent increased its mileage by approximately 40 percent. 178 The undersigned is convinced from his study of all of the evidence that while drivers had been discharged for various causes in the past, such as general inefficiency, lack of Interest in their work, and drinking on the job, none had been laid of or discharged solely because of accidents. 1" From Booker's testimony, the increased rate of 85 cents per hundred as applied to Respondent's gross receipts would have amounted to approximately $200 a month. 171 This discussion evidently took place In the early part of the week beginning Monday February 25. 179 In testifying as to what he told Mitchell about his safety program, Booker did not mention lay-offs or discharges, but described a driver training program patterned after the "Greyhound Driver Training School," a G I. training program, and a contemplated change in bonus arrangements as an additional reward for safe driving Booker testified that Maikel's Savannah representative suggested determining the fault of the driver, and penalizing him or rewarding him, as the case might be. In dealing with drivers being laid off for accidents, Booker created the impression that he was being required to take such 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,approximately 5 weeks after Booker's visit to Atlanta, Respondent started laying .off drivers for accidents at a time when meetings were getting under way with Teamsters. Further, in laying off these drivers, Booker created the impression contrary to the fact, that they were being laid off because of a system imposed on Respondent by Marke118' Thus the impression was created that the lay-offs were the result of something about which neither Respondent nor Teamsters .could do anything. Against this background, the respective lay-offs alleged to be discriminatory will now be considered. C. W. Collins had an accident on March 27.183 About 6: 30 p. in. on that date, near Mount Vernon, Georgia, when it was raining hard and Collins had all of ,his lights on and had the right of way, the bus he was driving struck the fender of a truck which started to make a turn at an intersection. No one was injured, and Collins secured regular accident statements from all seven or eight pas- sengers to the effect that the other driver was at fault.182 Collins phoned Polk ; reported the nature of the accident and that the bus door had been sprung; and ,was instructed by Polk to continue on until he met another driver who was .on a return run to Savannah and to trade busses with that driver. Pursuant to Polk's instructions, Collins met the other driver about 12 miles further on; traded busses ; concluded his run to Americus, Georgia ; returned on his regu- lar run the following day ; and turned in his accident report on reaching Savannah. When Collins reported for his regular run the next afternoon, March 29, he found another driver marked up to take his run and asked Polk why. Polk sent Collins to Booker who told him that he would have to be "off a few days" until the insurance company could investigate the accident. The undersigned is satisfied that this was Respondent's first lay-off following an ac- cident; that no policy had been announced as to any such lay-offs; and that Collins' indeterminate and unprecedented lay-off on March 29 occurred 2 days after the first meeting between Banks and Weigle. , On Tuesday, April 2, the fifth day of Collins' lay-off, Booker finally told Collins, who had been back every day trying to find out how long he would be off work, that he had heard from Howell and that Collins would have to be off 5 more days. During a somewhat extended conversation on that occasion, which has been set out more fully above, Booker discussed such matters as the need for cutting down on accidents because of his high insurance rate; the importance of not putting action by Markel. It is evident, however, from Howell's testimony that, while he cooperated with Booker in determining driver responsibility for accidents, the policy of laying off drivers was not a regulation imposed on Respondent by Markel, but was a policy determined upon by Respondent. 180 At the hearing on August 9, 1946, Booker testified that he had changed his insurance service recently. It is not clear from the record whether increased premiums to Markel were ever actually paid, or what the present insurance rate is. 181 While Collins placed this accident between April 12 and 15 and his lay-off is alleged in the complaint as April 15, the undersigned is satisfied that the date, March 27, given in a list of accidents compiled by Howell from his records is correct. At the hearing, counsel for Respondent referred to March 27 as the date of the accident. Collins testified that the accident occurred on Wednesday and in 1946, March 27 fell on Wednesday. Several dates alleged in the complaint were amended at the hearing and the pleadings were conformed to the proof without objection. In discussing these accidents hereinafter, the undersigned will rely largely on the dates contained in Howell's compilation ; the dates found below are those shown by the proof. 182 Collins' uncontroverted testimony concerning this accident is accepted.. When called by Respondent , Howell gave no evidence concerning any findings which he may have made iLs to this accident, nor is there any evidence that any liability was incurred by this accident. ATLANTIC STAGES 603 blame for accidents on faulty equipment ; and how union activities of the drivers had got Respondent so "messed up" that he did not know what to do about a new bus route from Americus to Columbus, Georgia, for which he had paid $30,000 and which he said he probably would have had in operation if Teamsters had not started. The undersigned is convinced that on, April 2, when Booker had the above conversation with Collins, he was already aware that Teamsters' proposals, which had been submitted to Banks on or before March 30, contained terms to which•he did not intend to agree. Collins returned to work after being laid off for 10 days without pay. He testified credibly that he had never been told whether his Mt. Vernon accident was a chargeable or a non-chargeable one.18a Carter B. Collins, Jr., an ex-service man with no previous experience as a bus driver, entered Respondent's employ in October 1945. Jarrott characterized Col- lins' service as "all right," although Collins had not, because of his short period of employment, improved as much as some other drivers. Like the other drivers whose lay-offs are now being considered, Collins joined Teamsters the last of February. Sometime before he joined, Collins had an accident in which his bus ran into a light pole in Vidalia, Georgia. Collins reported the accident as due to defective brakes. He was not laid off because of the accident but lost his weekly bonus. On the morning of March 30," at the end of the viaduct coming in to Savannah, Collins struck a truck which had just pulled out directly in front of him from behind a "street bus." There was minor damage to both the bus and the truck. About 9-: 45 that' morning, upon his arrival, Collins reported the acci- dent to Boyd who said, "We will have to let the insurance examiner check on it." Boyd told Collins to report back after dinner. When Collins reported back as instructed, Boyd told him that it would take 3 days to investigate the accident and that he would be laid off for those 3 days. Three days thereafter, Collins returned and saw Booker who told him that the accident was a non-chargeable one Collins did not receive pay for the 3 days during which he was laid off. While no mention of Teamsters was made when Collins was laid off, it is clear that on March 30, Collins was given a 3-day lay-off contrary to previously existing policy and that he lost 3 days' pay for an accident which was later admitted to have been non-chargeable. This lay-off followed by a day the above-discussed lay-off of C. W. Collins on March 29. C L. Houston, an ex-service roan who had had about 9 years of experience driving a school bus and 10 months experience driving a "GI bus," entered Re- spondent's employ in August 1945 In his testimony, Jarrott termed Houston as "always willing and on the job" and making progress.885 Before joining Teamsters, Houston had had two accidents, one shortly after he entered Re- spondent's employ and the other early in 1946. Houston had not been at fault in either case, as the bus he had been driving on each occasion had been run into by the driver of the other vehicle. Houston had not been penalized by either lay-off or bonus loss for either accident. On April 1,180 while Houston 183 While Booker gave Collins the impression that it was the insurance adjuster who had determined how long lie would have to be laid off, Howell flatly denied having made any recommendations as to laying off employees and insisted that he only reported as to liability. 184 The undersigned is satisfied that this accident occurred on March 30 as Howell's .records indicate rather than about April 6 as Collins testified. 188 He also referred to Houston as not having had "any bus experience." During the hPeing; "bus experience" in the sense in which Jarrott used it referred to experience driving inter-city busses, such as Respondent operated. 