Checker Cab Co.,

National Labor Relations Board - Board Decisions

Jan 3, 1980

247 N.L.R.B. 85 (N.L.R.B. 1980)

CHECKER CAB COMPANY
Checker, Inc., d/b/a Checker Cab Company and
Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America. Case 31-CA-8490
January 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 12, 1979, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts or its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Checker, Inc., d/b/a
Checker Cab Company, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Administrative Law Judge inadvertently considered the allegation
that Respondent discharged employee Ambos to involve a violation of Sec.
8(aX)() of the Act only. The dismissed allegation is of a violation of Sec.
S(aX3) and (1).
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
The hearing in this matter was held before me in Las Vegas,
Nevada, on various dates in March and April 1979. The
charge was filed by Teamsters, Chauffeurs, Warehousemen
& Helpers Local Union 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri-
ca, herein called the Union, and served on Checker, Inc.,
d/b/a Checker Cab Company, herein called Respondent, on
Certain errors in the transcript have been noted and are hereby corrected.
'There is some dispute as to whether the Association was defunct at that
time. However. the Association is named in the agreement as a party.
247 NLRB No. 19
October 31, 1978. The amended complaint which issued on
February 7, 1979, alleges violations of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended, herein
called the Act. The principal issues herein are whether
Respondent discharged employee Andrew W. Ambos be-
cause of his activities on behalf of the Union and whether
Respondent interrogated and threatened employees in viola-
tion of Section 8(a)(1) of the Act.
Upon the entire record,' the demeanor of the witnesses,
and after due consideration of post-hearing briefs filed by
Respondent and the General Counsel, I make the following:
*FINDINGS OF FACT
I. JURISDICTION
Respondent, a Nevada corporation, with an office and
principal place of business located in Las Vegas, Nevada, is
engaged in business as a taxicab company. Respondent, in
the course and conduct of its business operations annually
derives gross revenues in excess of $500,000 and annually
purchases and receives goods or services valued in excess of
$2,000 from sellers or suppliers located within the State of
Nevada, which sellers or suppliers received such goods in
substantially the same form directly from outside the State
of Nevada.
The complaint alleges, Respondent admits, and I find that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find,
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Union Organizational Campaign
For a number of years, Respondent's driver employees
were represented by Teamsters Local 881 until it was
decertified in 1970. Beginning later in 1970 they were
represented by the newly formed Nevada Professional
Taxicab Drivers Association, herein called the Association.
The last collective-bargaining agreement between Respon-
dent and the Association was negotiated in 1976.: Ambos
was a member of the Association's negotiating team and,
although it appears that the Association had no formally
elected persons responsible for handling grievances, Ambos
and drivers Jessie Adams' and Vinnie Stark generally
handled employee grievances. Thus, Ambos had fairly
frequent meetings with Eugene Maday, Respondent's chief
executive officer.
Adams was ill and was active only up to about 1976.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some time prior to September 19784 the Union became the
successor to Teamsters Local 881 as the collective-bargain-
ing representative of drivers employed by several taxicab
companies in Las Vegas. In September, the Union began
trying to organize the drivers employed by Respondent. The
Union held two organizational meetings on September 13.
Approximately 100 to 120 drivers, most of them employed
by Respondent, attended these meetings.
On October 16, the Union sent a letter to Respondent
demanding recognition in a unit of taxicab drivers. On
October 23, the Union filed a petition in Case 31-RC-4306
seeking a unit of Respondent's taxicab drivers. The Decision
and Direction of Election issued in that matter on January
17. The election was held on February 14, resulting in 12
votes for the Association, 118 votes for the Union, 108 votes
against the participating labor organizations, and 6 chal-
lenged ballots. A runoff election is presently pending.
B. Ambos' Discharge
At the time of his discharge, Ambos had worked for
Respondent for 10-% years. He attended both union meet-
ings on September 13, signed an authorization card for the
Union, and publicly stated during the meetings that he
thought the employees should select the Union as their
collective-bargaining representative. Thereafter, he actively
campaigned for the Union, soliciting signatures on more
than 50 authorization cards prior to his discharge.
Both Ambos and employee Bobby Jernigan testified that,
on a number of occasions prior to his discharge, Ambos
discussed his prounion sympathies in the presence of Art
Cosgrove and Harold Sutton, both admitted supervisors.
Sutton did not testify and Cosgrove denied that he had any
knowledge prior to Ambos' discharge that Ambos was active
in the Union's organizing drive. However, Ray Prado, also
an admitted supervisor, admits that prior to Ambos'
discharge he and Cosgrove discussed the Union's organizing
campaign and the fact that Ambos was a leader in the
campaign. I do not credit Cosgrove's denial of knowledge.
On October 24, Ambos was summoned to the office of
Eugene Maday, who was then Respondent's president and
principal owner.' According to Ambos, when he entered
Maday's office, Maday asked him to sit down and closed the
two doors to the office. Maday then said he had heard some
bad things about Ambos. Ambos asked, "What do you
mean, 'bad."' Maday replied, "The Teamsters union."
Maday then said he understood that Ambos was signing up
drivers, browbeating them, and forcing them to sign. Ambos
denied this, whereupon, according to Ambos, Maday
jumped up, pointed his finger at Ambos and screamed, "I'll
fire any son-of-a-bitch who joins the Teamsters union. You
fucking know what I will do, I'll close the fucking company
down." Ambos said, "Whoa, whoa." Maday then screamed,
"Whoa, whoa, you son-of-a-bitch, I'll fix you. Fucking
Teamsters union, and they're a no-good bunch of people,
and I'll fire you you son-of-a-bitch or any other son-of-a-
bitch who signs a card with the Teamsters or tries to join the
Teamsters union. And I've done it before, and I'll do it
' Unless otherwise indicated, all dates hereinafter in September, October,
November, and December will be in 1978, and those in January and February
will be in 1979.
again. I'll close the fucking company down. Nobody is going
to tell me what to do."
According to Ambos, Maday then sat down and began
talking in a normal tone of voice. Maday said two drivers
had been in to see him that day and had told him that, if
Ambos did not stop pushing for the Union, they were going
to cave his head in. Ambos requested the identity of these
drivers but Maday refused to identify them. Ambos then
said, "Go back and tell these people, whoever they are, that
I'm not afraid of them. I don't think I'm doing anything
wrong, and if they do something to me, tell them they're
going to have to expect retaliation." Maday said, "You are
not tough enough. These guys are tough people. They got
ways and means to handle you and they'll-they're about to
cave your head in, or even worse." Ambos said, "If they're
going to do it to me, they're going to have to kill me.
Because if they just hurt me, I'll come back and I'll blow
their fucking heads off." Maday said, "You'll probably have
to because I can't stop them-I can't make them-they
won't listen to me."
Ambos further testified that Maday then said that the
Teamsters Union had destroyed the Jai Alai situation at the
MGM Grand Hotel and that the Teamsters were liars. He
asked if they had promised Ambos a job. Ambos said no.
Maday asked, "Are they going to hire you after I fire you."
Maday then asked who was going to hire Ambos after he
fired him for signing a card. Maday asked Ambos about his
health, how much money he had in the bank, and if he had
enough to tide him over after he was fired. Ambos said
Maday knew he had health problems and how much money
he had was none of Maday's business. Ambos said that he
still had his pride and self-respect and he did not need
anyone telling him what to do, that he felt he should be able
to express himself and to vote for the Union or go for the
Union.
According to Ambos, Maday then began asking him
questions about union benefits which he could not answer.
