Checker Cab Co.,Download PDFNational Labor Relations Board - Board DecisionsJan 3, 1980247 N.L.R.B. 85 (N.L.R.B. 1980) Copy Citation 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. 85 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, 88 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 92 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 94 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. 95 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 Copy with citationCopy as parenthetical citation