186 The undersigned accepts this date from Howell's records. Houston could not place the date more definitely than March or April. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was driving within Savannah, a 16-year-old boy-who was looking in the opposite direction walked into the right front corner of the bus. Houston called Boyd who instructed him to take the boy to a hospital for examination's' After the hospital examination, Houston and the boy went to Respondent's office where both made a statement. That same day, Booker laid Houston off, telling him that he would have to wait for about 3 days until they heard from the insurance company. After that 3 days' lay-off, for which he was not paid, Houston re- turned to see Booker. Within Houston's hearing, Booker used the telephone in what Houston believed to be a conversation with the "insurance man " During this apparent conversation, Houston heard Booker say, "You think 20 days would be all right, eh?" 188 Booker thereupon told Houston that lie would be off 20 days ; that the accident was chargeable in that it was as much his fault as the boy's; and that Houston would probably never make a good bus driver because -he was "too slow thinking." Houston started to leave, saying that he might as well look for another job and that he would let Booker know within 20 days whether or not he was coming back. Booker then told Houston that he was going to "take it on his own hook and cut it down to 10 clays" ; that he should "take a week's vacation" and then return to work; and to see him if he "needed any money" in the meantime. It is evident that whatever else may have transpired between Houston and Booker, Houston received a total lay-off of 10 days which started on April 1. As found hereinabove, Houston was one of the drivers mentioned to Gordon by Polk a few weeks earlier when Polk was suggesting drivers for Gordon to get to sign Polk's petition withdrawing from Teamsters. Houston was also present on one occasion when Polk queried Gordon as to whether anything had been done to secure withdrawals from Teamsters. L. D. Anderson, who had previously driven a school bus for 6 or 7 years, entered Respondent's employ in April 1945. Jarrott testified that he had one or two acci- dents and characterized him as a "very willing" worker whose services were "all right." Before joining Teamsters, Anderson had lost his weekly bonus as the result of an accident considered chargeable which had occurred in December 1945, when he had knocked a boy, who had ridden in front of him, off his bicycle. After Anderson joined Teamsters, he had an accident on April 1 at Americus, Georgia, while in the terminal. When he tried to back out, he backed into a post which he could not see in his side or his rear-view mirrors. The only damage caused by this minor accident was that the back bumper and the back door were dented a little.18' Upon returning to Savannah, Anderson reported the accident. On the following day, April 3,110 Booker talked with Anderson and told liim that he would be laid off until "the insurance people decided whether it was chargeable or not." Anderson was told that if the accident should be found to be non-charge- 187 Evidently the boy sustained no significant injuries. Respondent offered no evidence as to what injury or liability had resulted, and Howell did not testify as to his findings, if any, on this accident. 188 When the testimony of Houston, on which the above finding is based, was read to Howell at the hearing, Howell emphatically denied that he had ever recommended to Booker laying off any employee Howell was called as a witness by Respondent 189 This accident does not appear in the compilation of the accidents submitted by Howell. Nor does that compilation contain two similar accidents in which the "Hall boy," on two different occasions , hit the same post , doing minor damage to his bus . According to Jones' 'credited testimony, Hall, whose accidents occurred about the same time as his (May 3) and who was a new driver and did not belong to Teamsters, was not laid off for either accident, but quit some 3 or 4 weeks later. 190 Although Howell's compilation does not contain Anderson 's accident, the amended date of the lay-off, April 3, appears to be correct. ATLANTIC STAGES 605 able, he would be paid for the time he was off. Three days later he was told that the accident was chargeable . His total lay-off was for 10 days , for which he was not paid.19' Anderson testified, as Respondent 's brief points out, that he did not feel that he was being discriminated against because " that was a company rule." However, Anderson also testified that he found out about this rule "when they began to lay them off" sometime in March after Blackwell ' s separation.192 Like Houston, Anderson was mentioned to Gordon by Polk a few weeks earlier as one of the drivers Gordon should try to get to sign Polk 's petition withdrawing from Teamsters. Ned Janes, whose demotion from dispatcher to driver has been considered above , had an accident in Vidalia, Georgia , on May 3293 Another vehicle backed into Jones just as he was pulling into the bus station. There was only minor damage to the bus . When Jones reported the accident the following day, May 4, Boyd told him that he would be off until it was investigated . Four days later, Boyd and Booker told Jones that the accident was non-chargeable . Jones did not lose his weekly bonus. He was paid for 2 of the 4 days he was off and told that since he had asked 'for 2 clays off, he could consider the other 2 days for which he was not paid as the time off for which he had asked. Ignoring for the moment the lay-off of Jones , which occurred about a month after the lay -offs of the other four complainants now being considered, it is clear that the lay -offs of C. W. Collins, C. B Collins, Jr., C. L Houston and L D. Anderson all- occurred within a period of a few days, from March 29 to April 3, at the outset of meetings between Teamsters and Respondent, the first of which took place on March 27 . These lay -offs clearly constituted a sharp departure from Respondent 's customary practice and took place shortly after Respondent had initiated , as above discussed , three other changes in practices almost imme- diately after Teamsters had organized its drivers , namely, carefully checking all busses at the gauge for any indication of any kind of accident ; requiring that all busses be left at the garage door instead of in the garage ; and requiring that drivers ' red orts be submitted at the conclusion of runs . It is obvious from the above accounts of the lay -otis of the two Collinses , Houston and Anderson, that no uniform policy had been announced or apparently even decided upon ; that the drivers were deliberately given the false impression that Respondent's actions were being requ red by Markel ; and that Respondent 's drivers learned of this change as several drivers from time to time received varying treatment. Thus C W Collins was at first given an indefinite lay-off which, after 5 days, during a conversation in which Booker stated that organizing Teamsters had "messed up '. starting operations of a new bus route, the lay-off finally was fixed as a total of 10 days without pay , for an accident for which Collins was never told that he was chargeable C B Collins lost 3 days ' pay for an accident which he was told was non-chargeable . Houston was at first off for 3 days without pay; he then was told he would have to be off for 20 days because the accident was considered chai geable . When he protested , Booker cut the time to 10 days, all apparently without pay. Anderson was given 10 days off without pay for an accident which he was told was chargeable. "I Howell gave no testinionv concerning any investigation which he may have made of this accident "I Evidently no uniform i the was ever posted as to lay -offs and the drivers learned of this change in practice , which varied tioni case to case, when they saw what was happening to, other-d rivers '^3 Jones testified that this accident occurred around May 1 and Howell 's compilation shows an accident at Vidalia for Jones on May 3. GOB DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the four complainants lost time without pay, varying from 3 to 10 days, none of the four accidents for which they are supposed to have been laid off appears to have been serious, and C. B. Collins was told that his was non- chargeable.1B4 One of the accidents, that of Anderson, was clearly trivial ; it did not even appear on Howell's compilation of accidents for the period involved. Two similar accidents of another driver, Hall, who bumped into the same post on two different occasions, were likewise not recorded on Howell's compilation. Hall, who was not a member of Teamsters, was not laid off for either of those minor accidents. Finally, by misleading its drivers into believing that what eventually developed into a lay-off practice 19S was being required by Markel, Respondent, knowing that it did not intend to meet some of Teamsters' demands, in effect informed its drivers that they were confronted with a practice about which neither Respondent nor Teamsters could do anything, thus weakening the confidence of its drivers in Teamsters' ability to protect their interests. Everything considered, the