Ambos said Maday was speaking to the wrong person, that
he should ask those questions of people from the Union.
Ambos reminded Maday that about 10 years previously,
during the decertification of the Teamsters union, Maday
had accused Ambos of switching over and said the Union
was going to take care of Ambos. Ambos said, "Here it is ten
years later, I am still a cabdriver. I was never out for
anything other than to be a cabdriver. After this meeting is
over, I would like to remain a cabdriver for ten more years.
No one has ever offered me a job. All I want to be is a
cabdriver, but I would like to have union representation."
Ambos asked why he was being singled out. Maday said
because Ambos was reported to him as being a loudmouth of
the Teamsters campaign. Ambos said, "Why don't you get
all 200-and-some people that have signed cards? Why just
pick on me." At that time the telephone rang. Maday said he
had a long distance call. Ambos said, "Thank you very
much," and left.
Maday admits he had a conversation with Ambos on
October 24 but gives a completely different version of the
conversation. According to him, when Ambos came into the
' Although Maday sold Respondent on March I, he continued as
Respondent's chief executive officer. His title is consultant.
86
CHECKER CAB COMPANY
office, Respondent's general manager, John Sinclair, was
there. Both doors to the office were open and remained open
throughout the conversation., After a few minutes, Charles
Frias, owner of a competitor taxicab company came in. Then
Sinclair and Frias walked into the adjoining office and had
coffee. Ambos said, I understand you want to see me. Maday
said yes and began discussing the natural gas plant, stating
that he thought they had finally solved the pressure problem
about which Ambos had been complaining.' Ambos said the
drivers would be glad to hear that.
Maday testified that he then told Ambos that it had been
brought to his attention that a female passenger had
complained that Ambos had abused and cursed her and
thrown her change at her. Maday said he was getting tired of
these complaints or complaints of a similar nature. He
further said that he was investigating the matter, that it
looked bad for Ambos, that he wanted to get clarification on
a few minor points,s and that, if he got the clarification,
Ambos was going to be terminated. Ambos said he did not
curse the passenger; that she had abused and cursed him.
Maday said, "As far as I'm concerned, if I believe this
woman, you are going to be terminated and at this point it
looks pretty bad for you." Ambos then began discussing the
concern of the drivers that the parking lot was not lighted.
Maday said they would rectify the situation. Maday denies
the remarks attributed to him by Ambos and denies that
there was any discussion regarding the Union.
Sinclair testified that about a week after the October 6
Ambos-Price incident Maday told him to investigate the
matter, and about a week later he reported to Maday that
the taxicab authority had concluded that the passenger's
version of what occurred was accurate' and that he thought
Ambos should be terminated. Maday told him to have
Ambos come to his office.
According to Sinclair, on October 24, Ambos was waiting
in the reception area when Sinclair walked out of Maday's
office. Sinclair sent Ambos into Maday's office. Both exit
doors were open. Sinclair returned to his office. Frias arrived
to conclude the details of a pending sale of vehicles from
Respondent to Frias. About 5 minutes after he left Maday's
office, according to Sinclair, he and Frias went into the office
which connects with Maday's office. They did not enter
through Maday's office. They entered directly from the
corridor. However, on three or four occasions while Ambos
was there, Sinclair entered Maday's office from the adjoining
office. Sinclair testified that he overheard portions of the
conversation, principally about the Ambos-Price incident.
There was also some discussion regarding the lack of
pressure in the natural gas plant and bad lighting in the
parking lot.
Frias testified that when he walked into Maday's office,
Ambos, Sinclair, and Maday were there. He and Sinclair
went to Sinclair's office for a couple of minutes. Then they
Sinclair and Maday testified that one door, to an empty office which
contains a coffeepot, is warped and cannot be shut. The other door is to the
reception oflice. In addition to these two exit doors, there is a door to a closet
and a door to a restroom.
' Apparently, Respondent's vehicles are powered by natural gas. However,
the driven had been complaining that the natural gas plant was not producing
enough gas and consequently drivers had to make frequent trips to the garage
for refueling.
'According to Maday, he wanted to get some information regarding the
character of the complainant, Janet Price.
went into the office adjoining Maday's office. The door
between the two offices was open, and Frias overheard some
of the conversation between Maday and Ambos. According
to him, he heard some discussion about natural gas; the
pressure was not up. Maday said he could get that repaired
without any problem. They also discussed something about
the parking lot area. Maday said he had been notified as to
some abuse of a customer where some profanity was used
and some disciplinary action would have to be taken. Both
Frias and Sinclair denied that they heard Maday screaming
or raising his voice.
Ambos denied that he saw Frias that day or that the
conversation with Maday was as related by Maday, Sinclair,
and Frias. He admits that he had a conversation with Maday
regarding the natural gas and the lights in the parking lot
but testified that this conversation was about 2 weeks prior
to October 24. He further testified that at that time Frias
went up to the office at the same time that he did. Frias and
Sinclair state that they are sure that the conversation they
overheard was on October 24 because they were checking
the title to some of Respondent's vehicles which Frias was
purchasing, and Frias paid for the vehicles with a cashier's
check which he had obtained that day from the bank upon
signing a promissory note. The note is dated October 24.
However, Frias admits that he was also on Respondent's
premises to discuss the sale a few days before October 24.
On October 24, immediately after his conversation with
Maday, Ambos went into the parking lot where he had a
short conversation with fellow employees Stewart Moyes
and David Posey. According to Moyes, he observed Ambos
coming from the direction of the office. He appeared very
shaken, very bewildered, very upset. Moyes asked him what
was wrong. Ambos said his life had been threatened. He said
he had just come from a meeting with Maday and Maday
told him there were other drivers who were unhappy and
upset about his activities with the Union; they could do him
bodily harm and his life was in danger. Ambos said he was
very disturbed about it and wondered if he should work. He
said he was advised by Maday that maybe he should have
taken the night off. Both Posey and Moyes told him not to
worry; they did not think anything was going to happen to
him.
According to Ambos, Moyes said he looked white as a
sheet and asked what happened. Ambos replied that he just
had sort of a bad experience and related to them what
Maday said about his life being in danger. He said he did not
want too many people to know because he could hardly
believe what had happened. He also told them about
Maday's threats if they went union and arranged a signal in
the event that what Maday said was true, and then he
proceeded to work.
Shortly thereafter Ambos went to the airport where he
talked to Jernigan regarding his conversation with Maday.
' The October 23 incident report prepared by the field investigator for the
Nevada State Taxicab Authority indicates that Price and the doormen at the
hotel which was Price's destination gave statements to the effect that Ambos
directed certain obscenities at Price; however, while Ambos admitted that an
altercation occurred, he denied that any profanity was used. Ambos was
found guilty following a hearing held on December I and was fined $40; at the
hearing herein both Ambos and Price admitted that obscenities were used by
both, but each testified that the other initiated the exchange of obscenities.
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Jernigan, Ambos said that Maday had threat-
ened his life. Jernigan said that did not make sense and asked
if Ambos was sure. Ambos said that actually his life was
threatened through Maday; that Maday said some of the
drivers were going to get him because of his activities on
behalf of the Union. Ambos further said that he thought that
Maday was actually threatening him; that he had fabricated
the part regarding the drivers. He asked what Jernigan
thought about that. Jernigan said he did not believe that
Maday would threaten Ambos. Ambos also said that Maday
had warned him to be wary of promises that the Union
would make and not fulfill.
