Communtiy Motor Bus Co., Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1963

141 N.L.R.B. 703 (N.L.R.B. 1963)

COMMUNITY MOTOR BUS COMPANY, INC. 703
Sion continues to be operated as a separate and distinct operating divi-
sion. Under these circumstances we find the overall unit of bus
operators and terminal and maintenance employees in the northern
division appropriate.'
The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section 9 (b)
of the Act :
All bus operators, terminal employees consisting of ticket clerks,
baggagemen, porters and maids, and maintenance employees consist-
ing of mechanics and helpers employed in the northern division of
the Employer, but excluding office clerical employees, dispatchers,
terminal managers and all other managers, all other employees, profes-
sional employees, supervisors, watchmen, and guards as defined in the
Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, concurring :
I concur in the result.
1 Transcontinental Bus System , Inc., 119 NLRB 1840, 1842-1844.
Community Motor Bus Company , Inc. and Division 1177, Amal-
gamated Association of Street , Electric Railway and Motor
Coach Employees of America , AFL-CIO. Case No. 5-CA-92138.
March 25, 1963
DECISION AND ORDER
On November 30, 1962, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this
case and, except as noted herein, adopts the findings, conclusions, and
recommendations of the Trial Examiner.
141 NLRB No. 69.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that by advising employee Bell on Feb-
ruary 23, 1962, that if he had been offered a job by the Union, he had
"better take it," the Respondent conveyed to Bell the fact that he
was no longer employed by Respondent; and that by discharging Bell
because he had engaged in union activity, the Respondent violated
Section 8(a) (3) of the Act. In this connection, the Trial Examiner
rejected the Respondent's contention that Bell had "quit" his employ-
ment. The Trial Examiner further found that the Respondent's re-
fusal to reinstate Bell on February 28, upon his request, because of
Bell's union activity, also constituted a violation of Section 8(a) (3)
of the Act. Although it is clear that Respondent urged Bell to quit
on February 23, we are not wholly satisfied that the record establishes
that Respondent discharged Bell on February 23, or forced him to
quit. Accordingly, we shall not predicate a finding that the Respond-
ent violated Section 8(a) (3) upon the alleged discharge of Bell on
that date. However, we find, in agreement with the Trial Examiner,
and for reasons stated by him, that the Respondent refused to rein-
state Bell to his former position on February 28, that this refusal
was explicitly because of Bell's union activities, and that by such con-
duct, the Respondent violated Section 8 (a) (3) of the Act.'
REMEDY
Having found that the Respondent unlawfully discharged Bell on
February 23, the Trial Examiner recommended that backpay com-
mence on the date of discharge and continue until such time as the
Respondent shall offer to Bell immediate and full reinstatement.
However, as we have not found that Bell was discharged on Febru-
ary 23, but rather that Bell was refused reinstatement on Febru-
ary 28 for discriminatory reasons, we shall order that baeknav
commence on February 28,1962.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications : 2
(1) Paragraph 2(a) of the Recommended Order is amended by
adding at the end the words "as modified by the Section entitled
`The Remedy' in this Decision and Order."
(2) The notice is hereby amended by inserting the following as
a last paragraph immediately below the signature line:
1 Subsequent to the close of the hearing , the Respondent filed a motion with the Board
to reopen the hearing to receive additional evidence in support of Respondent ' s contention
that Bell quit his employment on February 23 The General Counsel and the Charging
Party oppose the motion . This motion is hereby denied as, apart from any other con-
siderations , we have not adopted the Trial Examiner 's finding that the Respondent dis-
charged Bell on February 23 for discriminatory reasons
2 For the reasons stated in the dissenting opinion in Isis Pivmbina f Treating Co., 133
NLRB 716, Member Leedom would not award interest on backpay in this proceeding
COMMUNITY MOTOR BUS COMPANY, INC. 705
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed
Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Portsmouth,
Virginia, on August 28 and 29, 1962, on the complaint of the General Counsel, as
amended, and the answer of Community Motor Bus Company, Inc., hereinafter
referred to as the Respondent.' The issues litigated were whether the Respondent
engaged in unfair labor practices and thereby violated Section 8(a)(3) and (1)
of the Labor Management Relations Act, 1947, as amended (61 Stat. 136, 73 Stat.
519, 29 U.S.C. Sec. 151 et seq.), herein called the Act The parties waived oral
argument and briefs filed by the General Counsel and Respondent have been care-
fully considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Virginia corporation, having its principal office and place of
business at Portsmouth, Virginia, where it is engaged in the operation of a transit
system in and about the city of Portsmouth.
The complaint alleges that Respondent derives an annual gross revenue in excess
of $250,000, purchases goods and materials of substantial value from points located
outside the Commonwealth of Virginia, that it is engaged in commerce within the
meaning of Section 2(6) of the Act, and that the acts of the Respondent, infra,
constitute unfair labor practices affecting commerce within the meaning of Section
2(6) and (7) of the Act. Respondent admits that its annual gross revenue is in
excess of $250,000 but denies that it has purchased goods and materials of sub-
stantial value from points located outside the Commonwealth of Virginia, denies that
it is engaged in commerce within the meaning of Section 2(6) of the Act, and denies
that it engaged in conduct constituting unfair labor practices affecting commerce
within the purview of Section 2(6) and (7) of the Act.
It is undisputed that in the period from September 15, 1961, when Respondent
was incorporated, through June 30, 1962, Respondent received revenue, inferentially
exclusively from passenger fares, in excess of $628,000. On May 26, 1959, the
Board established its current jurisdictional standards to be applied to enterprises
operating transit systems. The Board held that it would effectuate the policies of
the Act to assert jurisdiction over all transit systems which do a gross volume of
business of at least $250,000 per annum. Charleston Transit Company, 123 NLRB
1296
Respondent acknowledged that it purchased locally $128,000 worth of gasoline
and oil from the American Oil Company in the first 91/2 months of its operation.
In the same period, Respondent purchased truck parts directly from General Motors
Truck and Coach Division in Elizabeth City, New Jersey, in an amount exceeding
$4,000; fareboxes purchased directly from the Johnson Fare Box Company, out of
the State of Virginia, amounted to $4,800. Respondent also purchased $11,000 in
parts, equipment, and paint from a local distributor, more than half of which
originated from without the State of Virginia. Accordingly, I find unnecessary the
consideration of the purchase of other items which originated from points outside
the State of Virginia.