undersigned is convinced and finds that however concerned Respondent may have been as to the frequency of its accidents and as to a pending increase in its insurance premiums, the lay-offs of C. W. Collins on March 29, C. B. Collins, Jr., on March 30, C. L. Houston on April 1, and L. D. Anderson on April 3, took place at such times, in such ways, and under such circumstances, as to warrant the inference, which the undersigned hereby draws, that such lay-offs were motivated in substantial part by Respondent's resentment against Teamsters and that they constituted a part of Respondent's course of conduct designed to discourage adherence to Teamsters. The hostility which Respondent expressed toward Teamsters, Respondent's threats and discrimina- tions against members thereof, and Respondent's evident determination not to deal with Teamsters, as shown by the findings made hereinabove, all support this inference. The undersigned therefore concludes and finds that these lay-offs were discriminatory and hence in violation of Section 8 (3) of the Act, as alleged in the complaint. As to Jones' lay-off of 4 days beginning on May 4, approximately a month after the foregoing lay-offs, the undersigned does not believe that this lay-off occurred at such a time, or under such circumstances, as to warrant the inference that its purpose was to discourage adherence to Teamsters 1B8 Accordingly, it is recom- mended below that the allegation that Jones was discriminatorily laid off be dismissed. (c) Terminations associated with checkers' reports On or about April 8, four of the complainants herein, Emmett Phillips, Jr., Perry W. Gordon, Olin Todd, and P. J. O'Neal, signed resignations.107 With the 194 It is noteworthy that Howell gave no testimony as to what his investigations of any of these accidents revealed 195 Drivers were to be laid off without pay for 10 days for a chargeable accident, but were to be paid for any time lost during the investigation if the accident eventually proved to be non-chargeable. 199 When Jones was given 2 days' pay for 2 of the 4 days he was off, he was told-that he could consider the other 2 days as time off for which he had been asking. Jones testified that he expressed reluctance at losing 2 days in that way ; he also testified that he had expected to lose all 4 days, and accepted the arrangement as "all right." In any event, Jones' failure to receive pay for those 2 days appears trivial and , under the circumstances, does not warrant any inference that Respondent, in not paying Jones, was motivated by purposes repugnant to the Act. 197 The resignations of O'Neal , Gordon, and Todd bear the date April 8, 1946 ; Phillips' resignation is dated April 9. ATLANTIC STAGES :607 possible exception of O'Neal, 198 all also signed statements bearing the same re- spective dates as their resignations, admitting that certain specified cash' fares had been withheld and not reported. Another member of Teamsters, D. W. Brant, whose termination is not alleged in the complaint to have been discritl- inatory, signed a similar resignation and confession at about this time.1D9 On April 13, W. T. Flanders refused to resign. He also refused to sign a confession dated April 13, which pertained largely to how he had operated his bus on la run on April 4. He was thereupon discharged. All of ,the foregoing resignations and confessions, whether signed or only submitted for signature, had been typed up beforehand by Respondent. These documents were submitted to the respective drivers individually in Booker's office, behind closed doors, with only the driver, Booker, and Boyd present200 No offer was made to modify any document in view of any denial or explana- tion made by any of the drivers. Except in the case of Flanders, the resigna- tions and confessions were signed individually by the respective drivers after Booker threatened to prove by checkers' reports enough to send each to the penitentiary. At the time of these interviews, Respondent had in its possession checkers' reports on all of its drivers. These reports had been turned over to Respondent on the morning of April 8 by The Langford Service System, hereih called Langford Service, a checking agency which had just finished making and auditing a check of Respondent's drivers R01 The confessions submitted, whether signed or not, incorporated matters found either in the audit or in the checkers' reports on the respective drivers, and all of the drivers who were shown as having any shortages were called in and dealt with as above described. The previously prepared typed resignations signed by Phillips, Gordon, Todd, and O'Neal are on Respondent's stationery and read : I desire to resign my position with your company, effective immediately. My reasons for this action are personal. Each is addressed to Booker with the name of one of the drivers typed on'it, below which the signature appears. The previously typed confessions, also on the stationery of Respondent, are addressed to Booker and witnessed by Boyd. They are similar in form and state that the signing driver confesses that he withheld and failed to report fares on a given run on a given date, which fares are thereafter enumerated with the tax withheld also shown. The last sentence on each reads, "I make this statement of my own free will." 199 O'Neal's denial that he signed a confession is considered below. 199 Booker testified that Brant signed a resignation and a confession on April 11. 200 While Boyd's signature appears as a witness on the confessions, he was not called to testify, although present at the'hearing The only evidence as to what transpired is that given by Booker and the respective drivers. There is no significant conflict In the evidence, however, as to the general procedure followed. 201 This check, the first of three, commenced on March 23 and ended on April 7. The second check wits made from May 25 to June 9, and the third during the presentation of -Respondent's case at the hearing, when the checkers were in Savannah to testify. The reports of the checkers as to drivers observed during these checks covered both the manner in which the bus was operated and a count of passengers getting on and off at each stop oh that part of any given run which was checked The on-and-off passenger count was there- after audited against the report for said run submitted by the driver. The arrangements for this first check were confirmed in a letter from Langford Service which for several years has been making such checks. This letter, dated January 19, 1946, and signed by O. W. Langford who, with his wife, Violet Langford, who does the auditing, are the proprietors of Langford Service, was addressed to Boyd and stated that Langford Service would "be able to have a crew available around the fifteenth or twentieth of March" to check Respondent's lines. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Todd's confession in the foregoing form states that on March 31 he withheld two cash fares , one for $2.35 and one for 15 cents, upon the larger of which there was a 35 cent tax in addition . Gordon's confession states that on April. 2 he cut and issued cash fare receipts from Thunderbolt to Savannah instead of from Savannah Beach to Savannah , thus reporting 70 cents in fares and 16 cents in taxes less than should have been reported . Phillips' confession states that he withheld , on April 3, a total of five cash fares and that in addition he "cut short" a cash fare receipt ,202 making a total of $1.45 short in fares, and 7 cents short in taxes . The confession , which it will be assumed for the purposes of this report that O'Neal signed ,203 states that on April 6, instead of issuing cash fare receipts , two tickets were purchased for two passengers , but for shorter distances than they actually traveled , thereby withholding $1.70 in fares and 26 cents in taxes, and that in addition , four cash fares collected at each of four different stops were short, the amounts being unspecified. Checkers ' reports and notations thereon as to audits , entered in evidence, afford a basis for the respective shortages listed in the confessions of Phillips , Gordon, Todd, and O 'Neal.204 A checker 's report for a run of Flanders on April 4, also afforded the basis for the proposed statement dated April 13, which Flanders refused to sign. This checker's report, as audited and corrected , shows among other things that Flanders transported his wife from Savannah to Vidalia without turning in a pass for her ; 205 that in coming onto a main highway he did not stop or even slow down for a stop sign ; that he slowed down and shifted gears rather than making a complete stop at a railroad crossing ; that he engaged in heated arguments with a woman seated in the seat behind him, turning his head while talking to her and driving on such occasions from the right side to left side of the pavement ; and that after a woman pulled the cord which failed to work and com- plained about having passed the place where she wanted off , Flanders said, "All I know for you to do, Lady, is to sue the Atlantic Stages. That cord is like every- thing else about this sorry mess . It doesn't work." The above checker's report on Flanders and admissions in Flanders ' testimony both as to what happened on the run on April 4 and as to what