Jernigan also testified that, later that evening in the
presence of several of Respondent's drivers, Ambos told
union organizer Bill Fontaine that Maday had said some
drivers had threatened Ambos because of his union activi-
ties. Fontaine said he was not surprised at such tactics and
suggested that Ambos tell everyone in the industry what
Maday had said. On the following day, according to
Jernigan, some drivers asked Ambos about this alleged
threat. Ambos said that his life had been threatened by
Maday. Jernigan said, "Andy, don't say that. You know the
way it was said to you, if you are going to spread a rumor."
Ambos said, "Well, I was getting around to it," and then
proceeded to state that Maday had told him that some
drivers had threatened his life.
Driver Nick Hatzis testified that prior to Ambos' dis-
charge he was present when Ambos told a group of five or
six people that he had just been up to Maday's office and
Maday had threatened his life. Hatzis expressed his disbelief
and immediately left the group and reported this conversa-
tion to Cosgrove and Prado.
Driver Irving "Vinnie" Stark testified that he heard
Ambos relate this conversation on several occasions to
various drivers. On these occasions, at the airport, Ambos
would give a short statement about Maday threatening his
life. Some persons would seek further explanation. In such a
case, Ambos would explain that actually Maday had relayed
a threat made by some drivers. In other instances, persons
would walk away after Ambos' initial statement without
seeking clarification.
Cosgrove testified that around October 27 Ambos came
into the supervisors' office. The day supervisor was also
present. Ambos said that Maday had threatened his life.
Both supervisors told him not to make such statements.
Both Cosgrove and Prado testified that in the presence of
several drivers Hatzis told them that Ambos said Maday
threatened his life. According to Prado, he asked what
Maday said; however, at this point, everyone started talking
and Hatzis did not answer. Cosgrove testified that Hatzis
also said he did not believe it. Prado testified that he also
heard this same comment from several other drivers in
general conversation.
Ambos admitted that he stated many times that Maday
had threatened his life; but denies that he ever made that
statement without an explanation that Maday communicat-
ed to him a threat made by some drivers. He admits that he
never reported the threat to legal authorities and that he
really did not believe his life was in danger. 0
'" He testified, however, that as a precaution he did arrange a signal with
Moyes and Posey so they could send help if he was mistaken and was, in fact,
assaulted.
Maday testified that on October 25, one of Respondent's
drivers said to him, "Hey Mr. Maday, I heard you
threatened Ambos' life." Maday said, "What are you talking
about?" The driver said, "Ambos said you had threatened
his life." According to Maday he thought the driver was
kidding, but then he heard the same comment from someone
else. Thereafter, he asked Cosgrove what it was all about.
Cosgrove said he had heard it too. Maday then asked
Sinclair to investigate. According to Sinclair, he talked to
Supervisors Sutton, Cosgrove, and Prado. Both Cosgrove
and Sutton said they had heard Ambos make this statement
in the presence of other drivers. Jernigan was the only driver
specifically named. Sinclair testified that, when he spoke to
Jernigan, Jernigan said it was true that he heard Ambos say,
in the presence of two supervisors, that Maday had threat-
ened Ambos' life. Jernigan also said that Ambos had made
the same comment to him at the airport but then changed it
to say that Maday had warned him that two other drivers
were going to make an attempt on his life. Jernigan said that
he felt Ambos was a fool, in view of the Price situation, to be
going around making ridiculous statements of this nature,
that Maday would not threaten Ambos, and that, if he
meant to do one harm, it would happen and Maday would
be somewhere else with 50 cabdrivers for witnesses. Jernigan
denies making this statement. Cosgrove, Sutton, and Jerni-
gan all gave Sinclair written statements. Sinclair did not
speak to Ambos.
Maday testified that he was planning to terminate Ambos
on the following Monday for the Price incident; however,
Ambos' statements that Maday was threatening his life were
jeopardizing Respondent and Maday's licenses so he felt he
had to fire Ambos for gross insubordination. He admits that
Ambos was not discharged for the Price incident. According
to Maday, he chose the term "gross insubordination"
because it is listed in the Association contract as an
"intolerable offense" for which one may be discharged for
the first offense.
The contract provides:
ARTICLE XIII-DISCIPLINE
Intolerable offenses are those which would be consid-
ered such by a prudent man, and by way of exemplifica-
tion rather than limitation, include the following:
Gross Insubordination,
Dishonesty,
Driving in a reckless manner,
Drinking while on duty, or within two hours
before coming on duty,
Fighting while on duty, except in self defense,
Abuse of a customer,
Deliberate abuse of company property,
Disloyalty,
Offensive actions or speech in a public place, while
on duty,
Refusal to transport sober and orderly patron,
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CHECKER CAB COMPANY
Failure to report an accident immediately, or any
other material deviation from the Company's pre-
scribed accident procedures,
Conviction of a felony,
Taking or holding employment outside the Com-
pany, or engaging in other activity outside the
Company, which constitutes the sale of the employ-
ee's services, whether or not an authorized leave,
Four like or unlike major offenses within any 12-
month period.
By way of exemplification rather than limitation,
gross insubordination is deemed to include (I) verbal or
physical abuse of a company official and (2) action
which jeopardizes the Company or its rights, privileges,
or goodwill, done deliberately to injure the Company or
in reckless disregard of the possible effect upon the
Company.
On October 28 when Ambos reported to work, he was
summoned to the supervisors' office. Cosgrove handed
Ambos a termination notice which listed "gross insubordina-
tion" as the reason for the termination. According to
Ambos, Cosgrove said, "They told me to give this to you, I
don't know what it's all about." Ambos read the notice.
Cosgrove said, "I don't want to do this, it's probably the
hardest thing I ever had to do." Ambos asked to use the
telephone. After he concluded the call, Cosgrove said,
"You're not surprised are you, the way you were talking
about the Union, you shouldn't be surprised."
Jernigan testified that several times prior to his discharge
Ambos had expressed his prounion feelings in Cosgrove's
office. On a couple of these occasions, Jernigan suggested to
Ambos that he was being too open, making such statements
in the office. Cosgrove agreed, saying, "Later, [Jernigan] is
telling you right. Later is better, not here." Cosgrove also
said, "Whether a union is voted in or not, regardless of what
happens, Mr. Maday owns the property, and you owe him
that much respect."
Jernigan also testified that during the conversation when
Cosgrove gave Ambos his termination letter, Cosgrove said,
"I don't see how you can be surprised. I told you to cool it
around here, and [Jernigan] told you to cool it around here
and you were told to cool this union work around here."
Cosgrove further said he thought things could be rectified,
and, if Ambos wanted to change his way of thinking, he
could talk to Maday on Monday morning. Ambos said he
was not interested in talking to Maday on Monday.
Cosgrove also said during this conversation, "Do you think
the Union will take care of you now? I'll tell you, I think you
should always put your family first. I know you have a
family and a home. I think you should always put your
family first. Do you think the Union is going to take care of
you now." Jernigan testified that he does not recall that
Ambos asked Cosgrove what the term "gross insubordina-
tion" meant in the termination notice. He does recall,
however, that Cosgrove said, "I've had a couple of guys tell
me that you have been going around saying that [Maday]
threatened to kill you." Supervisor Harold Sutton was
present during this conversation.
Later that day, according to Jernigan, Cosgrove asked
him if the Union would obtain a job for Ambos, if they
promised anything. Jernigan said he thought the Union
owed it to Ambos. Cosgrove said, "You told him a couple of
times to cool it about the Union on company property, that
there was a better place." Jernigan said, "We both know he
was fired for his union activity." Cosgrove said, "I don't
argue with that. What I argue with is he shouldn't do it here.