The Supreme Court in the Fainblatt case 2 rejected a contention that the volume
of commerce, though substantial, was relatively small. The Court asserted that it
'The charges herein were filed on April 12, 1962. The complaint was issued on
July 5, 1962.
9 N L R B v. Fainblatt et al, -06 U S 601. See also Gass v. Utah Labor Relations
Board, 353 U.S. 1, 3.
706 DECISION S OF NATIONAL LABOR RELATIONS BOARD
could perceive no basis for inferring any intention of Congress to make the opera-
tion of the Act depend on any particular volume of commerce affected more than
that to which the courts would apply the maxim de minimis.
The Board has held that the purchase of materials valued at approximately $2,000
was sufficient to support a finding that Respondent's operations "affect commerce."
The Board rejected a contention that such purchases should be characterized de
minimis. Aurora City Lines, Inc., 130 NLRB 1137 (enfd. 299 F. 2d 229 (C.A. 7) ).
Accordingly, I find that Respondent's operations do affect commerce within the
meaning of Section 2(7) of the Act, and otherwise meet the Board's jurisdictional
standards.
II. THE LABOR ORGANIZATION INVOLVED
Division 1177, Amalgamated Association of Street , Electric Railway and Motor
Coach Employees of America , AFL-CIO, herein called the Union , is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
1. The issues
The principal issues raised by the pleadings and litigated at the hearing are whether
the Respondent: (1) interfered with, restrained, and coerced its employees by (a)
on and after November 12, 1961, interrogating applicants for employment con-
cerning their union membership, activities, and desires, or (b) on or about Febru-
ary 9, 1962, keeping under surveillance activities of the Union, or (c) on or about
February 9, 1962, keeping under surveillance the meeting place of the Union, or
(d) on or about February 9, 1962, interrogating and otherwise interfering with
employees with respect to their union activities, or (e) on or about February 10,
1962, and on various dates thereafter including February 22, 1962 and April 12,
1962, interrogating employees with respect to union activities and threatening said
employees with discharge if they engaged in union activities; or (2) engaged in un-
fair labor practices by discharging Roland J. Bell, on or about February 23, 1962,
and thereafter refusing to reinstate him to his former or substantially equivalent
position, because of his membership in, assistance to, or activity on behalf of the
Union, or because he engaged in protected concerted activities. Respondent spe-
cifically denied the allegations of the complaint.
2. Background
Prior to September 1961, for an unspecified period, and since that time, B. L.
Barnes has engaged in business as an individual under the name of Community Motor
Bus Company and Community Motor Bus Charter Service, operating six buses
within the State of Virginia, some of which were engaged in charter service.
Respondent was incorporated about September 15, 1961, for the sole purpose
of operating the city franchise for the city of Portsmouth. B. L. Barnes owns a
controlling amount of stock.
In the spring of 1961, in anticipation of his receiving the franchise, Barnes pur-
chased 60 buses at a cost of $495 each from the Detroit Railway Company in Detroit,
Michigan. Respondent operates 32 morning school runs, 36 afternoon school runs
and 28 city bus routes. One of these city bus routes goes to the naval shipyard
and another to the naval hospital.
In anticipation of the needs of Respondent, when it commenced to operate under
the city franchise, approximately 60 drivers were hired on unspecified dates in
August and September 1961; between 60 and 70 are presently employed. Each of
these drivers was given a training period, during which their duties and company
policy were explained to them 3
3. Supervisory personnel
Archie B. Stewart is the general manager of Respondent. He is in charge of per-
sonnel , does the laying out of bus routes, and makes up the schedules designating
3 Stewart (infra.) asserted Respondent bad a seniority board for regular main-line
drivers and an extra board for other drivers. Stewart first asserted there were 35 on
the seniority board, then later stated the number was 54, with 10 or 12 on the extra board
COMMUNITY MOTOR BUS COMPANY, INC. 707
regular or extra drivers on particular routes. It is undisputed that Stewart is a
supervisor within the meaning of Section 2(11) of the Act.
James A. Kay 4 is "supervisor on the streets." Respondent denies that Kay is a
supervisor within the meaning of Section 2(11) of the Act. Kay is the only per-
son employed by Respondent as a "supervisor on the street"; however, at times
Stewart engages in the same activity, and when Kay is absent Green fills in for
him .5 Kay is paid on a salary basis without regard to the number of hours he
works and is not paid overtime. Kay works whatever hours Stewart designates,
sometimes daytime hours, sometimes nighttime hours, and sometimes a split shift.
Kay described his duties as being to see that the buses run on schedule, pull in
to the curb, and "stuff like that." It is undisputed that Kay does not have authority
to hire or fire. Kay denied that he ever recommended hiring or firing. The
following testimony of Kay is enlightening:
Q. If you see a man out on a route misbehaving; what do you do?
A. I try to correct him for misbehaving. If I can't do it 1 call on Mr. Stewart.
Q. How do you mean you try to correct him?
A. I try to call him down on whatever he is doing wrong or something like
that. If there is anything wrong I go to him and explain to him and tell him
it should be done the other way and not to do it that way.
Q. Call him down if he does something that is clearly wrong?
A. Yes, sir.
Q. Do you do most of the on-the-street spotting?
A. Yes, sir.
Q. Does Mr. Stewart rely on you primarily to report violations?
A. Not all of them. He gets on the street sometimes himself and checks
them.
Q. If a man was disrespectful to you, would you report it to Stewart?
A. Yes, sir.
Q. If a man refused to do what you told him, would you report it to Mr.
Stewart?
A. Yes, sir.
Kay acknowledged that if a bus was parked in a place where it should not be
parked he would advise the driver to move the bus to the place where he was
supposed to park. If Kay saw a driver leave the bus and leave the doors open he
would correct him on that. If Kay saw a driver backing a bus, or doing anything
else that he considered to be a violation of company policy, he would so advise
the driver and report the incident to Stewart. Kay acknowledged drivers had been
reprimanded by Stewart as the result of his reports. Kay had authority to reroute
buses when street conditions made it necessary. He would advise Stewart after
such an event.
Stewart acknowledged that Kay investigated incidents involving complaints from
passengers, involving drivers, and reported his findings to Stewart. Stewart de-
scribed Kay's duties as "to check schedules, check out the busdrivers generally, as
my assistant if necessary ... checking the buses to see whether they are operated
safely, checking to see whether or not the busdriver pulls in and out of the curb,
that they come in safely to it, and the general courses of the bus in general." Stewart
acknowledged Kay had power to reprimand a driver. Kay has the power to direct
a driver, in his activities, when the driver is out on his route.