transpired during his discussion with Booker and Boyd on April 13, when he refused to sign the 202 The term "cut short" is used to describe a situation in which the receipt is shown for a shorter distance and a lesser amount than the fare is actually paid for and the passenger rides. Gordon 's confession , above summarized , amounted to cutting two fares short. zsi O 'Neal denied signing this confession Booker testified that he signed it. Boyd, whose signature appears thereon as a witness , was not called to testify , although available. The undersigned is not certain from his examination of the writing ' thereon whether O'Neal actually signed the document. However, the undersigned is convinced that Respondent attempted to get O ' Neal to sign the document , and it will be assumed that he did sign it, upon threats of prosecution. ' 214 The checkers ' reports and audits also show additional shortages , which are substantial in number in the cases of some of these complainants The undersigned does not deem it necessary to detail the various kinds and items of shortages shown , since no attempt is made herein to analyze fully the voluminous evidence concerning these checkers' reports and the audits thereof , or to determine whether or not these drivers actually were guilty of with- holding funds. It will be assumed, however, that Respondent could have believed from the audits made of the various checkers ' reports on their runs that these four complainants ( and also Brant ) had withheld funds. 205 While , according to Respondent 's rules , a pass should be secured for any member of a driver's immediate family, it appears that drivers sometimes hauled their own wives and wives of other drivers without securing such passes Indeed, the record as a whole indi- cates that , as often happens in small organizations where relationships are on a personal basis, some of Respondent's printed ' rules and regulations were not followed very faithfully. ATLANTIC STAGES 609 confession , indicate that Respondent had reason to believe when it discharged Flanders that he had violated its rules in certain respects . For instance , Rule 51 provides that the driver should not "carry on any conversation with passengers while the vehicle is in motion ." 200 Rule 60 instructs drivers never to "become in- volved in an argument " with a passenger . Rule 62 prohibits the driver from expressing his attitude toward the condition of his bus 2°' Flanders should have made full stops at the railroad crossing and at the high- way stop sign . Instead, according to Flanders ' version, he proceeded very slowly in low gear . 20S Admittedly on April 13 , before Booker told Flanders that he would have to let him go, Boyd asked Flanders if he had read the rule book ; Flanders admitted that he had ; and Boyd said that Flanders had had 6 months ' experience and should have been familiar with the regulations.209 As to the four complainants who signed resignations and confessions, they denied with apparent sincerity at the hearing that they had withheld funds or had intentionally made false reports. Various explanations were given as to how mistakes might have been made , both by the complainants here being con- sidered and by other drivers . The undersigned is satisfied from all of the evi- dence that, when the respective four complainants were individually closeted with Booker and Boyd, they were not given an opportunity to compare the reports which they had turned in with the reports which checkers had turned in for the same runs in order to try to clear up and explain any mistakes which might have been made Further, fiom his study of the voluminous and detailed evidence as to these checks and audits , and as to the practices of drivers of Respondent, the undersigned is convinced that the audits shown in longhand on the typewritten checkers ' reports in evidence do not constitute conclusive proof of guilt, especially in view of two hiatuses in the evidence. In the first place, the accuracy of the on-and -off count of passengers at each stop, as shown on the checker 's report prepared at the conclusion of a run being checked, depends on notes taken on the bus: 1° These notes , according to the testi- mony of the checkers , are destroyed as soon as the report is prepared. Since Respondent and Langford Service contended that the method by which such notes are taken is a trade secret which could not be revealed without destroying the- effectiveness of future checks , and since Respondent contended that it was relying on findings of an agency which it believed to be expert , the undersigned did not require that the method of note taking be revealed at the hearing. The second hiatus appears at the auditing stage. Violet Langford , who made all of the audits involved , testified that she compared the drivers ' reports which included "all the fares" m with the checkers ' reports for those same runs, and recorded in longhand on the checkers' reports the results of her audits. While 201 Flanders denied taking his eyes off of the highway while talking to the passenger. 207 Flanders denied making the statement in the "manner" set out in the proposed con- fession ; the language therein was the same as that used in the checker's report. 201 Flanders testified that he did so because it was very difficult to shift gears on the bus which he was driving. 101 Flanders, an ex-service man, entered Respondent's employ in October 1945. Jarrott described his as a young driver who was "a little bit flighty" as he did not "settle down to a good, serious job as some of the older drivers would have" but that he was improving 210 This assumes the correctness of the checker's original observations, made in part from whatever seat is available when the checker boards the bus. It would appear that under unfavorable conditions these observations themselves may be open to error. 211 The form for the driver's report is printed on the front of an envelope in which the driver places the tickets, passes, and cash collected on the run and the duplicate cash fare receipts issued. 610, DECISIONS OF NATIONAL LABOR RELATIONS BOARD she described the method used in considerable detail, Langford did not make any actual comparisons at the hearing between the checkers' reports and the corre- sponding drivers' reports, nor did Respondent introduce into evidence any of the drivers', reports with their original contents so that anyone following the procedure described could verify the results which Langford testified she had obtained." As to the extent to which cash accompanied the drivers' reports which she had audited against checkers' reports, Violet Langford's testimony was some- what confused. She testified, when asked if she had counted the money in the drivers' reports, that the actual money had nothing to do with her audit which was "taken from the cash fare receipts, the amount which they are cut for." From the example in evidence of the type of cash fare receipt then in use and from the testimony concerning how it was used, it is apparent that errors in punching such receipts can be made inadvertently. Also it is evident that Re- spondent's drivers had been lax in cutting and issuing cash fare receipts. This is; shown both by testimony and by notices posted by Respondent shortly before the first check was started and immediately upon its completion.212 It should be noted that in addition to issuing instructions shortly before the check, requiring conformance to cash fare receipt procedures previously not observed, Respondent also instituted the requirement that drivers' reports be turned in immediately upon completion of a run rather than before going out on the next run, thus pro- viding less time in which drivers could prepare their reports. From his study of- the checkers' reports and the record as a whole, the undersigned believes that some of the shortages shown by the audits may indicate failure to turn in correctly cut cash fare receipts rather than establishing that money was de- liberately withheld. Inadvertent errors due to hastily prepared reports also may have resulted from Respondent's recently changed practice. It would also appear that had those shortages been Respondent's only reason for its action, it would have been desirous of affording an opportunity of explaining possible mistakes to, drivers whose work, except for Phillips', was evidently otherwise considered generally satisfactory."' In any event, Respondent did not give the drivers from 212 Counsel for Respondent stated at the hearing that he was resting on the theory that an expert has a right to make an audit and to testify as to its results. While Langford is not 'a public accountant, her education and experience appear to qualify her to follow the procedures which she described. However, it should be noted that the two checkers other than Mr. and Mrs. Langford, who worked on the checks here under consideration, had had very limited experience in checking. Neither had done bus checking before start- ing to work for Langford Service, and the more experienced of the two started to work on March 8, 1946, less than 2 weeks before she started checking Respondent's drivers on March, 23. 