He would stand in the office and talk to drivers. He would
stand outside and talk to drivers. I just figured he should
have carried it on in other places." Cosgrove also said, at
some point during the conversation, "You know how these
cabdrivers said, at some point during the conversation, "You
know how these cabdrivers love to talk, anyway. Once
[Ambos] told a few of them Maday had threatened his life,
it's got to get right back upstairs, you know that." Jernigan
said he thought Ambos made it clear that what he was
saying was that some of the drivers had threatened his life to
Maday. Cosgrove said, "That's not the way it was told to
me."
Cosgrove testified that he told Ambos, "I got a termina-
tion for you. It's for gross insubordination." Ambos
snatched the notice and went out into the drivers' room,
which was full of drivers, and said, "This is what you get
when you fool with the Union." Cosgrove testified that he
was quite busy at the time and did not thereafter pay
attention to what Ambos was doing. He denied that Jernigan
came into the office before Ambos left and went into the
drivers' room. However, he testified that, when Jernigan
came into his office for his trap sheet, Jernigan said, "Well,
Andy got it. I told him to keep his mouth shut, but he just
wouldn't." Jernigan denies making this statement.
Cosgrove also testified that after Jernigan finished work
that day he came into Cosgrove's office. Jernigan said, "I
told that Ambos to keep his mouth shut; that he shouldn't
spread these rumors around on what Maday has done to
him. Nobody is going to believe him on that matter."
Jernigan then asked if Cosgrove thought there was any
chance to straighten out the matter. Cosgrove replied, "The
only chance . . . is to go upstairs and see the men that's
involved with this whole thing." Cosgrove denies saying that
he and Jernigan had told Ambos to cool it on company
premises regarding the Union or that he thought Ambos had
been discharged for union activities.
That night, Prado drove Jernigan home. According to
Jernigan they sat in front of Jernigan's house for a few
minutes and talked. Jernigan asked Prado if he was
responsible for Ambos' discharge. Prado said he had nothing
to do with it; that, if he wanted to fire Ambos, he had had
numerous occasions to do so over the years, one recently
concerning a female passenger, but he did not feel that was
grounds for discharge. Jernigan said he thought Ambos was
discharged because of his union activities. Prado did not
deny this. Rather, he said, "There is going to be no union. If
Maday wants to, he can hire 20 new drivers. He can fire 15
or 20 and hire 15 or 20 new drivers the same day if he wants
to. There will be no union." Prado asked what Jernigan
thought the outcome would be if the election were held that
day. Jernigan said he thought' the Union would win.
Jernigan asked what Ambos' chances of rehire were,
pointing out that he had a wife who did not work and four
children, so obviously he needed to work. Prado said, if he
wanted Ambos back, he could come back, that, if he wanted
Maday to rehire Ambos, Maday would do so, but that
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ambos would have to change his way of thinking. Jernigan
said, "Do you think it could be worked out?" Prado said yes.
Jernigan said, "Why in hell can't we just vote and get it the
hell over with. It's not going to drastically change either
way. I'm not going to be making any more money. The only
thing we are looking for is job security, better working
conditions. Why the hell can't we take it at face value and
vote and get it over with?" Prado said, "We'll see."
Prado testified that he and Jernigan did talk about
Ambos' discharge on the way home. He denies any discus-
sion once they reached Jernigan's home. According to him,
Jernigan said Ambos' termination was unfortunate, as
Ambos had a family and Respondent had been good to him.
He said that a few nights before, Ambos had told the union
organizer, Fontaine, that Maday had threatened his life and
Fontaine told Ambos to tell everyone that Maday had
threatened his life. Jernigan said he did not believe Maday
would make such a threat, and he had told Ambos not to say
this because he was going to get terminated.
According to Prado, Jernigan also said that Ambos owned
him money and he would not want Ambos to lose his job
before he was repaid. Jernigan asked if Prado could do
anything to assist Ambos in being reinstated. Prado said
Maday had terminated Ambos and he could not try to undo
anything that Maday did. Prado said he was sure the
discharge was legitimate because there was another incident
of intolerable offense relating to abuse of a customer that he
had personally reported to Maday and to the taxicab
authority, and an intolerable offense brings termination.
Jernigan said, "I want you to know that I am not interested
in Ambos' activities or any union activities which will
jeopardize my standing with the Company." Prado denied
saying there would be no union at Checker Cab or asking
Jernigan what he thought as to the relative strength of
Respondent and the Union or stating that he could arrange
Ambos' rehire if he wanted to. Jernigan denied that he said
he had advised Ambos not to spread a story about Maday
threatening him or that he had told Ambos that he would be
terminated or that he said anything to Prado about Ambos'
owing him money. He did not recall saying that Fontaine
had told Ambos to tell everyone about the threat but he does
not deny it. According to Jernigan, since it was true he may
have said it.
C. Alleged 8(a)(1) Activity
Alan Davis and Brian Barrett, both then employed by
Respondent as drivers, testified that near the end of October
they and several other drivers were eating at the Stardust
Hotel Buffet when Prado and another driver arrived. Davis,
Barrett, and their companions were discussing the Union,
union authorization cards were lying on the table, and Davis
was trying to persuade the drivers seated there to sign
authorization cards. Prado and his companion sat at a table
close by. Davis testified that Prado said, in a loud voice,
"Anyone having anything to do with the Union will be
terminated, Maday will not tolerate a union." Barrett
testified that Prado got up, approached Davis and Barrett's
table, and said that anyone having anything to do with the
" Although the notice does not specifically so state, essentially it is a
warning that the income produced by the driver is low in comparison with
fellow drivers.
Union would be terminated immediately upon Maday's
orders. He then walked past their table. Davis testified that
someone at his table said to him, "I'll give you 8 to 5 to
finish by the week." According to Davis, he laughed because
he did not believe that. Davis further testified that as Prado
made the statement he was looking in the direction of Davis'
table but he could not recall whether Prado made the
statement as he was getting up from his table or as he walked
toward Davis' table on the way to the buffet table.
According to Barrett, someone at the table suggested that
Prado's remark was directed toward Davis. They then
discussed Prado's remark and joked about it.
Prado admits being in the Stardust Cafe twice in the fall of
1978. He denied seeing either Barrett or a group of
Respondent's drivers seated at a table with union authoriza-
tion cards on the table. He further denied having any
conversation with such drivers or making any statement to
them concerning the Union or Maday's having anyone
discharged because of union activities.
On or around February 3, driver Catherine Sackegt was
called into the office by Prado. According to Sackegt, Prado
asked what she thought about the Union, whether she was
for it or against it. He did not say to which union he was
referring. Sackegt said she was for the Union because of job
protection; that people would not be fired or hired as quickly
as they had been. She said she felt she needed the Union
because she had someone other than herself to protect.
Prado said, "The Union is not going to help you that much
anyway." Sackegt said, "We'll just see about it." Prado
handed her a notice and said, "We will see you at the polls."
The notice, known as a low-book letter," cites as a violation
"incompetence and inefficiency," and states as the penalty
"failure to show improvement will result in time off or
termination." This was Sackegt's second low-book letter.
The first was dated December 22, 1978. Prado denied any
discussion of the Union during this conversation.
