Continental Bus System, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1262 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Bus System, Inc. and Amalgamated
Transit Union, AFL-CIO-CLC. Case 23-CA-
6187
June 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 8, 1977, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
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 his recommended Order, as modified
herein.'
The Administrative Law Judge held that the
following no-access rule was not unlawful: "There
will be no loitering around the terminal while off
duty. There will be absolutely no loitering in the
Express Office by anyone." In making this finding,
he relied on GTE Lenkurt, Incorporated2 which states
that "where an employer's no-access rule is nondis-
criminatory, i.e., it denies off-duty employees access
to the premises for any purpose and is not disparate-
ly applied against union activities, it is presumptively
valid absent a showing that no adequate alternative
means of communication are available." We disagree
for the following reasons:
As the Board found in Tri-County Medical Center,3
the holding of GTE Lenkurt, supra, must be narrowly
construed to prevent undue interference with the
rights of employees freely to communicate their
interest to those who work at different times. In order
to effectuate the policies of the Act, a no-access rule
is valid only if it (1) limits access solely with respect
to the interior of the plant and other working areas;
(2) is clearly disseminated to all employees; and (3)
applies to off-duty employees seeking access to the
plant for any purpose and not just to those
employees engaging in union activity. Except when
justified by business reasons, a rule which denies off-
duty employees entry to parking lots, gates, and
other nonworking areas will be found invalid.
It is evident that the no-access rule herein is
ambiguous and therefore provides no clear indica-
tion that it conforms to the foregoing criteria. As the
229 NLRB No. 180
rule may convey to employees a prohibition of
protected activity that is more extensive than
permissible, Respondent must assume the burden of
the ambiguity. Accordingly, in the absence of special
circumstances or a showing by Respondent that if
potentially unlimited application is justified for
business reasons, Respondent's rule is invalid and
hence violates Section 8(a)(1) of the Act.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Continental Bus System, Inc., Houston, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Insert the following as new paragraph l(d) and
reletter the succeeding paragraphs accordingly:
"(d) Prohibiting access of employees to nonwork
areas during their nonwork time for the purpose of
union solicitation, unless such prohibition is de-
monstrably necessary to maintain production or
discipline."
2. Substitute the following for paragraph 2(a):
"(a) Offer Jimmy Hollins reassignment to his
former position in the breakdown area of the express
department."
3. Substitute the attached notice for that of the
Administrative Law Judge.
Although the Administrative Law Judge correctly found that employee
Jimmy Hollins had previously worked primarily in the breakdown area of
the express department, his Order mistakenly requires Hollins' full-time
reassignment to his former position in the "breakdown department." The
Administrative Law Judge also failed to include in the notice any reference
to Hollins' reassignment. We shall therefore revise the Order and the notice
accordingly.
2 204 NLRB 921, 922 (1973).
3 222 NLRB 1089(1976).
4 Chairman Fanning concurs in this finding on the basis of his GTE
Lenkurl dissent. Member Walther would find no violation in Respondent's
rule. He subscribes to the rationale of GTE Lenkurt on which the
Administrative Law Judge relied and further, like the Administrative Law
Judge, he finds no disparate enforcement of Respondent's valid rule.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
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CONTINENTAL BUS SYSTEM, INC.
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees'
bargaining representative and employer
have a collective-bargaining agreement
which imposes a lawful requirement that
employees become union members.
WE WILL NOT in any manner interfere with any
of your rights set forth above which are guaran-
teed by the National Labor Relations Act.
WE WILL NOT interrogate employees about their
union activities or the union activities of other
employees or give the impression their union
activities are under surveillance.
WE WILL NOT threaten employees that there
would be layoffs, strikes, or loss of benefits
(unless they work harder) because of their union
activities.
WE WILL NOT transfer Jimmy Hollins or other
employees to work they are known to detest to
punish them for engaging in activity on behalf of
Amalgamated Transit Union, AFL-CIO, or any
other labor organization.
WE WILL NOT maintain and enforce a no-access
rule prohibiting employees from union solicita-
tion during their nonwork time in nonwork areas
unless such prohibition is demonstrably necessary
to maintain production or discipline.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of
their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act, as amended.
WE WILL offer Jimmy Hollins reassignment to
his former position in the breakdown area of the
express department.