212 The first bulletin, dated March 19, states that "many operators are not observing instructions pertaining to the issuance of cash fare receipts" ; sets out those instructions; and states that operators not observing such instructions would "be subject to disciplinary action or dismissal." The second bulletin, dated April 9, calls attention to the previous bulletin and states that "many operators are failing to adhere to this bulletin" requiring that "Cash Fare Receipts are to be cut and issued to passengers at the time passengers board your coach." This second bulletin, after stating that any operator who continued to ignore the instructions issued in the first bulletin would be dismissed, elaborates the instructions concerning cash fares. 214 Respondent does not contend that these four drivers were terminated for any reasons other than for checkers' reports. Jarrott testified that the services of Todd, O'Neal, and Gordon were satisfactory, adding that Gordon had to lay off a little because of sickness in the family. He testified that Phillips "was doing fairly well," although there was still room for improvement as to a "kiddish attitude" and "a little lack of responsibility." Jarrott also testified that in stating that a driver's services were satisfactory, he did not mean they were perfect, as "there was room for improvement all the way through." ATLANTIC STAGES 61L whom , by threats of prosecution , it secured resignations and confessions, a reasonable opportunity to explain evidence against them.20 Respondent contends that the signed confessions above summarized are "proof positive" of the guilt of those who signed. Under the conditions of this case, the undersigned does not believe that this is necessarily so, since the signers, all of whom were members of Teamsters , were individually confronted, in a situation where Respondent 's anti-union animus had been manifested in various ways, including discriminatory lay-offs and discharges of members of Teamsters, with a choice between signing resignations and confessions or being prosecuted on the basis of evidence which Booker contended would put them in the peni- tentiary 216 It should also be noted that the three complainants who admitted that they had signed confessions, all testified credibly as to their limited educa- tion and their complete lack of legal training21' The undersigned is convinced that, in view of the methods used by Respondent in securing signatures to confessions , the confessions cannot be considered voluntary confessions or proof of guilt. For instance, Perry W. Gordon, who about a month before had failed to secure any signatures to the petition with- drawing from Teamsters which Polk had given to him,216 testified credibly that upon the occasion of his signing his resignation and confession, Booker had said that it seemed that the drivers were trying to run his job and that he had decided to run it himself. Gordon also testified credibly that he signed two papers after Booker had threatened him with a warrant and had made a tele- phone call in which Booker had said, "I have another one of these men in here, now, and it looks like I can't get him to do anything and I may have to call you back in a few minutes and let you send a warrant on down here." Gordon further testified credibly that he had not known what they might have done to him as there were two of them in the room 219 and one of the drivers had already been jumped on and fired "° In similar vein, Todd testified credibly that when Booker told him that if he would not sign the two prepared statements that he would have him locked up and sent to the penitentiary, he did not know what Booker could do as he had heard of an innocent man being put in the penitentiary.221 From the events which were transpiring contemporaneously and from the record as a whole, it is apparent that Booker was aware at the time he prepared the resignations and confessions that the removal of several drivers, all of whom he had reason to believe were members of Teamsters, from Respondent's pay roll would substantially weaken Teamsters' majority and discourage loyalty to Teamsters, thus weakening Teamsters' position at the bargaining table and increasing the probability that Teamsters would be defeated in an election 216 However , from the testimony of Booker and Weigle , the undersigned finds that at about this time Booker asked Weigle what Teamsters ' attitude was toward members guilty of withholding funds and Weigle indicated that where dishonesty was proved to the satis- faction of Teamsters and the employer , Teamsters could not uphold such drivers 219 Flanders , who did not sign a resignation or confession , was not thus threatened. 211 O'Neal denied signing a confession. 2 18 As is found above , Polk had told Gordon in connection with this petition that it would mean their jobs if the drivers did not get out of Teamsters and that Gordon 's job would be all right if he got more than half of the drivers to sign the withdrawal. 219 Booker and Boyd were both present. 229 This reference was evidently to the Blackwell episode discussed above. 221 As is set out more fully above , in a conversation some 4 weeks later when Todd asked for his job back, Booker refused to reinstate him ; maintained that organizational activities had nothing to do with what had happened ; and said that "before he would have the Union" he would shut down or sell out, and that there was nothing "but a bunch of sons -of-bitches in the Union." 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including new employees upon which Booker , against the advice of Bright and Banks, was insisting when negotiations broke up about the middle of April That Booker , whatever may have been his belief as to the conclusiveness of the checkers ' reports as evidence that funds had been withheld , was eager to seize upon reports showing any type of shortage to rid himself of members of Team- sters appears likely both from the speed with which he acted and from Lang- ford Service 's departure from its usual procedure in submitting reports. As to the former , it is clear that resignations and confessions were secured from three drivers on April 8 , the day upon which the results of the check were sub- mitted to Respondent , and from two others shortly thereafter . As to the latter, the testimony of W. O. Langford shows that while Langford Service customarily submits all of its reports arranged chronologically in a bound volume upon the completion of a check, at the conclusion of its first check for Respondent, the, reports were submitted so that the voluminous bound reports contained only reports showing no shortages , while the reports indicating shortages were segre- gated and submitted in an envelope. From testimony of Jones, Booker, and O'Neal, the undersigned finds that Re- spondent had previously had checks made of its drivers and that two checks had been made in 1945, one in the spring and one in the fall. Jones testified credibly that Markel made a check in the fall of 1945 and O'Neal testified that a month or two after he started to work, which was about November , Jarrott called him into the office, gave him a checker 's report to read , and told him that he was doing all right. Jones also testified credibly that in the spring of 1945, there was a check of all drivers made by a firm other than Markel ; that all drivers were called into the office about the results of that check ; that none of the drivers was discharged ; and that when Booker discussed his check with him, he pointed out that the difference of three more passengers shown in Jones' report, which report showed 137 passengers whereas the checker 's report showed only 134, was a type of difference likely to occur because of the difficulty a checker would have in judging whether or not cash fares should be collected from children . While Booker's testimony was hazy as to previous checks, he testified when asked about 1945 that they had had "a check made way back there." He also testified that they had done some spot checking ; that standards during the war were relaxed because drivers were hard to get and it was cheaper to lose cash fares than to break in new drivers ; that lie did not then want to find out who was stealing because he could do nothing about it; that reports on drivers turned - in by Markel , which , according to Booker, made its reports by following a bus in a car or when "one of their men happens to be riding the bus," had proved "very inaccurate" and that no attention had been paid to them "except for the safety angle" ; and that numerous Markel reports were clearly inaccurate because "the checker would report less passengers on the bus than the driver reported ." 