Respondent operated 28 buses on a regular main-line schedule, involving 54 drivers
encompassing (1) morning and (2) afternoon and evening schedules. There is
no other street supervisor employed. Accordingly, I find that Kay's duties as street
supervisor included the use of discretion and the duty to responsibly direct the bus
operators in their work, and he is, therefore, a supervisor within the meaning of
Section 2(11) of the Act .6
The total number employed, 60 to 70, and the total number of main-line runs, 54, includ-
ing both morning and afternoon shifts, cause me to find the latter figure more accurate.
Incorrectly identified in the complaint as A. 1 Kay.
B The duties of Green, who works in Responden't's office, and apparently is a dispatcher,
are unimportant.
e New York City Omnibus Corporation , 104 NLRB 579, 584
708-006-64-vol. 141-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Interference , restraint , and coercion
a. Employment applications
Respondent 's "application for employment " form is a four -sided cardboard file
folder. The first three sides contain questions which the applicant is supposed to
answer, and the back side contains spaces for notations made during an interview.
At the bottom of the third page the following appears :
Organizations
Give name of any
labor organization of
which you are a member ----------------------------------------------
Local No---------------- City----------------- State -----------------
To what fraternal organizations
do you belong ?------------------------------------------------------
General Counsel contends that the use of this form on and after October 13,
1961 , the 6-month period preceding the filing of the charge herein, without some
justifying reason , is a violation of Section 8(a) (1) of the Act.
Stewart acknowledged that the "application for employment " form has been
regularly utilized for all applicants since September 1961. Stewart denied that all
applicants are required to fill in the blanks under the question relative to "organiza-
tion " Stewart denied that he had any purpose in incorporating the questions rela-
tive to "organization " in the application , asserting that the form indicates that it is
"ATA Form P- 100." 7 Stewart related that an insurance company representative
asked Respondent to use the form and provided him with 50 copies. He asserted
the reason for the request is that the form, in other portions , provides a background
on traffic experience and driving experience , education , and related matters Stewart
receives the applications and discusses them with the applicant . Stewart acknowl-
edged that applicants were required to give the requisite information relative to
drivers ' licenses, traffic convictions, past employment , and education . He asserted
they were not required to answer specific questions concerning organizations.
Stewart estimated that approximately 70 percent of the applicants filled in this por-
tion of the application . Stewart's assertion that when the specific questions con-
cerning organization were not filled in the applicant was not required to fill in that
portion is undisputed .8
b. Interrogation and interference on February 9
It is alleged that on or about February 9, Stewart interrogated and otherwise
interfered with employees with respect to their union activities
Wallace C Barry is secretary -treasurer of Local 1177 , and a busdriver in the
city of Norfolk, Virginia . It was Barry who undertook an organizational campaign
of Respondent 's employees in the latter part of January 1962 Barry contacted
some of the drivers and distributed union application forms. Barry identified James
L. Walker 9 as one of the employees who was active in the campaign . It is undis-
4 The forms were furnished by American Trucking Association
9 Carl Jewell is the only witness who testified that he was interrogated by Stewart rela-
tive to his union activities at the time he was interviewed for employment in August
1961 . General Counsel introduced evidence relative to the pre -Section 10(b) period for
the purpose of establishing an attitude of Respondent reflecting antiunion animus
Jewell , named in the charge but not in the complaint as being discriminatorily dis-
charged , was discharged on February 16, 1962
Jewell asserted that Stewart asked him in the interview , if lie belonged toga union, and
then advised him "The Community Motor Bus Company didn't have a union and if I had
any union activities in my mind , the Community Motor Bus Company didn ' t have a place
for me there." Jewell asserted this was the only occasion when Stewart discussed the
Union with him. Jewell then asserted , "He (Stewart ) did not ask me nothing about a
union in 1961 , of August ; no, sir " Thereafter Jewell reasserted the facts related in his
first testimony . Absent any other evidence of a similar interrogation by Stewart , in view
of the obvious confusion and self-contradiction of Jewell , whose demeanor did not impress
me, I do not credit Jewell
9Walker , named in the charge but not in the complaint as being discriminatorily dis-
charged , was discharged on February 16, 1962
COMMUNITY MOTOR BUS COMPANY, INC. 709
puted that the downtown terminal of Respondent 's main-line runs is at or adjacent
to the intersection of High and Crawford Streets. It also appears undisputed that
when buses arrive at that point the drivers have a layover before starting on their
next run.
Walker credibly testified that on February 9, 1962, he was driving the Portsmouth-
to-Norfolk run. Sometime between 8 and 8:30 p.m. Walker had arrived at the
terminal at the corner of Crawford and High Streets. Walker and Barry had a
conversation on the street during which Barry inquired if Walker had obtained any
more union application forms and Walker responded that he had a "couple." As
Walker returned to his bus Stewart stepped on the bus, pointed to Barry, and said,
"Who is that damn dictator union man? We can't have this damn union. We
aren't going to have this damn union." Walker related that Stewart was pointing
to Barry. Stewart then advised Walker to drive off on his run. It appears un-
disputed that Stewart ordered Walker to commence his run at once, when his
normal layover time had not expired. °
Barry corroborated Walker's testimony that he was present at the time of the
incident related, for the purpose of having the drivers bring the union application
forms to him and for the further purpose of explaining the organization to those.who
had questions. Barry admitted he did not know Stewart on February 9. Barry
was advised by Walker of Walker's conversation with Stewart immediately upon
Walker's return to the terminal at the end of the following run. Another driver
had advised Barry that it was Stewart who was having a conversation with Walker.
Stewart acknowledged that he discussed union activities with "one" of the em-
ployees He then related that he discussed with different drivers (unidentified) in
the latter part of January and early February the fact that some men were passing
out pamphlets at the terminal at High and Crawford Streets. Stewart admitted that
he was told that the individuals passing out the pamphlets were labor organizers, but
pleaded ignorance of any knowledge that this was an indication that they were at-
tempting to organize Respondent's employees, or any knowledge of the purpose for
which the pamphlets were being passed out. He was unable to recall if he had
seen one of the pamphlets or not. Stewart asserted this was the only occasion
that he heard anything pertaining to the Union Stewart asserted that he advised
these drivers that he was not concerned with what they were doing provided they
were not bothered while they were on the bus, which might cause a delay in their
schedules Stewart denied making the statement to Walker which Walker attributed
to him, on February 9. Stewart acknowledged that on several occasions he had sent
Walker "on his way" because Walker would lay over beyond his scheduled time
To the extent Stewart's testimony is at variance with that of Walker and Barry, I
credit the latter two.
c. Surveillance of union meetings
It is undisputed that the first meeting of Respondent's employees, called by the
Union, was held in one of the upstairs rooms of the Governor Dinwiddie Hotel,
commencing approximately 10 p in., on February 9, 1962. It is alleged that Stewart
and Kay kept this meeting under surveillance.