CONTINENTAL BUS
SYSTEM, INC.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: The
charge herein was filed by Amalgamated Transit Union,
AFL-CIO-CLC (herein called the Union or Amalga-
mated), on August 31, 1976,' and a copy thereof was served
on Continental Bus System, Inc. (herein called Respon-
dent), on September 2. Complaint was issued on October I
and served on Respondent. Summarized, the complaint
contained some nine specific allegations of 8(a)(1) viola-
tions of the Act involving interrogation, threats, and
coercive acts, and alleged that Respondent had violated
Section 8(aXJ) and (3) of the Act by assigning employee
Jimmy Hollins to specified work and by discharging
employee Larry J. Thompson. Respondent duly filed its
answer denying the commission of the unfair labor
practices. Subsequently, on October 19, the Regional
Director for Region 23 issued an amendment to complaint
substituting the name John W. Parker for Larry J.
Thompson, serving same on Respondent, and the latter
amended its answer on October 25 to admit the discharge
of John W. Parker.2
Pursuant to notice, a hearing was held before me in
Houston, Texas, on December 6, 7, and 8. All parties
appeared and were afforded full opportunity to participate,
to introduce and to meet material evidence, and to engage
in oral argument. Briefs were filed by the General Counsel,
Charging Party, and Respondent and they have been
carefully considered.
On the entire record in the case, the briefs, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION 3
Continental Bus System, Inc., is a Tennessee corpora-
tion, with its principal office and place of business located
in Dallas, Texas, and with an office and place of business
located in Houston, Texas. The Houston facility is the only
operation involved in this proceeding. Respondent is
engaged in the business of transporting passengers and
freight by bus through and between the various States of
the United States.
During the past year, Respondent derived gross revenues
in excess of $50,000 from its business of transporting
passengers and freight in interstate commerce.
At all material times herein, Continental Bus System,
Inc., was, and has been, an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
I Most of the relevant events in this case occurred during the calendar
year 1976 and, unless otherwise indicated, all dates hereinafter shall refer to
the year 1976.
2 At the conclusion of his case, General Counsel was permitted to amend
the pleadings to conform to the proof, thereby correcting minor complaint
discrepancies.
I The jurisdictional facts as well as the conclusionary jurisdictional
allegation of the original complaint are admitted by Respondent's original
answer.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
Amalgamated Transit Union, AFL-CIO-CLC, is, 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
Respondent's Houston facility is a bus station which
provides passenger and freight services to the general
public. The operation is departmentalized with a ticket
department, an information department, a porter depart-
ment, and an express department. 0. L. Jones, the terminal
manager, testified terminal supervision is accomplished as
follows: 0. L. Jones, terminal manager, Travis Jackson,
assistant terminal manager; Philip Mayeux, evening termi-
nal manager (4 p.m. to 12 p.m.); and Andy Hendley, night
terminal manager (12 p.m. to 8 a.m.) 4
For a number of years, employee representation at the
terminal has been accomplished through an employee
committee known as the Steering Committee. This employ-
ee committee has maintained contractual relations with the
Respondent during its existence; the most recent contract
being for the period April 1, 1974, through March 31, 1977.
In 1975, Amalgamated attempted, through the Board's
processes, to oust the Steering Committee, but was
unsuccessful, according to counsel's representations, be-
cause of contract-bar considerations. Thus, in mid-June
1976, Amalgamated commenced a new organizational
campaign with the object of obtaining membership
applications from terminal employees and thereafter
causing affiliation of the Steering Committee with the
Union, all through avenues other than the Board's
processes.
B. The Issues
Simply stated, the issues in this case are whether
Respondent engaged in the 8(a)(1) activity described in the
complaint to deter employees from or punish employees
for engaging in organizational and/or affiliation activities
on behalf of Amalgamated and whether Respondent
assigned Jimmy Hollins to less satisfactory work and
terminated John Parker because of their union activities.
C. The Organization and Affiliation Campaign
In mid-June, David Stoops, a special organizer employed
by the Union, contacted employee Jimmy Hollins to ask
for assistance in organizing Respondent's Houston termi-
nal employees. Hollins had assisted the Union in its
unsuccessful 1975 effort and he readily agreed to solicit
employee signatures on some 60-70 membership applica-
tion cards which Stoops supplied.
While Hollins, together with Jase Davis, a fellow
employee and member of the Steering Committee, and
John Parker (to a limited extent as described hereinafter)
solicited membership, Stoops consulted with Steering
Committee members with the aim of causing that body to
4 The complaint alleged and Respondent's answer admitted the designat-
ed positions are supervisory positions within the meaning of Sec. 2(1 i) of the
Act and I so find.
agree to conduct an election at which the employees would
determine whether they desired to have the Steering
Committee affiliate with Amalgamated. He was successful
as the committee, upon motion made by Davis, voted on
July 22 to conduct an election among the employees on
August 2 to determine whether they desired the Steering
Committee to affiliate with the Union.