222 Whatever may have been the nature of its previous checks, the undersigned is convinced that, prior to the advent of Teamsters, drivers had not been terminated by Respondent as the result of checkers ' reports as to honesty • While previous checks had been made , the evidence does not reveal the details as to how those checks were made Hence the relative reliability of previous checks cannot be determined and there is nothing in the record to show that any previous checks produced persuasive evidence that any of Respondent 's drivers were withholding funds. Further , the undersigned is convinced from his detailed 222 Howell denied knowing of any passenger' checking service rendered by Markel, and characterized its existence as possible but improbable. ATLANTIC STAGES 613 study of the evidence as to how Langford Service's checks were made and audited and as to the various audited reports on runs of Gordon, Todd, O'Neal, Phillips, and Brant, that Respondent could reasonably have believed that the four com- plainants here being considered, and also Brant, had been witholding funds"' In addition, the weight of the evidence shows that Respondent, which had written as early as November 1945 to another agency concerning a check, arranged with Langford Service to make a check of all of its drivers before Respondent learned that Teamsters was organizing them,224 and that Respondent, as part of its general program to improve its unfavorable financial situation, arranged this check to im- prove its operations and to eliminate withholding of cash fares which it believed was taking place 225 It is undisputed that all drivers shown to have had any shortages by this first or by subsequent checks made by Langford Service, whether members of Teamsters or not, were terminated. 6 When the terminations of Gordon, Todd, O'Neal, and Phillips are viewed in their total setting, a question is raised as to the extent to which Respondent's anti-union motives may have entered into its conduct which results in terminat- ing the employment of those four complainants. However, since the check was arranged for business reasons prior to Respondent's knowledge that Teamsters was organizing, since the evidence does not establish collusion between the checking agency and Respondent, since the audited checks showed results upon the basis of which Respondent could reasonably have believed that the complain- ants were withholding funds, and since all drivers showed by the audited checks to have been withholding funds were terminated, the undersigned finds that the evidence does not sustain the allegation of the complaint that Gordon, Todd, O'Neal, and Phillips were discharged because they joined and assisted Teamsters and engaged in concerted activities. Accordingly, it will be recommended below that said allegation be dismissed. As to the discharge of W. T. Flanders, while the matter is not free from doubt, the undersigned finds that Flanders' discharge was not discriminatory. Booker testified that he had previously discharged drivers on checkers' reports involving safety factors. The evidence shows that several drivers had been discharged from time to time for undesirable conduct and general inefficiency. The undersigned is satisfied from Flanders' testimony and from the checker's report in evidence that he did violate several of Respondent's rules, some involv- ing public safety. It is also clear that the question of violation of rules was stressed by Boyd at the time Flanders was terminated, and that when Flanders n' It should be noted that no finding is made herein that any driver was, in fact, with- holding funds. 221 The evidence shows that in November 1945, Respondent entered into correspondence with another agency concerning checking its personnel and that Langford Service con- firmed its ability to furnish a crew of checkers in March by a letter dated January 19, 1946 While Respondent's subsequent receipt of a letter dated February 7, 1946, from the agency to which it first wrote concerning cjiecking its drivers may raise some question as to the date upon which the oral agreement between Langford Service and Respondent was actually consummated, as the Board contends, it is clear that Respondent was considering securing the services of a checking agency over 3 months before Teamsters entered the picture, and the undersigned finds that arrangements with Langford Service were con- cluded prior to Respondent's learning that Teamsters had organized its drivers 215 Evidence in the record, tending to support contrary inferences, has been duly con- sidered in reaching the above conclusions. 225 One of the drivers terminated on the second check, H. M. Jones, was not a member of Teamsters It is noteworthy that Jarrott testified that Respondent in the past had suggested that drivers resign rather than be discharged, and that Booker testified that he secured resignations and confessions from the drivers at the time of the first check to make a record to show that he was not violating the Act. 798767-49-vol 78 40 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to sign a confession he was discharged. There appears to have been no undue haste in determining to discharge Flanders, and Jarrott's description of Flanders as "a little bit flighty" is borne out by the findings in the checker's report. In view of testimony given by several witnesses, especially Jarrott, Jones and Booker, as to factors leading to various previous discharges of drivers, the undersigned believes that the conduct of Flanders on his run on April 4, as revealed by the checker's report and substantially admitted by Flanders, shows such a combination of rule violation , including discourtesy and unsafe driving practices, as fall within Respondent's customary reasons for discharging drivers. Accordingly, the undersigned will recommend below that the allegation as to the discharge of Flanders be dismissed. (d) Terminations associated with accidents W. J. Ward entered Respondent's employ as a driver about the middle of January 1946. On March 10, shortly after he joined Treamsters, Ward had a slight accident in the bus station in Savannah when he broke the glass in a head light by running into a post. On April 5, when leaving on a run to Vidalia, Ward ran into the rear end of a passenger car near the foot of the viaduct in Savannah, scratching the right rear fender of the car and the left front end of the bus." Ward, whose bus was in third gear going approximately 20 miles per hour, was approximately 15 yards behind the car when it suddenly stopped without Ward having seen any signal. Ward tried to miss the car by pulling to the right over the curbing, after applying his brakes which did not stop the bus in time." After the accident, Ward telephoned Booker who told him to get passengers' statements and to proceed to Vidalia. Ward did so. Upon returning to Savannah the next day, Booker discussed the accident with Ward. Booker also asked Ward about the interest which it had been reported that Ward was displaying toward a young lady who worked in the cafe in the bus station in McRae, Georgia 228 Ward, whose run from Savannah to Americus went through McRae, and who admittedly was deadheading 23° back from Americus to McRae and stay- ing in McRae rather than in Americus'211 evaded the issue. During the discussion, Booker told Ward that the situation as reported to him by McGowan would be injurious to Respondent. Ward's previous accident, as well as his current one, 227 The estimated damage to both vehicles was about $10. 228 An unsigned accident report in evidence gives substantially the above description of the accident but contains no statement concerning brakes. Ward testified that his brakes failed to work and that he did make a statement to that effect in reporting the accident. Howell admitted that Ward had told him that "his brakes wouldn't hold ." The under- signed is satisfied that Ward reported his brakes as failing to work properly when he reported the accident , but makes no finding as to the actual condition of the brakes. 229 Booker is one of the two partners in the cafe. The other partner, 0 L. McGowan, who operates the cafe and serves as Respondent 's ticket agent , had reported to Booker about the situation. From Booker's and McGowan's testimony, the undersigned is satisfied that McGowan had reported that Ward, who was a married man, was returning to McRae quite frequently to see a young lady about 18 years old who worked in the cafe, and that he had heard "around town" that "her dad was fixing to kill" Ward if he kept coming back 230 The practice of a driver riding as a non -paying passenger on a bus driven by another driver is called deadheading. 