The Governor Dinwiddie Hotel is situated on the corner of Dinwiddie and High
Streets in the city of Portsmouth This location is described as being two city
blocks removed from the corner of High and Crawford, the terminal for Respondent's
bus runs. High Street is the main street of Portsmouth The entrance to the
Governor Dinwiddie Hotel is on the Dinwiddie Street side of the building, at least
50 feet from the intersection of High Street. Substantially directly across Dinwiddie
Street, from the hotel entrance, is a Portsmouth taxistand and, adjacent thereto,
a White Tower Restaurant
James L. Walker, Roland J. Bell, and Johnny 0. Clark, all employees of Re-
spondent on February 9, 1962, testified that they arrived together at the Dinwiddie
Hotel to attend the meeting at approximately 10 p.m. They left together sometime
between 12 30 and 1 am. When Walker, Clark, and Bell approached the front
entrance to the hotel, they saw Kay standing in front of the taxistand and saw Stewart
at the White Tower Restaurant 10 The three busdrivers then retreated into the
hotel and prevailed upon an unidentified hotel employee, who was leaving work,
to take them out the back door and drive them around to the location of Clark's
car, which was parked near the corner of High and Dinwiddie Streets. Meanwhile,
10 Walker placed Stewart as being In front of the White Tower Restaurant while Clack
and Bell placed him as being Inside I consider this discrepancy uniniportant In resolving
the Issue of the existence or nonexistence of surveillance.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay had gotten into his car which was also parked on Dinwiddie Street . Subse-
quently, they drove up alongside Kay's car and Clark inquired if Kay was not work-
ing late and Kay responded in the affirmative.
On Monday , February 12, Walker went to the Governor Dinwiddie Hotel for a
union meeting. He was accompanied by his wife , Barbara Walker. Barbara
Walker credibly testified that she arrived at the hotel, with her husband, at ap-
proximately 10 p.m. She remained outside in the car and waited until approxi-
mately midnight . The car was parked on Dinwiddie Street , a little beyond the en-
trance to the hotel. She waited in the car until a quarter of 11 , possibly a little
later , then crossed the street to the White Tower Restaurant to get a cup of coffee.
She saw Stewart in the White Tower Restaurant at that time. She then returned
to the car and remained there until sometime between 11:30 p .m. and midnight, at
which time she went into the hotel to look for her husband . As she entered the
hotel she looked across the street and saw Stewart still in the White Tower Restaurant.
Walker corroborated his wife 's testimony relative to his wife accompanying him to
the hotel and waiting for him while he was at the meeting.
Stewart denied going to the White Tower Restaurant at any time in February
1962 . He asserted that he had made one visit to the White Tower since its opening
and that was around 1959; he then recalled a recent visit , date unspecified , around
10 o'clock one morning. Stewart acknowledged knowing Mrs. Walker in Febru-
ary 1962, but denied seeing Mrs . Walker at or near the Governor Dinwiddie Hotel
at any time . Stewart denied ever being in the vicinity of the hotel for the purpose
of observing any activities that might be occurring there. Stewart in response to a
question of whether he had learned or known of any union meetings being held in
the hotel responded indirectly , "I never discussed any meetings at all with them (the
drivers )." He then denied knowing of any union meetings being held.
Stewart recited that as part of his duties he goes downtown to check on the opera-
tion of the schedules "rather often ." He usually leaves the garage after the school
runs are out at 8:15 a.m. and returns between 9 and 9:30 am., he goes out again
during the afternoon after 2:30 and is usually back around 4:30. He sometimes
leaves his home around 7 p in. and stays out I or 2 hours. On some occasions he
has gone out in the late afternoon and did not return until all the buses are in
the garage.ii On some of these occasions Stewart made it a point for the drivers
to see him ; however, on most occasions he did not make it a point for the drivers
to see him. Stewart asserted that the corner of High and Dinwiddie Streets, near
the Colony Theater, is a central location . Actually, the Colony Theater is located
on High Street diagonally across the intersection on the far side of High Street
from the Governor Dinwiddie Hotel and somewhat removed from the actual inter-
section of the two streets. Stewart acknowledged that he might have been at the
corner of High and Dinwiddie Streets in the month of February and might have
seen Kay on that corner . Stewart then asserted that Kay was on the corner of
Dinwiddie and High Streets, as a vantage point, two or three times a week.
Kay denied knowledge of any union meeting being held in Portsmouth in Febru-
ary, and denied engaging in surveillance of any meetings . He described the Colony
Theater as one of the places he used as a checkpoint and acknowledged that he might
have walked up to the White Tower to get a cup of coffee . Kay acknowledged
seeing drivers on the streets late at night but was uncertain as to particular occur-
rences in February . Kay asserted "they always come by ( and say ), `what are you
doing out so late' " or words to that effect . Kay was uncertain whether he ever
saw Clark or Bell under these circumstances.
Walker asserted that it was unusual to see Stewart or Kay on the street checking
buses after 8 or 9 p . m. Walker 's testimony that the last bus finished at I am
stands undisputed . Also undisputed is Walker's testimony that no buses are routed
down Dinwiddie Street . To the extent that the testimony of Stewart and Kay is at
variance with the testimony set forth of the witnesses for General Counsel , I credit
the latter.12
"It would appear reasonable to infer from all the evidence in the record that the last
runs terminate at approximately 1 am.
121 find no significance in the recitation of Wayne Lassiter that about 8:30 pin on
February 9, 1962, he saw Stewart and Kay at the corner of High and Dinwiddie Streets
Lassiter related it was not unusual for him to see Stewart there at night checking buses
and that he had never seen Kay standing on that corner . The testimony of Lassiter that
he was "supposed to" attend the union meeting, and did not , is too vague and too far
removed from the time of the meeting , at 10 p .m, to permit a reasonable inference that
this incident was the reason for his failure to attend.
COMMUNITY MOTOR BUS COMPANY, INC. 711
d. Interrogations and threats between February 10 and April 12, 1962
The complaint alleges that Stewart interrogated employees with respect to their
union activities and threatened them with discharge if they engaged in union activities
on various dates including February 10, February 22, and April 12, 1962.