Respondent's employees participated in a non-Board
election conducted off Respondent's premises on August 2,
voting 64 to 3 in favor of affiliation of the Steering
Committee with Amalgamated.
D. The Alleged Violations of Section 8(a)(1)
The complaint alleges that Respondent, through Termi-
nal Manager Jones, engaged in seven specific violations of
Section 8(a)(l). These consisted of: (1) interrogation of an
employee concerning his union activities in early July; (2)
giving an employee the impression of surveillance in early
July by informing him that another employee had in-
formed him that said employee was soliciting members for
the Union; (3) threatening an employee in early July by
stating if the Union came in Respondent would lay off
employees and the Union would go on strike; (4)
threatening employees in late July by telling them if the
Union came in many employees would be laid off; (5)
threatening employees in late July by telling them he hated
to see a strike at Respondent's terminal because he had
seen one and knew that during a strike employees could
not afford to pay rent or buy groceries; (6) threatening an
employee on or about August 2 by telling him he had
better watch himself because he knew he was encouraging
employees to go vote for the affiliation of the Union with
the Steering Committee, and (7) threatening employees on
or about August 2 by telling them that since they were
dissatisfied with their benefits they would now have to
work harder. Additionally, the complaint alleged Respon-
dent violated Section 8(a)(l) by promulgating and thereaf-
ter enforcing a rule prohibiting employees from entering
Respondent's premises when off duty.
General Counsel sought to prove allegations (1), (2), and
(3) set forth above through the testimony of employee
Hollins.
Hollins indicated during his testimony that Terminal
Manager Jones came up to him in the driveway area of the
terminal in early July and said: "Jim, I heard that you was
getting people signed up for the Union; Vallejo told me."
Hollins claims he invited Jones to have coffee in the
cafeteria after the comment, and that during coffee he said
he was not signing people up for the Union, commenting
there were 80 or 90 employees and he did not think he
could sign that many up for the Union. Jones allegedly
replied "if the Union came in it wouldn't do anything but
strike and there would be layoffs and the Union would be
no advantage to him." While Jones recalled having a
conversation with Hollins in the cafeteria in late July, he
was unable to recite the details of the conversation. His
recollection was that he met Hollins in the cafeteria rather
than in the driveway and he asserted the discussion merely
1264
CONTINENTAL BUS SYSTEM, INC.
related to the pros and cons of unions generally. He denied
that Hollins made any reference to statistics or head count,
denied that he asked Hollins' impression or opinion of
what was going on, and denied he told Hollins if the Union
came in there would be a strike and layoffs. He did remark
during his testimony that Hollins made no open admission
during the conversation and denied specifically that he
informed Hollins that employee Vallejo had told him
Hollins was signing up people for the Union. While Jones
gave what I consider to be credible testimony concerning
employee John Parker's work history and his contacts with
Hollins which related to Parker, he was a most unpersua-
sive witness when relating his denials of employee claims of
interrogation, threats, and coercion. In the first instance,
Jones professed to be disinterested in what Amalgamated
and/or the Steering Committee were doing in July and
August because he was too busy with supervision of the
terminal. I find this to be an incredible statement when
viewed in light of the fact that Amalgamated's success in its
venture would upset the Steering Committee arrangement
wherein Respondent was relatively unrestricted in its
dealings with employees as final resolution of disputes were
made by Respondent, without provision for employee
resort to arbitration. Similarly, Jones denied knowledge of
what was going on in July and August despite the fact that
Supervisor Mayeux testified Jones informed him in July
that Hollins was active with the Union, and despite the fact
that Tony Vallejo, the antiunion chairman of the Steering
Committee, testified that Jones told him in July that he
already knew Hollins was passing out union cards. For the
reasons indicated, I credit Hollins' version of the driveway
and cafeteria incident in question.5
Patently the statement made by Jones in the driveway -
"Jim, I heard that you was getting people signed up for the
union; Vallejo told me" - begs a reply. I find that Jones,
by uttering the statement, engaged in an attempt to
interrogate the employee, and that such interrogation
constitutes violation of Section 8(a)(1) of the Act as
alleged. Additionally, the statement created the impression
of surveillance as it suggested that Jones knew Hollins was
a union organizer and had a source of information
concerning the employees' union activities. Accordingly, I
find that through the remark Respondent created the
impression that it had the employees' union activities under
surveillance and thus it violated Section 8(a)(l) of the Act
as alleged.6 Finally, I find that Respondent, through Jones'
statement to Hollins as to the consequence of union
representation violated Section 8(a)(I) of the Act. By
informing Hollins that "if the Union came in it wouldn't do
anything but strike and there would be layoffs and the
Union would be no advantage to him," Jones made it clear
that he equated union representation with an inevitable
strike and resulting layoffs. I therefore conclude that Jones'
discussion of the possible effects of unionization was in fact
a threat of reprisal rather than an objective prediction of
what might possibly happen, and as such it constituted a
violation of Section 8(a)(1). 7
5 While the complaint alleges and Hollins testified this incident occurred
in early July, the chronology of events during the union campaign reveals
Jones' recollection that this incident occurred in late July is accurate.