281 A road map in evidence gives the 1940 population of Americus as 9,281 and of McRae as 1,595. The scheduled bus mileage from Americus to McRae is 89 miles. Thus , in order to stay in McRae rather than in Americus, Ward traveled 178 miles round trip and spent 4 hours deadheading , 2 hours each way, as he had to return to Americus in order to take his run back into Savannah , going through McRae on this return trip. ATLANTIC,STAGES 615 was also discussed.. Eventually Booker told Ward that he would have to be off for 20 days.' After he had been away from work for 20 days, Ward returned to see Booker. Booker told Ward that the insurance company had not "cleared" his accident and that he could not let him return to work."' Booker, who in the meantime had gone personally to McRae to find out about the situation there, also told Ward that there was talk around McRae about the matter and that the girl's father might cause trouble. Ward asked Booker if he was going to discharge him or if he was supposed to resign. Booker said that if he had intended to fire him he would have done so. Ward then went to see Howell to see if there was any ob- jection on the part of the insurance company to his returning to work. Appar- ently Howell in effect told Ward that his investigation showed that the accident was Ward's fault but that Booker could take him back if he wanted to do So. 3' Ward returned and informed Booker that Howell had no objection to his returning to work. Booker said that Howell just did not want to hurt Ward's feelings but had said that very morning that Ward should not return to work. Booker would not give Ward any idea how long it would be before he could resume driving. Ward, who had a family to support and had not worked for 20 days, told Booker that he had to work somewhere and that he would have to resign. Respondent contends in its brief that Ward was discharged on April 6 because be had had two accidents in a short period of time and because he had "found himself involved in a rather unsavory situation in McRae, Georgia, which might have led to an extremely embarrassing situation." The undersigned is satisfied that Ward was not discharged but that he resigned when Booker refused to let him go back to driving after having been laid off for 20 days. The undersigned is also satisfied that Ward was evasive with Booker about the McRae situation just as he was evasive at the hearing when he testified unconvincingly that he had made what were obviously long bus trips to McRae merely because he could get meals and lodging for less in McRae than in Americus. The undersigned is further satisfied that Howell was insisting that Ward's rear-end accident was Inexcusable. While the matter is not without doubt, since Booker discussed the McRae situation and Ward's accidents with him both when he laid him off and when Ward resigned, since Ward was a relatively new employee who does not appear to have taken any initiative in organizing for Teamsters, and since Ward's accidents in combination with the McRae situation appear to constitute reason- able ground for Booker being unwilling to let Ward return to driving, the under- signed is not satisfied that the allegation of the complaint that Ward was dis- charged on April 6 because he joined and assisted Teamsters has been sustained by the evidence. It will be recommended below that said allegation be dis- missed. Carter B. Collins, Jr., whose lay-off on March 30 is discussed above, was dis- charged about May 8, following an investigation and a report by Howell on an 132 The findings in the above paragraph and in those which follow as to discussions between Booker and Ward are made upon the undersigned's evaluation of the testimony of Booker and Ward, neither of whom is fully credited. Howell believed that the accident was inexcusable because Ward ran into the car from the rear and should have known the condition of his brakes. The term "cleared" appears in Ward's testimony without indication as to what Booker meant. "' Ward testified that Howell said that his accident "was cleared" and that he could go back to work if Booker would take him back Howell testified that Ward came to his office on several occasions and that he told Ward he was reporting ,to Booker that he con- sidered Ward's accident a chargeable one and that such a rear-end accident was inexcusable. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accident which occurred near Vidalia on May 1•m A report which Collins made on May 2 of his accident reads: I came up behold a car going slowly. I blew my horn and flashed the lights to signal for a pass from the rear. I started to pass the car and as I got almost even with the car the driver made a left turn to go into a driveway on the left, her left front hit the right front of the bus just back of the door. My left wheels were off the pavement when we hit. The other car had its lights on. There was only the driver in the Model A Ford & she said she wasn't hurt. There were no passengers on the bus The car was about half across the center line when we hit & the car stopped just as we hit. The bus went on into the ditch on the left side of the road. There was only slight damage to the car. A letter, dated May 8, which Howell wrote to Markel's manager concerning Collins' accident after he had completed his investigation and had reported same to Respondent reads, in part : e At first Mr. Collins was, we believe, attempting to withhold some infor- mation as to the actual occurrence, and on the 3rd of May additional infor- mation reached us which indicated that there were several vehicles in the line of traffic, and that Dlr. Collins was possibly traveling quite fast. This is the information that was withheld by Mr. Collins at the time of our first interview. Upon arriving at Vidalia, and contacting the Claimants, we found that Mrs. Coloman was proceeding west on U. S. #280, and that there were two trucks behind Dirs. Coloman. Mrs. Coloman made' a signal for a left turn into a side road, and the two trucks slowed down behind her The bus came up behind the above mentioned three vehicles and attempted to pass all three from the rear, and in face of oncoming traffic. Signs left on the left shoulder of the road indicated that the bus had traveled on two wheels on the shoulder a distance of about 50 yards before the accident occurred, and a Mr. McCollum of Vidalia, who was driving one of the trucks bore out what Mrs. Coloman told us. After picking up this information we inspected the Claimant's automobile, which was a 1931 Ford coach, and prepared the attached detail as best we could, which figure, we believe, is entirely in order, and even though Mrs. Coloman said that she was considerably shaken up, she was satisfied that she had received no injury of any consequence, therefore, she and her husband were willing to furnish us with a release for $50.00. We concluded with the Claimants, and attach hereto properly executed release, and letter of advice on draft #33210. After returning to Savannah we interviewed the Assured and his driver again, and it was generally admitted that the information that we had developed at the scene were (sic) substantially correct. Mr. Collins has been discharged by the Assured as this was his third accident, the first two were quite small. The main reason for Mr. Collins' dismissal was for with- holding information. 236 While there are contradictions in the testimony as to Collins' discharge, the findings set out here are made upon a consideration of all the testimony of Collins, Booker, and Howell in the light of documentary evidence. The discharge was about May 8, rather than April 24, as alleged. ATLANTIC STAGES 617 The undersigned is convinced that Howell made the investigation with the results set out in the above letter. A comparison of Howell's letter with Collins' report shows that Collins failed to report material information concerning his accident. From the testimony, the undersigned is satisfied that Collins admitted to Booker and Howell that he had withheld information. Withholding informa- tion in reporting an accident is a serious matter. There is no evidence that Respondent had previously been confronted with a comparable situation. Booker testified credibly that he discharged Collins chiefly for withholding information in reporting his accident. In view of such a valid reason for Collins' discharge and in the absence of immediately surrounding circumstances which would warrant any inference that said reason was not Respondent's real reason, the undersigned finds that the allegation of the complaint as to Collins' discharge has not been sustained and will recommend below that said allegation be dismissed.226 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE' The activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively with Team- sters as the exclusive representative of its employees in an appropriate unit, the undersigned will recommend that Respondent, upon request, bargain col- lectively with Teamsters. It has. been found that Respondent discriminated in regard to the hire and tenure of employment of Thomas M. Smith by discharging him on May 31, because he assisted Amalgamated and engaged in concerted activities. It has also been found that Respondent has discriminated in regard to their hire and tenure of employment, because they joined and assisted Teamsters and engaged in concerted activities, as to the following- employees in the ways and on the dates here set out.23' Respondent laid off C. W. Collins for 10 days beginning March 29; C. B. Collins, Jr., for 3 days beginning March 30; C. L. Houston for 10 days beginning April 1; and L. D. Anderson for 10 days beginning April 3; all in 1946. Respondent discharged H. M. Blackwell on March 9 and Barney Waters on March 25, 1946, and has thereafter failed to reinstate them. It will therefore be recommended that Respondent offer Smith, Blackwell, and Waters immediate and full reinstatement to their former or substantially equivalent' positions,223 without prejudice to their seniority or other rights and privileges. 226 There is no allegation in the complaint that Collins was discriminatorily laid off immediately preceding his discharge. In any event, the report in which Collins withheld information was made on May 2. 217 Where dates-enumerated vary-from the pleadings, the pleadings are hereby conformed to the proof. 