There is no evidence in the record that Stewart interrogated employees with re-
spect to union activities or threatened any employees with discharge on February 10,
1962. The incidents related to February 22 or 23, 1962, are considered infra in
connection with the discharge of Bell. The evidence concerning two occurrences
in the period of time described are next considered.
Wayne Lassiter credibly testified that on an unspecified date, possibly 2 months
after the February 9, 1962, meeting, and while he was still employed by Respond-
ent,13 Stewart approached him at the water fountain, inferentially in the company
headquarters. Stewart advised Lassiter that he (Stewart) had heard that Lassiter
had signed a union application. Stewart inquired of Lassiter "do I want the union
or the Community Motor Bus Company?" Lassiter responded that he wanted the
Community Motor Bus Company. Lassiter then quoted Stewart as inquiring
whether he would rather work for the Company or have the Union come in. Las-
siter responded he would rather work for the Company. Stewart then advised,
"Well let's have no more talk about the union." Stewart specifically denied discuss-
ing any kind of union activity or anything else with Lassiter. I credit Lassiter.
Johnny O. Clark credibly testified that he had a conversation with Stewart on
April 12, 1962. Clark had missed a couple of days' work and had failed to call in.
He went to Stewart to explain the domestic problems which caused his absence.
During the conversation Clark inquired if he still had a job. Clark quoted Stewart
as responding, "Well, Clark, you were mixed up in this union business about 3
or 4 weeks ago and you were pretty active in it." Stewart inquired if his state-
ment was correct and Clark acknowledged attending two or three meetings to see
what the unionman had to say. Clark asserted he did not see anything wrong with
that Clark related Stewart then asserted "words to this effect, I've gotten rid of all
of them but you that were involved with the Union." Clark asserted that at this
time Walker, Jewell, and Bell were no longer employed by Respondent. Clark
was then advised by Stewart to report the following morning, which he did. Subse-
quently Clark voluntarily left Respondent's employment. Stewart denied ever hav-
ing the recited conversation with Clark. I credit Clark.
e. Other evidence of Respondent's union animus
General Counsel introduced evidence, in the form of testimony by Lassiter and
Walker, of alleged antiunion statements made by Stewart in August and Septem-
ber 1961. General Counsel contends that the union animus of the Respondent
is demonstrable from these statements. Stewart denied the statements. I find it
unnecessary, in view of my findings herein relative to events within the 6-month
period preceding the filing of the charge, to pass upon this evidence which in any
event would serve only as background.
f. Concluding findings
Employment Applications
General Counsel contends that the inclusion in an application form of questions
concerning union affiliation, without some justifying reason, is an unfair labor prac-
tice within the meaning of Section 8(a) (1).
While the bulk of these application forms were used in the period preceding the
6-month period, the time to which a finding of an unfair labor practice is restricted
under Section 10(b) of the Act, it is undisputed that the forms were still in use at
the time of the hearing herein, and all applicants for employment on and after
October 13, 1961, were given the form containing the objectionable question to fill
in. The use of the form in this latter period is the sole question considered.
Absent evidence of a specific purpose, if any, for which the information was
sought, where instances of interrogation and an effort to eliminate adherence to a
particular union was found, the Board held the use of such a form providing for
the disclosure of such information was improper and violative of Section 8(a)(1).
13 Lassiter was uncertain of the time of his voluntary separation and admittedly hazy
on dates. He thought the separation was in March . Stewart, equally uncertain , placed
the time of separation as April or May 1962
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Carpeting Division, National Automotive Fibres, Inc., 116 NLRB 1446,
1461.
Where an application form substantially identical to that used in the instant case
was coupled with interrogation of employees as to union membership, the Board has
held that interrogation of employees is neither lawful nor unlawful per se. The test
of illegality is whether, under all the circumstances, the interrogation reasonably
tends to restrain or interfere with the employees in the exercise of the rights guar-
anteed by the Act.14 Where there is no discernible valid ground for the question
and in the absence of a disclosed and legitimate reason therefor, interrogation of
applicants for employment as to their union membership tends to suggest to them
that membership or nonmembership in a labor organization will affect their eligibility
for employment, and is thus coercive. Transamerican Freight Lines, Inc., 122 NLRB
1033, 1042. However, this case is distinguishable in that in the Transamerican case
the applicants were required to answer the objectionable question.
The Board has found interrogations as to union membership on an employment
application form have a coercive effect and violate Section 8(a)(1) of the Act.
when such forms appear in a context of other unfair labor practices, including inter-
rogations and threats. Schott Metal Products Company, 128 NLRB 415, 430
Accordingly, in view of the other unfair labor practices found herein I am con-
strained to find that the continued use of the objectionable question relative to union
membership, without purpose or adequate explanation, has a coercive effect and
constitutes conduct in derogation of the provisions of Section 8 (a)( I) of the Act.
Surveillance of Union Meetings
General Counsel correctly urges that Respondent attempts to counter evidence
of the presence of Stewart and Kay at the situs of the union meeting on February 9,
and Stewart on February 12, by vacillating between a denial of the facts and a
justification based upon a standing practice of the Company to place supervisors in
that locality to check on bus schedules.
Stewart flatly denied being in the White Tower Restaurant in February 1962. The
denials of Kay were somewhat more qualified. The issue thus becomes one of
credibility. In this connection, it is noted that Clark appeared as a disinterested
witness in terms of having left the Company voluntarily and having no direct interest
in the outcome of the litigation. While Walker was discharged by Respondent on
February 16, 1962, neither he nor his wife have any direct interest in the outcome
of the litigation. These witnesses, and Bell, place Stewart and Kay on Dinwiddie
Street during union meetings in the hotel Having carefully analyzed all of the
evidence. and being mindful of the demeanor of the witnesses who testified to these
particular events, I find that Stewart and Kay were on Dinwiddie Street at a time
between 12:30 and 1 a.m., on February 9, and that Stewart was in the White
Tower Restaurant at the times related by Mrs. Walker on February 12. Since no
buses run on Dinwiddie Street, and since it appears that no buses could be ob-
served, in operation, from that point, their asserted presence in the area for the
purpose of checking buses is without support Since the last buses apparently
report to the company garage at approximately 1 a.m., checking on bus schedules
at or after 12.30 a in appears improbable and implausible. Stewart's denial of any
knowledge of union organization , union activity, or union meetings I find implausible
by reason of his own inconsistent testimony in this regard, as well as the other
evidence in the record. Accordingly, I find the presence of Stewart and Kay
on Dinwiddie Street, at the times related, created the impression of surveillance and
it is reasonable to infer was for the purpose of surveillance
The unexplained presence of the employer's supervisors parked in an automobile
near a hotel entrance where a union meeting was being conducted has been held
to create an impression of surveillance, and to be violative of Section 8(a)(1) of
the Act. Beiser Aviation Corporation, 135 NLRB 399.