I American National Stores, Inc.. 195 NLRB 127 (1972); Maryland One-
Way Clutch Co. Inc.. 200 NLRB 316(1972).
Intended proof of allegations (4), (5), and (7) summa-
rized above was in the form of testimony given by Ann
Ferry, an information clerk in the information department.
Ferry testified that in late July Jones came into the
information room to get coffee and told the four or five
girls working there, including herself, the following:
[H ]e had been working on the yearly sales reports and
that we just would not be able to believe the figures if
we saw them, that the Company was losing business
and the figures were just unreal, how bad business was.
And it just stood to reason that if we went union, that
some of the employees would have to be laid off
because the Company couldn't afford to pay the higher
wages that would be called for - that might be called
for in the new contract. And that he would hate to see,
if a strike occurred, what would happen, because he
had seen a strike in Victoria and what the effects on the
employees, and he would hate to see his employees
have to go through that.
Q. Did he mention what the effects of the strike in
Victoria had been?
A. Just that the people were not able to pay their
bills or pay rent or buy groceries or whatever. They
didn't have the money.
Jones' testimony concerning the late July incident was
fragmentary. He testified the discussion concerned ticket
sales for the month of July rather than overall figures
relating to the Company's business, and maintained that
the layoff discussion occurred in a context of discussion to
the effect that if the employees could not sell the new sales
program, which involved discounts for excursion trips to
certain points, thereby making the Company more money,
there would be layoffs because a furlough had already been
discussed with management. Jones denied he said the
Union would create strikes or layoffs.
With respect to the August incident Ferry testified that
within a day or two after the August 2 election, while
discussing a new sales campaign with the same group who
had been present when Jones made his comments in late
July, Jones told them they were going to have to work
harder because they were not satisfied with their benefits
- they would have to work harder to prove themselves.
Jones testified that his remarks concerning benefits were
made while he was discussing sales figures and his
comment was to the effect that sales had to increase or
there would be layoffs and he observed that the Steering
Committee contract expired in March and he was sure the
members of the Steering Committee would ask for more
benefits - more money - and Respondent could not give
more of something they had had less of than in years past.
I credit Ferry's testimony rather than Jones' with regard
to the late July and August 3 or 4 remarks made by Jones.
Ferry was an impressive witness who apologized in the
courtroom for the testimony she was about to give against
Jones. She gave her testimony in a forthright manner and
appeared to be attempting to recall Jones' exact comments.
I Essex Hire Corporation, 188 NLRB 397. 403 (1971). and cases therein
cited.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, Jones testified in fragmentary fashion,
confusing the two incidents, and otherwise impressed me as
attempting to tailor his testimony to the requirements of
the law rather than revealing his best recollection of the
remarks. Illustrative was his assertion that he mentioned
possible Steering Committee demands. It was clear to
everyone else, and Jones also I suspect, that the great
probability was that the Union rather than the Steering
Committee would make the bargaining demands in March
1977.
I find that Jones' late July comments to the female
employees in the information department constituted a
clear threat that there would be layoffs if they chose to
affiliate with the Union and by making such comment
Respondent violated Section 8(a)(1) as alleged. Similarly, I
find that Jones attempted to cause the employees to
conclude a strike was inevitable if they selected the Union
as their collective-bargaining agent. He did not, during the
July conversation, preface his remarks with language
indicating that events beyond Respondent's control could
cause a strike so we are not confronted with a prediction
based on the actions of the Union. Accordingly, I find the
comments concerning a strike to be violative of Section
8(a)(1) of the Act.