238 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will further be recommended' that Respondent make whole all employees found to have been discriminated against whether by lay-off, discharge, or demo- tion,"' for any loss of pay that each may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages, from the date of the discrimi- nation against him to the date of Respondent's reinstatement or offer of reinstate- ment, less his net earnings 240 during said period. It has been found that on March 4 Ned Jones was demoted from dispatcher to driver without change in his rate of pay. The evidence shows, as indicated above, that the position of dispatcher as Polk has functioned therein has developed to 'include several functions not formerly performed by Jones and has, in the absence of any successor to Jarrott to assume all of the duties of operating manager as that position functioned until shortly before Jones' demotion, been substantially closer to Booker and has entailed substantially more supervisory and managerial responsibility than Jones exercised .241 Since there is no contention that, aside from Jones' demotion, changes in Respondent's supervisory set-up have been made for reasons repugnant to the Act, it is apparent that as matters have developed the position of dispatcher as Jones had functioned therein no longer existed at the time of the hearing. In view of the foregoing, what is said in this section entitled "The remedy" and hereinafter in the section entitled "Recommendations" with respect to Jones is to be interpreted to mean that Jones should be reinstated to his former position as dispatcher if and when a position with duties and respon- sibilities comparable to those exercised by Jones exists and to such "substantially equivalent position" as in the meantime does exist. The extensive and pervasive nature of Respondent's unfair labor practices found herein convince the undersigned that there exists on Respondent's part an attitude of opposition to the fundamental purposes of the Act and that there is likelihood of Respondent resorting to other acts of interference, restraint and coercion calculated to defeat and frustrate its employees in the exercise of their ,right to self-organization2A2 Accordingly, in order to make more effective the -interdependent guarantees of. Section 7 of the Act and to protect the rights of Respondent's employees generally, the undersigned will recommend that Respond- ent cease and desist from in any manner interfering with, restraining or coercing ,its employees in the exercise of the rights guaranteed in Section 7 of the Act. Since it has been found that Respondent did not discriminatorily discharge W. J. Ward, W. T. Flanders, Perry W. Gordon, Olin Todd, P. J. O'Neal, Emmett Phillips, Jr., C. B. Collins, Jr., and C. W. Collins, and did not discriminatorily possible , but if such position is no longer in existence, then to a substantially equivalent position ." See Matter of The Chase National Bank of the City of New York, San Juan, 'Puerto Rico, Branch, 65 N. L. R. B. 827. 22B This recommendation applies to Ned Jones, discussed hereinafter in the remedy, to whatever extent his demotion may have entailed any loss in earnings. 240 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for Respondent , which would not have been incurred but for his unlawful ° discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v N. L. R B , 311 U. S. 7. 241 In essence , the Board and Teamsters both took the position at the hearing that Polk as dispatcher was substantially closer to management than Jones had been. . 242 May Department Stores Company v. N. L. R. B., 326 U. S. 376. ATLANTIC STAGES 619 lay off Ned Jones, it will be recommended that said allegations of the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW - 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, and Amalgamated Association of Street, Elec- tric Railway and Motor Coach Employees of America, both affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All of Respondent's drivers, exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Federation of Labor, was, on February 28, 1946, and has been at all relevant times there- after, the exclusive representative of all of Respondent's employees in the afore- said unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (a) of the Act. 4. By refusing on or about March 2, 1946, and at all times thereafter to rec- ognize and to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Federation of Labor, as the exclusive representative of the employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Ned Jones, C. W. Collins, C. B. Collins, Jr., C L. Houston, L. D. Anderson, H. M. Blackwell, and Barney Waters, thereby discouraging membership in Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Federation of Labor, and by .discriminating in regard to the hire and tenure of employment of Thomas M. Smith, thereby discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, Respondent has engaged In and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. Respondent, by discharging W. J. Ward, W. T. Flanders, Perry W. Gordon, Olin Todd, P. J. O'Neal, Emmett Phillips, Jr., C. B. -Collins, Jr., and C. W. Collins and by laying off Ned Jones, has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. - 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Respondent, J. A. Booker, an individual doing business as Atlantic Stages, its agents, successors and assigns shall: 1. Cease and desist from : (a) Refusing to recognize and to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the unit heretofore found appropriate with re- spect to rates of pay, wages, hours of employment, or any term or condition of employment ; (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ame_ica, Local No. 897, or Amalga- mated Association of Street, Electric Railway and Motor Coach Employees of America, both affiliated with the American Federation of Labor, or any other labor organization of its employees by demoting, laying off, discharging, or re- fusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 897, or Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employees of America, both affiliated with the American Federation of Labor, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to H. M. Blackwell, Barney Waters, Thomas M. Smith, and Ned Jones Z43 immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole H. M. Blackwell, Barney Waters, Thomas M. Smith, C. W. Collins, C. B. Collins, Jr., C. L. Houston, L. D. Anderson and Ned Jones for any loss of pay they may have suffered by reason of Respondent's discrimination against them by payment to each of a sum of money equal to the amount he normally would have earned as wages-from the date of the discrimination to the date of Respondent's reinstatement or offer of reinstatement, less his net earn- ings during said period ; (c) Upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, affiliated with the American Federation of Labor, as the exclusive representative of all of Respondent's drivers, exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees or effectively recommend such action, and if an understanding is reached embody such understanding in a signed agreement; 243 As to Jones, see the section entitled "The remedy," above. ATLANTIC STAGES 621 (d) Post at its offices and garage at Savannah, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director of the Tenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that Re- spondent discriminatorily terminated the employment of W. J. Ward, W. T. Flanders, Perry W. Gordon, Olin Todd, P. J. O'Neal, Emmett Phillips, Jr., C. B. Collins, Jr., and C. W. Collins, and discriminatorily laid off Ned Jones, be dismissed. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he idles upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon eech of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65 As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to,the Board within ten (10) days from the date of service of the order transferring the case to the Board. EARL S. BELLMAN, Trial Examiner. Dated February 25, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No 897, affiliated with the American Federation of Labor, or AMALGAMATED ASSO- CIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER H. M. Blackwell, Barney Waters, Thomas M. Smith, and Ned Jones immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed. We will make the foregoing employees and C. W. Collins, C. B. Collins, Jr., C. L. Houston, and L. D. Anderson whole for any loss of pay suffered as a result of discrimination. WE WILL BARGAIN collectively upon request with INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 897, affiliated with the AMERICAN FEDERATION OF LABOR, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All of our employees who are drivers, exclusive of garage employees, office employees, the dispatcher, the garage foreman, the agent, the traffic manager, and supervisory employees with authority to hire, promote, dis- charge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. All of our employees are free to become or remain members of the above-named labor organizations or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employees because of membership in or activity on behalf of any such labor organization. J. A. BOOKER, doing business at ATLANTIC STAGES, Employer. Dated ------------ By --------------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.