There can be no question that such open surveillance of a union meeting would
have the natural effect or tendency of interfering with, restraining, and coercing
employees in the exercise of rights guaranteed by the Act, and therefore the inten-
tion or motivation of Respondent in eneaging in such conduct would be immaterial
in view of such effect.15 I find accordingly.
is See Rhine Flash Empress , Inc., 109 NLRB 591
^s Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N LIZ R , 347
U S 17 See also, National Shirt Shops of Delaware , Inc, 123 NLRB 1213; Jamel, Inc,
129 NLRB 1191.
COMMUNITY MOTOR BUS COMPANY, INC. 713
Interrogation and Threats
I have found supra that sometime after February 9, 1962, Stewart did inquire
of Lassiter whether Lassiter had signed a union application, inquired whether Lassiter
would rather work for the Company or have the Union, and thereafter advised
Lassiter, "Let's have no more talk about the union." No justification for the inquiry,
which in fact was denied by Respondent, appears. I find under the circumstances
that Stewart's statement that he did not want to have any more talk about the
Union reasonably implied consequences adverse to Lassiter should Stewart learn
of Lassiter's taking action at variance with Stewart's suggestion. Thus, the statement
was a threat of economic reprisal, if disregarded.
I have found that Stewart interrogated Clark, on April 12, relative to Clark's
activity on behalf of the Union. Respondent did not seek to justify its inquiry,
and in fact denied the occurrence. I have found supra that during this interview
Stewart related to Clark something to the effect of Stewart's having "gotten rid"
of the other union advocates. The actual assertion of Stewart may well have been
an implied threat of economic retaliation if Clark renewed his union activity. It is,
however, at most cumulative and I find disposition unnecessary.
Numerous Board decisions have held that the interrogation of employees individ-
ually about union activities do not fall within the Blue Flash 16 doctrine and are
violative of Section 8(a)(1), where inquiries were not shown to be for the purpose
of determining the extent of the union's representation, or for any legitimate purpose,
and were not in all instances accompanied by assurances that there would be no
reprisals. Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399.
It is well established that threats of economic retaliation to discourage activities
of employees, protected under Section 7, constitute an unfair labor practice within
the purview of Section 8(a)(1) of the Act. Accordingly, I find Respondent's inter-
rogation of Lassiter and Clark and Respondent's threat uttered to Lassiter were
unfair labor practices proscribed by Section 8(a)(1) of the Act.
The incident involving Walker and Stewart on the evening of February 9, 1962,
is the only evidence related to the specifications of paragraph VI(b) and (d) of
the complaint. The statement and conduct of Stewart was coercive in character.
Stewart's action in dispatching Walker before the end of his layover period resulted
from Walker having engaged in protected activities. I find this conduct constituted
interference, restraint, and coercion and was in derogation of Section 8(a)(1) of
the Act.17 However, how a supervisor can engage in surveillance of union activities
by observing events which occur within his sight at a normal work station is un-
explained. I shall recommend dismissal of the allegations of subparagraph (b).
5. The discharge of Roland J. Bell
The complaint alleges that Bell was discharged on February 23, 1962, and that
the discharge was discriminatorily motivated. Respondent denies that Bell was
discharged and contends that he quit by failing to report on February 28.
Bell was initially employed in September 1961, served a training period, and
went on the payroll about October 11. Bell asserted that he was the first of the
Respondent's employees to submit the names of drivers to Union Organizer Barry.
Bell signed an application form on February 9 or 10, and attended all of the union
meetings except one. Barry corroborated Bell's testimony that Bell was very active
on behalf of the Union, particularly in the matter of obtaining union application
forms and bringing drivers to the meetings. The evidence is that the first meeting
was on Friday, February 9, 1962, and succeeding meetings were held each day or
evening to and including Tuesday, February 13. I have found supra, section 3, c,
that Bell accompanied Walker and Clark to the first meeting, and was with the
other two when they left that meeting and observed Stewart and Kay standing across
the street, opposite from the entrance to the hotel.
Bell credibly testified that he had an interview with Stewart concerning his work
progress. While Bell was unable to place the time of the interview, it would appear
reasonable to infer that these progress interviews probably occurred in January 1962.
Stewart posted a notice that he wanted to take about 15 minutes of every driver's
time and talk to each one separately. Bell related that Stewart, during such an
interview, advised him that he had over 11,000 miles of safe driving and that as
long as he kept on going like that, he had a job with the Company. This testi-
mony stands undisputed.
1 See footnote 14
17 See Olin Industries, Inc. v. N L R B., 191 F. 2d 613, 617.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 22, 1962, Bell drove a school run, leaving about 7.50 am. and
returning approximately 9 a.m. His afternoon run at that time commenced at
1 p.m. and continued until 10 p.m. When he returned from the school run he
was called into the office by Stewart. Bell credibly testified that Stewart told him
that Stewart had reports that Bell was trying to organize the Union and that a
unionman had been riding on his bus. Bell denied knowledge. Stewart then as-
sterted, "Well I know what goes on around here and what don't go on around here.
If you have been engaged in any union activities you better watch yourself." Bell
advised Stewart that he had not been "messing" with the Union.
The following day, Friday, February 23, was the last day Bell worked. Bell
asserted that it was customary for the drivers to draw their paychecks when they
first went in in the morning. On this particular Friday the checks were given to
them after they returned from their school runs. Bell found his check to be $5.10
short and related that for 2 or 3 previous weeks his checks had been short. As
a result of these alleged shortages drivers who got off work at the same time would
check each other's money to make certain there was no shortage when they turned
the money in. The money together with the manifest was put into a bag and then
placed in an iron box. Bell mentioned the shortage to Stewart and advised Stewart
that he should not have been short. Bell described Stewart as being "in one of his
peeved moods" and advising Bell that he (Stewart) did not have time to mess
with him, to leave his check stub and he would check it when he had time Bell
then asserted that he (Bell) became a little angry and said something in regard to
the shortage, whereupon Stewart inquired, "Bell, haven't you been offered a job
someplace else?" Bell responded, "Mr. Stewart, I don't know anything about a
job, or offered a job anyplace." Bell quoted Stewart as saying, "Well these damn
union men you have been messing with, haven't they offered you a job?" Bell
responded, "No sir." Stewart then said, "Well if they offered you one you'd better
take it." Stewart then turned around and walked out. Bell asserted that he under-
stood this to mean that he no longer had a job. His belief was based in part upon
the fact that Jewell, Walker, and Wallace, all of whom had been engaged in the
union activity, had been separated in the prior week.ia
Stewart denied having any conversation with Bell relative to the Union at any
time. Stewart asserted that Bell quit his job, that he was not fired. Stewart
acknowledged that Respondent's records reflected that Bell worked on the morning
of February 23. Stewart was unable to recall any conversation with Bell that
morning concerning Bell's pay, but stated, "He could have said something to me."