While Jones claimed he prefaced his benefits remark
with an explanation that the Steering Committee would
probably ask for more benefits in March, I find, as
indicated above, that he did not. Rather, as Ferry
indicated, he simply stated a day or two after the August 2
election that since the employees were not satisfied with
their benefits they would have to work harder. The only
explanation for Jones' conclusion that employees were not
satisfied with their benefits, which appears in the record in
this case, is the fact that they voted overwhelmingly - 64
to 3 - for affiliation with the Union. As the remark was
made immediately after the election, an inference is
compelled that the employees' selection of the Union
demonstrated to Jones that employees were not satisfied
with their benefits. Had Jones expressly stated that since
you employees have selected the Union demonstrating you
are not satisfied with your benefits you must now work
harder and prove yourselves, he would have clearly
violated Section 8(a)(1). I find that his comment carried
precisely the same message and conclude that Respondent
violated Section 8(a)(1) of the Act through Jones' utter-
ance.
Allegation (6) referred to a Jones-Hollins discussion on
August 2. Hollins testified that on the day of the election,
between 10:30 and 11:30 a.m., Jones approached him in
the breakdown area and said, "Jim, you're telling people to
go vote - you better watch yourself." Thereupon, Hollins
claimed he denied he was telling employees to vote or
where to vote. Jones denied that he discussed the affiliation
election with Hollins at any time and claimed he had no
conversation with him after the cafeteria incident in late
July. I credit Hollins and find that Respondent violated
Section 8(a)(l) as alleged by Jones' August 2 comments to
Hollins.
I Jones credibly testified the rules set forth in Resp. Exh. 6 had been in
effect during the 5-1/2 years he has been terminal manager.
There remains resolution of the alleged unlawful promul-
gation and enforcement of a rule prohibiting employees
from entering or remaining on company premises during
their off-duty time. The rule is set forth in a document
entitled "Terminal Instructions Express Department"
which provides, in pertinent part (Resp. Exh. 6):
C. There will be no loitering around the terminal
while off duty.
D. " . . There will be absolutely no loitering in the
Express Office by anyone".
There can be no finding of violation as to the promulga-
tion of such a rule as the record quite clearly reveals off-
duty loitering by employees at the terminal was prohibited
by company rule long before the affiliation campaign
began.8 Rather, the evidence which must be closely
scrutinized is that evidence which reveals how the rule was
enforced before and during the affiliation campaign.
Terminal Manager Jones explained the rule was not strictly
enforced as long as the loitering was not interfering with
the operation of the employees on duty.
Examples of instances of enforcement of the rule
occurring prior to the affiliation campaign were supplied
by Jones. He testified that he ordered an information clerk
off the premises in early 1976 when she interfered with a
ticket agent by talking to him when she was off duty and he
was working and that he ordered another information
department employee, Dorothy Hinson, off the premises
several times in early 1976 because she loitered while off
duty all over the information department, the driveway,
and around the ticket department. Additionally, Jones
indicated he had asked Travis Jackson to leave the
premises in late 1975 when he was loitering and talking to a
ticket agent during his off-duty time, and that, similarly, he
had ordered one Linda Woods, an information clerk, to
leave in late 1975 or early 1976 when she was found
loitering in the information department where they were
answering phones or at the ticket counter where the ticket
agents work.
General Counsel sought to support this complaint
allegation with testimony from Hollins and Jase Davis.
Hollins testified he had not been asked to leave the
terminal during his off-duty hours in the 15 or 16 years
preceding the Union's affiliation campaign.
Hollins was first evicted from the premises in latter July
when he was in the baggage room distributing leaflets
announcing the Steering Committee's action of July 22 and
the coming employee affiliation election scheduled for
August 2. On that occasion, Hollins testified Supervisors
Mayeux and Gayton approached him asking what the
documents were. Hollins claims he told Mayeux they were
union pamphlets and he asked if Mayeux wanted one.
Mayeux supposedly replied no, observed Hollins was
interfering with a man's work, and told him to get off the
premises. In response to leading questions propounded by
Respondent's counsel, Mayeux denied having seen Hollins
pass out union cards or literature, denied that Hollins ever
offered him a card or pamphlet, and denied that he had
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CONTINENTAL BUS SYSTEM, INC.
ever discussed the Union with Hollins in any way.
Significantly, Mayeux failed to indicate whether he asked
Hollins to leave the terminal on the occasion under
discussion and on another occasion a week or so later
which is discussed, infra. I credit Hollins as there is no
doubt in my mind that the entire supervisory force was
aware in late July that Hollins was distributing cards and
leaflets for the Union and they embarked on a course of
conduct designed to keep card and literature distribution
or oral solicitation out of the terminal to the extent
possible.