On around February 20, according to Sackegt, the
dispatcher, Myrt, asked Sackegt to call her when she
checked out. When Sackegt did so, Myrt asked, "[w]hat kind
of girl [Sackegt] was, [and said] that Maday had a paper
asking everyone else what kind of a girl-if I was for the
Company or against the Company. She said, 'Of course all'
the other girls were for the Company."' Sackegt said she was
for the Company. Myrt did not testify and there is no
evidence that she is a supervisor or that, because of her
position as dispatcher, employees could reasonably think she
was a supervisor. On February 23, Sackegt was discharged.
There is no allegation that she was discharged for reasons
violative of the Act.
Jernigan testified that around February 3 he talked to
Cosgrove after receiving a low-book letter, stating that he
wanted to see Maday. According to Jernigan, Cosgrove said,
"I suggest you talk to him and make a stand. Let him know
how you stand one way or another. You go upstairs and
have a talk with him and let him know your stand in the
Union versus the Company situation."
Cosgrove testified that, when he gave Jernigan the low-
book letter, Jernigan disputed its validity. Cosgrove said,
"There is only one way to find out what the problem is, go
90
CHECKER CAB COMPANY
upstairs and speak with the man and he will show you on the
computer where you are." Jernigan said he thought he got
the letter because of his possible involvement with union
activities. Cosgrove said, "Well, there's no way. This letter
was given strictly legitimate from the computer thing."
However, Cosgrove admits that he told Jernigan to be sure
and let Maday know where he stood as to the Union versus
the Company.
Jernigan did talk to Maday. He stated that he wanted to
talk about the low-book letter. Maday showed him a
computer sheet and they discussed Jernigan's performance
relative to the average for a period of several weeks.
According to Jernigan, he said he wanted to be evaluated on
his job performance, not on his association with Ambos,'2
and that if he was being evaluated on his performance he
would put in more time and do what he had to do. He then
said he wanted to talk to Maday about a couple of things-
that he understood that Maday was angry because Jernigan
took Ambos to the hospital. Maday said no, if Ambos had
telephoned him, he would have taken Ambos to the hospital.
Jernigan said he was led to believe that Maday was very
angry. Maday said he knew Jernigan had taken up a
collection for Ambos from Respondent's drivers and that if
Jernigan had asked him he would have made a donation.
Jernigan further testified that Maday said, "I probably
shouldn't be talking to you about this but since you brought
it up how do you think we stand?" Jernigan said, "If we vote
today, I think the Company would win." Maday said,
"What percentage?" Jernigan said "70/30." Maday said, "I
think that's a little strong. It's close. It's a close fight . . . if
we voted right now, I think maybe we would lose it." Maday
said Respondent had gone for 12 years without a strike and
that probably gave Respondent a slight edge with the older
drivers. Maday then asked, "If the Union wins the election
and there's a strike, are you prepared to picket or are you
prepared to cross a picket line?" Jernigan said he did not
think there would be a strike. According to Jernigan, Maday
said older men like Al Bums or Hi Henry could not cross a
picket line, but they needed their jobs, what about them.
Jernigan did not respond. Maday said, "If there is a strike
my cabs will go on the streets, someone will drive them, I
won't lose a day's work." They then had a discussion
regarding Ambos during which they mentioned a meeting in
September of taxicab drivers to protest the taxicab authori-
ty." Jernigan said he could see now that Ambos probably
had the Union behind him or in the back of his mind at that
time, even though Ambos never mentioned it to him. Maday
said he could see that, and he could see now that perhaps he
should not have supported that protest. Maday also said if
the Teamsters won the election there would be a strike. He
further said, "By the way, I think you might like to know
that the Teamsters don't even want you. Jim Ross told me
himself that you guys were being pushed on him, that he
didn't want you, that you were being pushed on him."
Maday denies that he mentioned a strike or the election or
inquired whether Jernigan would cross a picket line. Ac-
cording to him, Jernigan asked why he received a low-book
letter. Maday said, "Apparently you are a low-booker."
Jernigan said, "I wish this union bullshit would end."
Maday said, "What are you talking about? I thought you
wanted to see me about this low-book." Jernigan said, "I
wish this union bullshit would end. As far as my association
with Ambos. Andy Ambos admitted to me that he fabricat-
ed the story about the termination; that he made up the story
that you had threatened his life." Maday said, "This has
nothing to do with Ambos or the Union. You are a low-
booker and that's why you got the letter. Maday then
showed Jernigan certain items on a computer sheet. Jernigan
said, "I did not realize I was doing that bad. I better get on
it." Maday said that would not be a bad idea and explained
that a low-book letter can be beneficial to a driver because he
realizes he is not competitive with other drivers, that the
letter did not mean Jernigan was being discharged. On
surrebuttal, for the first time Maday testified that Jernigan
told him that Ambos owed him a tremendous amount of
money. Maday asked how he expected to collect. Jernigan
said Ambos expected a large judgment out of the present
NLRB hearing; he would end up with a lot of backpay and
could repay Jernigan. Jernigan denied making such a
statement, or that Ambos owed him money. He also denied
saying that Ambos admitted he fabricated the story about
Maday threatening his life.
Samuel Marber, presently employed by Respondent as a
driver, testified that in late January or early February, when
he received a low-book letter, he talked to Maday. Maday
explained that a low-book letter was intended to get a driver
to improve rather than to frighten him. He showed Marber a
computer sheet. Marber questioned the accuracy of the
information and pointed out several things. Then, according
to Marber, Maday asked if Marber would picket Respondent
if Respondent went union. Marber said he did not know.
Maday said, "Of course there will be a strike if the Company
goes union. Are you going to picket?" Marber said he started
out many years ago with big ambitions and here he was
almost 40 years old and driving a cab, so he just takes each
day as it comes.
Marber also testified that Maday inquired regarding
Marber's music career. Maday then asked a second time if
Marber was going to picket Respondent. Marber said, "I just
don't know. I just take each day as it comes." Maday said he
recalled that Marber had crossed the picket line when there
had previously been a strike against Respondent by the
Teamsters. He also said there would be a strike if the
employees voted for the Union. Marber said he thought
Maday did not have a good rapport with the drivers; that he
would not be having labor problems if he had paid more
attention to the feelings of the drivers. Also, he may have
pointed out some injustices which he experienced during his
employment by Respondent.
According to Maday, he showed the computer sheet to
Marber. Marber asked if several things were taken into
consideration. Marber said Respondent had been picking on
him unjustly; that he had been charged for accidents which
were not his fault. Maday said they could only go by the
police reports since frequently contradictory stories were
involved. He also said there were a lot of things Marber did
wrong for which he was not reprimanded. Marber said,
"Such as what?" Maday mentioned driving through a
" Maday was the only taxicab company owner to suppor the protest.
91
1 Ambos and Jemilgan admittedly are close friends.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular field. Marber asked how he knew about that.
Maday said, "I have seen you, so sometimes you get away
with things and sometimes you don't." Marber asked who
would win the election, the Teamsters, the Association, or
the Company. Maday said he had no idea, it was strictly up
to the drivers to decide. Marber asked if there would be a
strike if the Teamsters won. Maday said it was possible, he
had no way of knowing. Marber said, "If there is a strike, I
have a problem." Maday asked, "What is your problem?"
Marber said he was hired by, and drove for, Respondent
during the last Teamsters strike and they were beating on his
head all the time. He said, "I hate like hell to have to go
through that again." Maday said, "you have a problem, only
you can figure that one out." Maday denied that he asked
Marber or any other driver whether he would picket
Respondent if the Teamsters won the election or that he said
there would be a strike if Respondent went union.