Bell called Stewart at his home on Monday evening, February 26, to request an
opportunity to talk to Stewart about working and was advised to appear at the
office. On Wednesday, February 28, Bell and Stewart had a conversation about
11 a m. Their testimony of its content is in sharp conflict. Bell credibly testified
that he asked Stewart if he could go back to work. Stewart responded, "Bell, you've
been mixed up with this union . We are not going to have a union out here if
there is anything I can do about it We had a union here one time We had
to lay our men off like hell. We are not just going to have it. I'm not going to
have it." Stewart also said, "I can 't understand why you want to pay those s.o b.'s
eight dollars a month to dictate to you. They tell you when you can work and
when you can't work." Bell asserted he advised Stewart that he had not been
engaged in union activity, because he wanted to go back to work. Bell asserted
that he left mad and Stewart was mad when he left.
Stewart asserted there was no mention of a union in this meeting. Rather, he
discussed with Bell the latter's record on "missouts." Stewart's version was that
he advised Bell to come back at 2 o'clock "and I will let you know definitely what
my decision will be. I won't keep you here any longer." Stewart related that
Kay came in, after Bell had left, and Stewart advised Kay and Green, "If Bell
shows up, you fellows go ahead and use him this afternoon. We are short now
and we can use another man. There is a possibility that after our conversation
today, if I give him another chance, that he will show up."
Bell turned in his badge and picked up his last paycheck on March 31. I find
the details of the events of that date unnecessary to a resolution of the question
herein Stewart asserted he would not rehire Bell, at the time of the hearing,
18 Respondent asserts that this testimony is not credible because it is at variance with a
statement given by Bell to the Board investigator on April 16, 1962 Examination of the
pretrial statement reflects that it contains the substance of Bell's testimony but recites
that these events all occurred on Thursday, February 22. It is undisputed that Bell's last
day of work was February 23 There are other patent errors in the pretrial statement, in
the light of the evidence herein as to subsequent events.
COMMUNITY MOTOR BUS COMPANY, INC. 715
because Bell had quit, "walked off the job." Stewart acknowledged the company
records did not reflect that Bell had quit.
Respondent sought to establish that Bell's problems were attributable to excessive
absenteeism. I have found supra, footnote 3, that Respondent maintained a seniority
board for 54 main-line drivers, and a separate extra board for 10 or 12 extra drivers.
Stewart asserted that the extra-board men were used first on the school runs. How-
ever, only 10 or 12 drivers were kept on the extra board while the Respondent
operated 32 morning and 36 afternoon school runs.
It appears undisputed that drivers who were regularly assigned morning runs were
expected to be available for assignment on afternoon school bus runs and drivers
who were regularly assigned to afternoon runs were expected to appear for the pur-
pose of taking out morning school bus runs. As an illustration, a driver whose
regular run terminated at 1 a.m. was expected to return at approximately 7:15 a m.
to take out a school bus run, if needed.
Stewart first asserted, "Bell was only on the extra board approximately 30 days.
Maybe a little longer. Not over 45 days at the most." 19 Stewart was unable to
determine, from his records, whether Bell had in fact succeeded Mallory on a main-
line run, asserting Bell continued as an extra-board driver after Mallory quit. Bell
in such event would be required to report on a 7-day-week basis. However, Stewart
admitted Bell was erroneously charged with a "missout" on his off day in this period.
Thus, in accordance with Stewart's first assertion, it appears Bell was not on the
extra board in late December. Stewart was again self-contradictory; he asserted
whoever is on the extra board stays on it until the main-line board is opened every
3 months. The first main-line board was selected, at the commencement of opera-
tions, September 17. Stewart, admitting he was guessing, thought the board was
reopened around the middle of January, 4 months later. Bell, according to Stewart,
was thus required to report for Mallory's run of 10 hours a day on a 7-day-week
basis, and in addition show up for morning school bus runs at 7:15 a.m. on all
school days 2°
Stewart acknowledged Bell explained that his wife died just before Bell started
to work for Respondent. Bell was left with small children and, each time, explained
the reason for missing particular "show ups" to Stewart or Green, the dispatcher.
Importance appears to have been attached to Bell's absenteeism only as an after-
thought. No yardstick for comparison with other employees was submitted.
Concluding Findings
Determination of the circumstances surrounding Bell's separation from Respond-
ent's employment is entirely a matter of credibility. Stewart's testimony, in its
entirety, reveals evasions, lack of certainty, implausibilities and self-contradictory
statements. His demeanor was not impressive. Portions of Bell's testimony have
been corroborated by witnesses with no direct interest in the outcome of the litiga-
tion. Bell frankly admitted numerous absences. Where conflict with his pretrial
statement existed, Bell responded with a cogent and reasonable explanation. To
the extent Stewart's testimony conflicts with that of Bell, I credit Bell on the basis
of demeanor as well as the other reasons set forth.
If Stewart had not intended to convey to Bell, on February 23, the fact that he
was terminated, it is peculiar that Respondent's records of Bell's absences terminate
on that date. At no other time did Bell's absences approximate 5 consecutive days,
yet this fact does not appear to have been discussed on February 28. If, as Stewart
asserts, there was no conversation on February 23 there was no apparent reason
for Bell to call Stewart on Monday, to request a return to work.
Accordingly, I find that on February 23, 1962, Stewart, in advising Bell if he
had been offered a job by the Union he had better take it, conveyed to Bell the
fact that he was no longer employed by Respondent.
No set words are necessary to constitute a discharge; words or conduct, which
would logically lead an employee to believe his tenure had been terminated, are in
themselves sufficient. N.L R B. v. Cement Masons Local No. 555, etc. (Anderson-
Westphal Co.), 225 F 2d 168 (C.A. 9) .21
i0 Bell went on the payroll on October 11. When a main-line driver, named Mallory,
quit on December 4 Bell was assigned to that run.