Hollins was next evicted from the terminal within a
matter of days after the first Mayeux eviction. Thus,
shortly before the affiliation election on August 2, Hollins
left work at quitting time and after a few beers at a local
tavern returned to the terminal cafeteria where he engaged
Tony Vallejo, who was seated with his wife, in conversation
during which he told Vallejo, who was chairman of the
Steering Committee, and explained that he favored the
Steering Committee arrangement, that he should give up
on the Steering Committee because the Union was going to
win. When Vallejo's wife got up and left and Vallejo told
Hollins he did not want to discuss the matter, Hollins left
the cafeteria and went across the driveway to the ticket
counter. He there engaged ticket agent Robert Osorio in
conversation and Vallejo, on observing what appeared to
be an argument between Hollins and Osorio being
conducted in the presence of customers, called Jones to
report that Hollins was creating a disturbance at the ticket
counter during his off-duty time. Jones, accompanied by a
security guard, came to the driveway area where he
intercepted Hollins, and, after ascertaining that Hollins
had been drinking, ordered him off the premises, informing
the guard to take necessary action if he returned. 9
About a week after the above-described incident, Hollins
was ordered off the premises while distributing leaflets
during his off-duty time. On this occasion, Mayeux once
again found Hollins in the terminal and asked what he had.
Hollins purportedly replied "papers pertaining to the
Union," offering Mayeux one, and Mayeux told him "If I
catch you in here again, I'm going to put the security guard
on you. I want you to leave immediately because you're off
the clock." Mayeux denied he discussed the Union with
Hollins at any time and failed to indicate what was said
when he evicted Hollins from the premises. I credit
Hollins.'o
The other incident involved Jase Davis. Davis testified
that 3 or 4 days after the affiliation election he was at the
terminal having coffee at the snackbar when he saw
employee Sack looking out a window at the rear of the
building. Davis joined Sack who was also off duty. Davis
left Sack to go to his car and greeted another employee,
Willie Gross, as he crossed the driveway. Jones intercepted
him as he started back to the snackbar and told him there
was too much work to be done; he could not be stopping
employees from working; and he would have to leave the
premises. Davis claimed Jones said he should go around
9 Although Hollins, Vallejo, and Jones gave slightly different versions of
this incident, the variances are insignificant.
tO Shortly after the August 2 employee affiliation election. Hollins was
called to the office by Jones and was there counseled about being in the
terminal during his off-duty time. When he was asked to sign a paper, which
the corner to the bar to do his union transactions and he
testified Jones explained he could not talk about anything
pertaining to the Union with employees during their on-
duty hours. Jones acknowledged asking Davis to leave the
premises on the occasion in question but claimed the
Union was not mentioned at the time. Jones gave his
testimony by responding to counsel's leading questions and
made no attempt to state his version of what was said on
this occasion. The record is barren of evidence which
would reveal that Davis was interfering with the work of an
on-duty employee at the time. Under the circumstances,
including the fact that Jones was aware that Davis was a
leading proponent of the Union which had just won the
affiliation election by a vote of 64 to 3, I credit Davis.
Despite the fact that I am convinced that Respondent
ejected Hollins and Davis from the premises to prevent
them from soliciting for the Union during their off-duty
time, I conclude Respondent did not violate the Act by
these actions. Controlling Board precedent is set forth in
GTE Lenkurt, Incorporated, 204 NLRB 921, 922 (1973):
which provides:
where an employer's no-access rule is nondiscriminato-
ry, i.e., it denies off duty employees access to the
premises for any purpose and is not disparately applied
against union activities, it is presumptively valid absent
a showing that no adequate alternative means of
communication are available ....
As revealed above, Respondent without contradiction
adduced testimony to show that it evicted at least four
employees from the premises during 1975 and 1976 for
reasons other than the prevention of solicitation on behalf
of a union. Thus, we have a situation in which four
employees were evicted from the premises pursuant to the
rule in situations unconnected with union activity, Hollins
was evicted on one occasion when he was drinking and
causing disruption, and Hollins and Davis were evicted on
three occasions when Respondent believed they were
soliciting for the Union. Under these circumstances, I find
that the rule has not been shown to have been disparately
applied against union activities. Consequently, as no
evidence was offered to show that no alternate means of
communication was available to the Union and its
employee organizers, I conclude that General Counsel has
failed to prove by a preponderance of the evidence that
Respondent promulgated and enforced an unlawful no-
access rule. Accordingly, I shall recommend dismissal of
paragraphs 8 and 9 of the complaint.