Marber also testified that on February 13 he asked Prado
if he could attend the February 11 "Union-Association-
Respondent" debate. Prado told him that, through an
intermediary, Ambos had sent him various materials con-
cerning the Union which included a list of drivers working
for Ambos. Marber said, "If you see Ambos tell him he owes
me for backpay." Prado asked why Ambos would send him
such a list. Marber said he did not know and turned to leave
the drivers' room. Prado called him into the office and said,
"What do you think [Ambos'] motivation or motive would
be to do this?" Marber said, "It's either true or it isn't true.
If true, I don't know. If it isn't true, I don't know."
The next evening at the debate Marber related this
conversation to Ambos. The night after the debate Prado
told Marber he had seen him with Ambos and asked what
Ambos said regarding the list. Marber said Ambos said he
did not know anything about the list. Prado said, "Sure,
that's what he says now." In a later conversation, Prado told
Marber that driver Norman Spillers have given him the list.
The following day, according to Marber, Marber told
Spillers what Prado had said. Spillers became angry and said
to Cosgrove, "Look, I'm opposed to the Union, but I don't
like my name being used this way. I never did it. And I have
to live with the drivers out on the cablines." Marber does not
remember if Cosgrove made any comment. Spillers asked to
see Maday but Maday was in conference.
Jernigan testified that after the election, around February
20, several drivers told him that Prado had a list of 26 names
of union sympathizers. Prado allegedly told one driver,
"Checker Cab has plans for Mr. Jernigan," and told driver
Jim Rose that Jernigan would be discharged. According to
Jernigan, drivers Lloyd Harris, Ralph Gentile, Jim Rose,
and Sam Marber were some of the drivers who told him that
Prado had said Jernigan's name was on the list. Marber
denied telling Jernigan that Prado had said Jernigan's name
was on the list. Rather, he testified, that when he discussed
the list with Jernigan he told Jernigan that Prado said his
(Marber's) name was on the list. He cannot recall if Jernigan
said Prado had said that Jernigan's name was on the list.
Marber also told other drivers what Prado had said
regarding the list.
Moyes testified that there was talk among the drivers
regarding Prado's having a list. Prado never actually told
Moyes he had a list. However, according to Moyes, about a
month before the election, Prado, in his presence, made a
gesture as if checking names off a list and said, "Ambos
gone, Moyes gone." Moyes further testified that in the past 2
years Prado has on several occasions made remarks to him
indicating that he was probably going to be discharged.
Jernigan testified that, after Rose told him what Prado
had said regarding the list and Jernigan, he went to Prado's
office. According to him, he said, "You are looking for me?"
Prado said, "I know how to find you if I want to." Jernigan
said, "Apparently not, apparently you are looking for me, I
keep getting these messages from other drivers that you are
having a lot of things to say about me." Prado said, "I can't
help what other drivers say to you, when I talk to them I
can't help what they say to you." Jernigan said, "Well, I
hear you got my name on your list." Prado said, "I have a
lot of lists that go through my hands here." Prado then held
up a dispatch sheet and said, "Your name is on this list."
Jernigan said, "You know damned well this is not the list,
why don't you and I talk this over, let's settle it now between
the two of us." Prado said, "No, I have nothing to say to
you."
According to Jernigan, he then said, "I want to know
about your list with 26 names. You are a damned liar. You
don't have a list. Now why don't you admit it?" Prado said,
"No, if I had a list I would tell you." Jernigan said, "No, you
wouldn't. You don't have the balls to tell me or else you
would have. After all these years why not come to me? Why
send me messages?" Prado said, "As a matter of fact, I do
have a list. When this is all over with, I'll show it to you, I'll
let you analyze the handwriting. It's in Ambos' handwrit-
ing." Jernigan said, "[Prado], you are a damned liar. You
know you have got no list. You know [Ambos] isn't giving
you nothing. Andy wouldn't give you the time of day, and
you know it." Several other statements were made and then
Jernigan said, "In the future if you have got something you
want me to know, just stop me and tell me. Don't go to other
drivers."
Prado testified that 2 or 3 days prior to the debate Spillers
gave him a list of names and two pieces of campaign
literature and said, "Prado, Ambos sent you those." Prado
admits initiating individual conversations regarding the list
with Marber and driver Stremcha. According to Prado, he
told Marber, "I have a list that supposedly was sent to me by
Ambos, and your name is on it. It says that you now belong
to him, meaning that you're propagating union activities, I
guess, I don't know, but I want to tell you your name is on
here. Would you know why it's on there." Marber said, "I
wouldn't know but I'll find out." Prado further testified that
on the night of the debate Marber volunteered the informa-
tion that he had talked to Ambos and Ambos had denied
making such a list.
Prado admitted making the same statement and posing
the same question to Stremcha. Stremcha replied, "I
wouldn't know, but is there anything I can do about this?"
Prado said, "Well, you could ask Ambos or you could go up
there and see the general manager as he is the man that you
ask things of."
As to the conversation with Jernigan, Prado testified that
Jernigan said, "I understand you are looking for me." Prado
said, "If I was looking for you, I know where I can find
you." Jernigan said, "I understand you have my name on a
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CHECKER CAB COMPANY
list." Prado said, "[Jernigan] I have got your name on this
list here; on the list next to me. The list is from last week. I
have your name on various lists here."
Jernigan said, "I understand you have been telling the
drivers you have my name on a list." Prado said, "[Jerni-
gan], anything you need to know, I'll tell you." Jernigan
said, "No, you won't." Prado said, "Look [Jernigan],
anything I say to you obviously is going to be wrong. I don't
want to argue with you. I don't want to discuss anything
with you that doesn't need any discussion. Why don't you
just leave me alone. I have a list and I'm not going to tell you
what's on it. I'm not going to tell you where I got it. I'm not
going to tell you what it contains because it doesn't concern
you." Jernigan said Prado had been telling drivers that his
name was on that list and Prado should not tell other drivers
things he should be telling Jernigan. Prado denied telling any
driver that Jernigan's name was on the list. He did not testify
as to whether Jernigan's name was actually on the list. His
description of the document was that it was an unsigned
handwritten list of names with the legend "all of these
drivers are now mine." On cross-examination, Prado admit-
ted he told Jernigan that the election was over and in a few
days everything would be settled; he would show him the list
and he could see for himself.
D. Conclusions
1. The alleged independent 8(a)(l) conduct
The General Counsel contends that Respondent violated
Section 8(a)(l) of the Act by interrogating Marber and
Jernigan as to whether they would cross the picket line in
the event that the Union won the election. Respondent
contends that Marber and Jernigan's testimony in this
regard should not be credited. I found Jernigan to be a very
impressive witness who responded in a cogent and persua-
sive manner to a long, painstaking cross-examination. His
testimony was consistent and his demeanor convincing."
Furthermore, the testimony of Marber and Jernigan as to
their separate conversations with Maday tend to be mutually
corrobative since they occurred at or about the same time
and the statements allegedly made by Maday to each of
them were quite similar. On the other hand, I found Maday
to be an unreliable witness who tended to slant his testimony
in a manner favorable to Respondent. Accordingly, I credit
the testimony of Jernigan and Marber and find that
Respondent violated Section 8(a)(l) of the Act by this
interrogation.
I also find Sackegt to be an honest, reliable witness, and I
credit her testimony. Accordingly, I find that Respondent
violated Section 8(aXl) of the Act by Prado's interrogation
of Sackegt as to her union sympathies.
The complaint alleges that Respondent created the im-
pression that it had the union activities of its employees
under surveillance by telling employees it had a list of the
employees who supported the Union. I find no merit in this
allegation. There was no indication that the names had been
acquired through surveillance or that Prado failed to identify
I have considered and find unpersuasive Respondent's argument as to
Jernigan's lack of credibility.