20 While there is no doubt Bell failed to report on most of the days listed as "missouts"
Respondent does not explain why school bus runs were scheduled on November 23, 1961,
which was Thanksgiving Day, or on January 7, 1962, which was a Sunday. These, as
well as days off, are among the days charged as missouts.
21 See cases cited in decision , footnote 9.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent urges that if Bell had returned, as requested by Stewart, at 2 p.m.
on February 28, he would still be employed. I have not credited this testimony.
However, Respondent admits Bell appeared for the purpose of ascertaining his status,
and requested that his employment be continued. Stewart does not claim that he
advised Bell to report for work. Additionally, I have found from Bell's credible
testimony that on February 28 Stewart refused to reinstate Bell The refusal was
explicitly by reason of Bell's previous protected activities.
While it may be urged that Stewart's statement to Bell on February 23 was equiv-
ocal, his (Stewart) meaning and intent became unequivocal in his statement to Bell
on February 28.
Numerous Board and court decisions have held that an employer may fire any
employee for a good reason, a bad reason, or no reason at all, so long as the dis-
charge is not within the proscriptions of Section 8(a)(3) of the Act.
I find the reasons for Bell's discharge were those stated to Bell by Stewart, as
related herein by Bell. I further find that such discharge was discriminatorily
motivated by reason of Bell's protected activity, thus in derogation of the provisions
of Section 8(a) (3) of the Act. Even were Ito find Stewart's statement of Febru-
ary 23 did not embody sufficient preciseness to warrant Bell's assumption that he
was discharged, Stewart's refusal to reinstate Bell on February 28, for the reasons
stated by Stewart to Bell, as found herein, nevertheless constitute an unfair labor
practice within the purview of Section 8(a) (3) of the Act.
I also find Stewart's statement to Bell on February 22 constituted interference,
restraint, and coercion in derogation of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Respondent having discharged Roland J. Bell because of his union activities, I
recommend that Respondent offer to him immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority and
other rights and privileges of employment, and make him whole for any loss of
pay suffered by reason of the discrimination against him by the payment of a sum
of money equal to the amount he would normally have earned as wages from the
date on which his employment was terminated by the Respondent to the date on
which Respondent shall offer to him proper reinstatement as herein provided, less
net earnings,22 to be computed on a quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that the Respondent be ordered to make available to the
Board, upon request, payroll and other records to facilitate checking the amount
of earnings due.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
Upon the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent's operations affect commerce within the meaning of Section 2(7)
of the Act.
2. Division 1177, Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint, and Coercion," to the extent therein found, and to the extent found rela-
" See Crossett Lumber Company, 8 NLRB 440, 496.
COMMUNITY MOTOR BUS COMPANY, INC. 717
tive to Bell, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of Roland
J. Bell, thereby discouraging the free exercise of the rights guaranteed by Section 7
of the Act, and discouraging membership in and activities for the above-named labor
organization, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) and (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case, I recommend that the Respondent, Community Motor
Bus Company, Inc., its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouiaging membership in Division 1177, Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, or in
any other labor organization, by discharging or refusing to reinstate employees, or
in any other manner discriminating against them in regard to their hire or tenure of
employment or any term or condition of employment.
(b) Requiring applicants for employment to answer questions concerning their
union membership in a manner constituting interference, restraint, or coercion in
violation of Section 8(a) (1) of the Act.
(c) Interrogating any of its employees concerning organizational activities, or
threatening economic retaliation if any employee engages in such activity, in a manner
constituting interference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
(d) Engaging in surveillance of union meetings, or creating an impression of such
surveillance.
(e In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right of self-organization, to form labor organizations, to join or
assist the above-named Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any other concerted
activity for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2 Take the following affirmative action which it is found will effectuate the policies
of the Act-
(a) Offer to Roland J. Bell immediate and full reinstatement to his former or a
substantially equivalent position without prejudice to his seniority or other rights or
privileges previously enjoyed, and make him whole for any loss of pay he may have
suffered by reason of Respondent's discrimination against him in accordance with the
recommendations set forth in "The Remedy" herein.
(b) Preserve and, upon request, make available to the Board or its agents, for ex-
amination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the rights of employment under the terms of the recom-
mendation herein.
(c) Post at its place of business in Portsmouth, Virginia, copies of the attached
notice marked "Appendix " 23 Copies of said notice, to be furnished by the Regional
Director for the Fifth Region, shall, after being duly signed by the Respondent, be
posted by it immediately upon receipt thereof and maintained for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fifth Region, in writing, within 20 days
from the date of the receipt of this report, what steps the Respondent has taken to
comply with the foregoing recommendations
It is further recommended that unless within 20 days from the date of the receipt
of this Intermediate Report the Respondent shall notify the said Regional Director,
23 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing, that it will comply with the foregoing recommendations,24 the National
Labor Relations Board issue an order requiring Respondent to take the aforesaid
action.
It is further recommended that the allegations of paragraph VI(b) of the complaint
be dismissed.
24 In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director, in writing , within 10 days from the
date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Division 1177, Amalgamated Asso-
ciation of Street , Electric Railway and Motor Coach Employees of America,
AFL-CIO, or any other labor organization of our employees , by discriminating
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT require applicants for employment to answer any questions con-
cerning their union membership in a manner constituting interference , restraint,
or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT interrogate our employees concerning their interest in, or inten-
tions with respect to, joining the above-named or any other labor organization,
or threaten said employees with economic reprisals because they engage in pro-
tected activities , in a manner constituting interference , restraint , or coercion vio-
lative of Section 8 (a) (1) of the Act.
WE WILL NOT engage in or attempt to engage in, or create the impression of,
surveillance of union meetings.
WE WILL NOT in any other manner interfere with, restrain , or coerce our em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist Division 1177, Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in any other concerted activities for the purpose of collective
bargaining or mutual aid or protection , or to refrain from any and all such
activities.
WE WILL offer to Roland J. Bell immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to seniority or other rights
and privileges , and make him whole for any loss of salary or pay suffered as a re-
sult of the discrimination against him.
COMMUNITY MOTOR Bus COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 707 N.
Calvert Street , Baltimore 2, Maryland , Telephone No. 752-8460, Extension 2100,
if they have any question concerning this notice or compliance with its provisions.
Equitable Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case, No. 8-CA-2954. March
25, 1963
DECISION AND ORDER
On January 29, 1963, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, and on
141 NLRB No. 67.