E. The Alleged Discriminatory Reassignment of
Jimmy Hollins
Jimmy Hollins has been employed at Respondent's
Houston terminal since 1960. He was hired as a porter and
worked in the porter department for his first 9 or 10 years
with the Company. Thereafter, he was promoted to freight
he interpreted as an agreement that he would not be on the premises during
his off-duty time, he refused to sign. He testified he then told Jones that
people had been going around saying he started the Union and he was going
to back it 100 percent if it came in. Jones did not deny the incident or the
conversation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent and, except for a brief assignment involving
supervision of porters, he has worked in the freight
department since being promoted.
Although the testimony revealed Hollins was active on
behalf of the Union when it originally sought to organize
Respondent's employees in 1975, his extent of participation
in that campaign was not fully developed at the hearing. It
is clear, however, that Hollins was the Union's most ardent
supporter in the 1976 affiliation campaign. He was the
employee first sought by Special Organizer Stoops, and he
accepted some 60 to 70 union membership applications
and promptly distributed approximately 50 cards to his
fellow employees. Moreover, after the Steering Committee
voted in favor of conducting an employee election to
decide the affiliation issue, Hollins distributed copies of the
leaflet describing the action taken by the Steering Commit-
tee on affiliation and announcing the date, place, and time
the election would be held. Additionally, he engaged in
extensive verbal solicitation of membership and urged
employees to vote during the election, informing them
where to go.
While Terminal Manager Jones sought to convey the
impression that he was not really interested in the union
affiliation campaign and had limited knowledge of Hollins'
role in the campaign, the record reveals the contrary is true.
Thus, as early as July, Supervisor Mayeux testified that
Jones informed him Hollins was active in the Union. As
previously indicated employee Tony Vallejo, who was
sympathetic to Respondent rather than the Union's cause,
conversed with Jones in July shortly after he discovered the
Union was attempting to organize and, when he told Jones
that Jimmy Hollins was passing out cards, Jones replied he
had already known that for 2 weeks. Additionally, Mayeux
testified Vallejo kept management aware of what was going
on during the affiliation campaign. Jones denied he told
Mayeux that Hollins was active in the Union and he
denied that he and Vallejo discussed the union organiza-
tion, except for an occasion during which Vallejo informed
him the Steering Committee had voted to conduct an
affiliation election. Although a credibility resolution is not
required as the testimony of Mayeux affirmatively estab-
lished Respondent's knowledge of Hollins' union activities,
I feel constrained to observe that Jones was a most
unimpressive and unpersuasive witness when testifying
concerning his interest in or knowledge of the union
" The job description for freight agent lists the following duties:
A. Accepting express in accordance with appropriate Express
Tariff.
B. Checking for shipper's labels.
C. Checking for size limitations.
D. Preparing busbill properly.
E. Tariffweight.
F. Rate Scales.
G. Determiningof excess value charges.
H. Transportation of mail.
I. Placement of shipment for loading.
J. Accounting procedures.
K. Accounting and reporting of monies as prescribed by Manage-
ment.
L. Releasing of express to consignees in accordance with pre-
scribed rules.
M. Notifying consignees of arrival of shipments.
N. Collecting storage charges.
O. Manifesting.
affiliation campaign. I accept as truthful the testimony
given by Mayeux and Vallejo regarding Respondent and
Jones' knowledge of Hollins' union activities.
The incidents set forth above reveal, in part, the context
in which Hollins was assigned to work he had specifically
indicated he did not like. As previously observed, Hollins
was classified as a freight agent during the 6 or 7 years
immediately preceding the hearing. While many functions
are performed by freight agents within the freight depart-
ment, t Hollins' testimony, which was not seriously
disputed, was that he preferred manual work and, accord-
ingly, had worked primarily at the task of freight break-
down t 2 from the time he came into the department until
after the August 2 election.
About a month prior to the August 2 election, Hollins
was supervising a crew of cleanup men and a new bid sheet
was distributed pursuant to Respondent's contract with the
Steering Committee. Hollins, who was the number two
man on the seniority list, discussed openings in the freight
department with his supervisor, Travis Jackson. Hollins
contended, and Jackson verified, that Hollins indicated he
would bid back into the freight department if he were
permitted to work in freight breakdown, rather than at the
front desk, where he would have to deal with customers,
money, and paperwork. As indicated by Jackson, Hollins'
request was discussed by Jackson and Jones, with the latter
indicating Hollins' wish should be granted. Jackson told
Hollins he could work breakdown - to sign the bid sheet.