" Even though the Association was found to be defunct, Association
the source of the list, leaving the employees to reasonably
assume that it had been acquired through surveillance.
Rather, he made clear in each instance that the list had been
given to him unsolicited. Accordingly, I find that Respon-
dent did not create the impression of surveillance.
I also discredit Prado's denial that he told employees that
they would be discharged if they engaged in union activities.
I found Davis and Barrett to be honest, reliable witnesses
whose testimony was mutually corroborative. I have careful-
ly considered Respondent's argument as to their lack of
credibility and find it unpersuasive. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act by Prado's
statement that employees would be discharged for union
activities.
I further find violative of Section 8(aX1) of the Act
Prado's October 28 statement to Jernigan that there would
be no union and that Respondent could replace a number of
the drivers and Cosgrove's statements to Jernigan indicating
that Ambos had been discharged because of his union
activities. Although not specifically alleged in the complaint,
it was fully litigated. As I have indicated above, I found
Jernigan to be a particularly honest, reliable witness, and I
credit him. Accordingly, I discredit Cosgrove's and Prado's
denials that they made such statements.
2. The discharge of Ambos
Respondent contends that Ambos was discharged for an
"intolerable offense" in accordance with the Association
contract." The contract lists gross insubordination as an
intolerable offense for which an employee may be discharged
for the first offense. It also defines gross insubordination as
including "(1) verbal or physical abuse of a company official
and (2) action which jeopardizes the Company or its rights,
privileges, or goodwill, done deliberately to injure the
Company or in reckless disregard of the possible effect upon
the Company."
The General Counsel argues that Ambos was accorded
disparate treatment since other employees were accorded
less harsh treatment for serious misconduct. From a logical
standpoint, this argument is appealing, for a reasonable
person might well consider some of the conduct which
resulted in only a warning to be as serious or more serious
examples of misconduct. However, most of the evidence
adduced by The General Counsel was what the contract
described as a major offense subject to four warnings prior to
discharge. Ambos' conduct certainly falls within the descrip-
tion of an intolerable offense, even though I do not credit
Maday's assertion that he considered Ambos' conduct as
placing certain licenses held by Respondent and/or Maday
in jeopardy.
Although I do not doubt that Ambos' conduct angered
Maday when he realized the extent to which Ambos was
disseminating his story, any investigation would have reveal-
ed that, whatever words Ambos may have imprudently used,
he was referring to Maday's alleged communication to him
of a threat by third persons. I do not believe that anyone
could have seriously considered such to threaten one's
contracts had embodied the working conditions of employees for a number of
years and there is nothing on the record to establish any change in such
conditions prior to Ambos' discharge.
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
license. Yet, the language of the contract as to gross
insubordination is so broad as to give Respondent wide
discretion, and the evidence adduced by the General Counsel
does not cover the sort of misconduct from which one can
glean a pattern as to Respondent's determinations as to what
is and what is not considered gross insubordination. Accord-
ingly, I reject the General Counsel's argument as to
disparate treatment.
With three exceptions, the independent 8(a)(1) conduct
occurred 3 to 4 months after Ambos' discharge and, though
of some relevance, was not so extensive or of such a similar
nature as to be critical in the determination as to the
motivation behind Ambos' discharge. The exceptions are the
statements by Cosgrove indicating that he thought Ambos
had been discharged because of his union activities and the
threats of discharge made by Prado. It is undisputed that
neither Cosgrove nor Prado was involved in the decision to
discharge Ambos, and the evidence is insufficient to estab-
lish, without reference to alleged statements by Maday to
Ambos, that their statements were part of a pattern of illegal
conduct. Thus, the determination as to whether Ambos'
discharge was illegally motivated must be based principally
on what was said by Maday during his October 24
conversation with Ambos.
Their versions of what occurred during this conversation
are totally different. Bolstering Ambos' version is the
immediate account of the conversation which he gave to
Moyes and Posey. Bolstering Maday's version are the
portions allegedly overheard by Sinclair and Frias.
Respondent argues that the alleged conversation between
Moyes, Posey, and Ambos probably never occurred. The
basis for this argument is (1) inconsistencies as to the time
reflected on Moyes' and Ambos' timesheets; (2) Jernigan's
testimony that his conversation with Ambos was shortened
because Ambos did not wish to discuss the incident in the
presence of other drivers, yet Ambos discussed it with
Moyes with whom he was admittedly less than friendly; (3)
it is incredible that Ambos would arrange a signal call for
help when he testified he never believed Maday's statement
that two drivers had threatened him; (4) it is incredible that
Ambos would arrange a signal call for help with Moyes since
he did not like Moyes and, in view of his relationship with
Moyes, Moyes would be a prime candidate as one of the
drivers who threatened him; (5) Ambos never reported the
alleged threat to any legal authority because he did not
believe the threat; (6) Ambos' testimony that he did not
believe the alleged threat is totally inconsistent with Moyes'
testimony that Ambos was extremely shaken up, but this
disturbed condition is consistent with Maday's version of the
conversation-Ambos' imminent discharge for the Price
incident; (7) Ambos testified that he related to Moyes and
Posey what Maday said regarding discharging drivers who
signed cards and other threats of action in the event the
drivers selected the Union as their collective-bargaining
representative, yet Moyes' version does not include this; and
(8) Ambos' failure to mention this conversation in his
prehearing affidavit.
Many of the above are insubstantial or inconclusive and, I
conclude, cannot be relied upon in making a credibility
determination. Thus, the record establishes that the time of
day listed on the trip sheet when the driver is on the streets is
often a guesstimate. Therefore, a difference of a few minutes
is unreliable. As to the probability that Ambos would relate
the conversation to Moyes but discontinue his conversation
with Jernigan when other drivers approached, there is no
evidence that Jernigan's testimony that Ambos "didn't want
to talk in front of them" was based on anything other than
Jernigan's assumption and there is nothing in the record
which provides a basis for testing such an assumption.
Assuming its validity, the reason for this attitude is
speculative. It may have been that Ambos did not want to
continue the discussion because Jernigan was challenging his
account, because the other drivers were not Checker
employees, because Ambos had not yet decided to freely
relate the conversation, or any number of other possible
reasons. On the other hand, Ambos did not initiate the
conversation with Posey and Moyes; rather Moyes inquired
what was wrong at a time in such close proximity to the
incident that it is certainly arguable that Ambos had not had
time to formulate any plans for dealing with the situation.
Similarly, I am unconvinced by Respondent's argument
that the conversation is improbable because Ambos testified
that for the last 3 years he and Moyes had disagreed
vehemently and were not on speaking terms; and that the
alleged arrangement for a help signal was, under the
circumstances, improbable. I am not prepared to assume
that, just because two people have a disagreement, the cause
of which is not established on the record, and discontinue or
curtail usual communications, one of them would wish
bodily harm to the other or would refuse to agree to call for
help if signaled that the other was in physical danger.
Further, the simple arrangement of a signal for help is a
mere precaution which I do not consider inconsistent with a
disbelief as to the genuineness of the threat.
Also, Ambos' alleged shaken condition is such as would
be just as consistent with a realization that Maday would go
to such lengths as it is with a threat of imminent discharge
because of the Price incident. Similarly, I place no reliance in
the fact that the Moyes conversation is not specifically
related in Ambos' prehearing affidavit. Ambos did tell the
Board investigator that he had related the conversation to
other, unnamed employees. Furthermore, because of the
coolness in their relationship, there appears to be no reason
for Moyes to support a story fabricated by Ambos. Certainly
no such reason was established on the record. Accordingly, I
credit Ambos and Moyes that the conversation did occur
and the differences in their testimony will be discussed
below.
As to the testimony of Frias and Sinclair, I have no reason
to discredit Frias that he overheard portions of a conversa-
tion between Ambos and Maday. As with Moyes, no reason
for bias was established on the record. On the other hand,
considering Frias' several visits to Respondent's office in
connection with the purchase of the vehicles, I am not
particularly impressed with the certainty with which Sinclair
and Frias profess to recall the date they overheard this
conversation. Even assuming that they are correct as to the
date of the conversation they overheard, it is undisputed that
they did not hear the entire conversation nor were they in a
position to hear some portion of the conversation.
Thus, the basic question remains whether Ambos or
Maday should be credited. Actually I do not completely
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CHECKER CAB COMPANY
credit either of them. Maday had a tendency to slant his
testimony favorably to Respondent. In view of the openness
of Ambos' union activities and Prado's admission that such
activity was common knowledge prior to Ambos' discharge,
I do not credit Maday that he had no knowledge of Ambos'
union activity until November. Also, since Ambos was an
undisputed leader in Association affairs and Maday admits
he was a leader in the protest against the taxicab authority, I
find evasive his testimony that, even after he learned of
Ambos' involvement with the Union, he did not know that
he was a leader in the campaign. I also note his denial that
he received a subpena; and, when questioned as to the
identity of the person who signed the receipt for delivery of
the subpena, he professed not to recognize the name even
though it later appeared that she was a receptionist located
right outside his office.
Respondent makes several other arguments as to Ambos'
lack of credibility, most of which are not convincing. One is
Maday's lack of motivation to harm Ambos because of his
union activities, inasmuch as Maday allegedly expected the
Association contract to be a bar to any Teamsters attempt to
secure recognition. However, if I am to assume that Maday
was aware of the Board's contract-bar theory, then it is only
logical that I also assume that he was aware that, in the
circumstances, it was possible that the Board would con-
clude that the Association was defunct. I further find
unpersuasive the argument that Maday's lack of illegal
motivation can be inferred from the fact that Respondent
over the previous 7 or 8 years had hired drivers who had
been employed by competitors whose drivers were represent-
ed by the Union. Nevada is a right-to-work State, so no
assumptions could be made that these drivers were members
of the Teamsters'. Furthermore, there was no particular
reason for concern when hiring these drivers at a time when
the Teamsters were not trying to organize Respondent's
employees.
Respondent also argues as indicia of Ambos' lack of
credibility that Ambos denied to the taxicab authority
investigator that he used any profanity toward Price during
the Price-Ambos incident but during the hearing admitted
using the terms "asshole" and "son-of-a-bitch." Profanity
commonly has two meanings. Under the one meaning,
which essentially refers to blasphemous language, he did not
use profanity. Under the other usage, which essentially
refers to vulgar or abusive language, he did use profanity.
The investigator's report made no attempt to recount
Ambos' version of what was said. I am not prepared to make
a credibility finding based solely on semantics.
On the other hand, I find it incredible that, if Maday was
looking for an excuse to discharge Ambos, he did not
mention the Price incident"' to Ambos, particularly since it
was reported to, and investigated by, the taxicab authority.
Therefore, I do not credit Ambos in this regard. However, I
also find it incredible that Ambos would fabricate an entire
lengthy conversation which purportedly occurred at a time
when he knew there would be witnesses to corroborate
Maday's version. Considering the physical layout of Ma-
day's office and the empty office used as a coffeeroom, and
1o Contrary to Respondent's position, I do not find it incredible that in these
circumstances Maday chose to discharge Ambos for the October 24-28
conduct rather than for the Price incident. Considering the evidence as to the
Sinclair's testimony as to his wanderings between the two
offices, it would have been impossible for Ambos not to
realize that Frias and Sinclair were in a position to overhear
the conversation. Further, considering the undisputed testi-
mony that Ambos had easy access to Maday, I find it
improbable that, if Ambos was going to totally fabricate a
conversation, he would choose a setting where there were
two witnesses. It would be just as easy, and far more reliable,
to fabricate a story with no witnesses.
I credit Ambos that Maday communicated to him, during
the October 24 conversation, the alleged threat to his life by
two drivers. In this regard, I note that he immediately
related this portion of the conversation to Moyes. At this
point he had not had much time to fabricate a story, and the
story seems too offbeat and the probability of its usefulness
too remote to have been fabricated so quickly. As I have
indicated above, I do not consider Ambos a completely
reliable witness. I credit Moyes as to what was said in the
conversation. Moyes' account of the conversation includes
no reference to Maday having threatened to discharge
employees who joined the Union and to close Respondent,
nor is there any evidence that Ambos related this in
subsequent accounts of his conversation with Maday.
Since Ambos admits that he did not actually believe his
life was in danger, one can only infer that he took the
statement regarding the two drivers to be an expression of
hostility toward his union activities. Since the statements
regarding discharge were at least just as strong, and much
more direct, an expression of hostility, I find it improbable
that he would relate the one statement and not the other.
Accordingly, I do not credit Ambos' testimony that Maday
stated he would fire everyone that joined the Union or
signed an authorization card for the Union and that he
would close Respondent. Since I do not credit him in this
regard, I further find that I cannot rely on his testimony as
to other, more innocuous, portions of the conversation
regarding the Union, particularly in view of the testimony by
Frias and Sinclair. When the alleged illegal context of the
statement as to the threat by two drivers is removed, and in
the absence of any reliable testimony as to the context, I find
that the communication by Maday of the alleged threat by
the two drivers is not violative of Section 8(aX1) of the Act.
In view of these credibility findings, and since I conclude
that illegal motivation cannot be inferred alone from the
statement regarding the two drivers, I find that the evidence
is insufficient to establish by a preponderance of the evidence
that Ambos was discharged in violation of Section 8(aX)(1) of
the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced
employees in violation of Section 8(a)() of the Act by
warning and/or threatening employees that they will be
subjectivity of the determination of the discipline warranted by customer
complaints, it is entirely possible that a case for disparate treatment could
have been successfully made.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged if they engage in activities on behalf of the Union,
by coercively interrogating employees concerning their
union sympathies and desires, and by telling employees that
a fellow employee had been discharged because of his union
activities.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in the other unfair labor
practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act, I shall recommend that Respondent cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommended:
ORDER"
The Respondent, Checker, Inc., d/b/a Checker Cab
Company, Las Vegas, Nevada, its officers, agents, successors
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees as to their
union activities and sympathies.
(b) Warning and/or threatening employees that they will
be discharged if they engage in activities on behalf of the
Union.
(c) Telling employees that a fellow employee was dis-
charged because of his union activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its place of business in Las Vegas, Nevada,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional Director
for Region 31, after being duly signed by an authorized
representative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that the notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this notice.
The Act gives all employees these rights:
To act together for collective bargaining or other
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights. More specifically:
WE WILL NOT warn or threaten employees that they
will be discharged if they engage in activities on behalf
of Teamsters Local Union 631 or any other labor
organization.
WE WJL NOT coercively interrogate our employees
as to their union activities and sympathies.
WE WILL NOT tell our employees that a fellow
employee was discharged because of his union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
CHECKER, INC., D/B/A CHECKER CAB COMPANY
96