The arrangement was to last until shortly after August 2,
when Hollins was instructed to work at the pickup
window.' 3 Hollins testified he protested the pickup window
assignment, telling Jones he preferred breakdown, and
Jones purportedly said he would work the pickup window;
that is where he would stay whether he liked it or not.
Jones, without indicating whether he had any conversation
with Hollins wherein the latter protested his assignment to
the pickup window, simply testified he did not tell Hollins
to work at the pickup window. I credit Hollins.' 4
Analysis
Respondent would have me find that it practiced no
discrimination against Hollins because he was merely
required to perform one task rather than another, which he
preferred, within his department and within his job
P. Filing in-bound express in accordance W/ instructions by
Management.
Q. Compliance with Terminal Instructions and other procedures
as may be directed by Management.
12 Freight breakdown consists of separating freight items in a breakdown
area and loading the freight on carts which are thereafter taken to specific
buses.
13 The duties performed by a freight agent at the pickup window
encompassed identifying the customer picking up freight, removing the
proper freight from the storage bins, and obtaining the proper money
and/or signature from the customer before handing him the merchandise.
14 Travis Jackson testified he assigned Hollins to the pickup window as
the freight business had almost doubled due to a strike situation at a
competitor's operation. I do not credit Jackson regarding the reason Hollins
was reassigned as the increase in business would just as logically dictate use
of an experienced man in breakdown. Additionally, as indicated by Hollins,
and I so find, Jones made the original decision and Jackson merely
implemented it.
1268
CONTINENTAL BUS SYSTEM, INC.
classification. Such a finding would be buttressed by the
fact that he worked the same hours, received the same pay,
and was not shown to have been engaging in more difficult
or onerous work while at the pickup window rather than in
his normal breakdown work. I reject this argument for the
reasons set forth below.
In the instant situation, it is abundantly clear that
Hollins, who I find had worked primarily at the breakdown
functions for years, was expressly promised by Jackson
(with Jones' approval) that he would be permitted to
resume work in the breakdown area if he left his position in
the porter department. At the time of the change, he made
it clear, and Jackson and Jones were fully aware, that
Hollins disliked and did not want to work at the front desk.
Rather than keep the promise, Respondent precipitously
reassigned Hollins to the writeup window informing him he
would work there whether he liked it or not immediately
after the August 2 election.
I cannot accept the explanation offered by Respondent
to justify the reassignment - that Hollins was needed at
the pickup window because the volume of freight increased
in July and August for two reasons. First, it appears
Hollins was not reassigned until the rush occasioned by a
struck bound competitor was almost over and, second,
because logic dictates that work increased throughout the
freight department rather than just at the pickup window.
In my view, Hollins would have contributed more by
working at his specialty, breakdown, during the period of
increased activity.
I find that Respondent reassigned Hollins from break-
down to the writeup window for the sole purpose of
punishing him for engaging in solicitation and other
activities on behalf of the Union. The animus displayed
against the Union by Jones, the curtailment of employee
union activity at the terminal, the timing of the reassign-
ment, and the lack of justification for the action convince
me that Jones caused the reassignment to punish this
known union adherent for his leadership among those
employees who voted for affiliation with the Union. This
conclusion is buttressed by the fact that Hollins was not
reassigned for a week or even a month - he was kept at
the writeup window almost exclusively until 2 weeks before
the hearing and was, at the time of the hearing, still
working the writeup window about half of each working
day. Respondent was well aware of the fact that Hollins
viewed his assignment to the pickup window as punish-
ment for his union activities and the essence of the
violation of Section 8(aX3) of the Act is that Respondent
was motivated to alter the "condition" of Hollins' employ-
ment to discourage him and other employees from
engaging in union activity. 1'
F. The Discharge of John Parker
John Parker was hired by Respondent as a porter on
February 2 upon the recommendation of Hollins. Hollins
claims he introduced Parker as his intended son-in-law and
15 Hollins. like employee Holmes in Lowery Trucking Company (200
NLRB 672, 676-677), was treated differently than other employees because
of his union activity. As previously indicated, Respondent had no valid
business reason to transfer Hollins. Thus, Avondale Shipyards, Inc., 162
NLRB 421 1967; Walker Manufacturing Co., 161 NLRB 722 (1966); The
Jones testified Parker was merely described as dating
Hollins' daughter. There is considerable conflict in the
record as to whether Jones knew, at the time Parker was
terminated on August 19, whether Parker was then Hollins'
son-in-law. I find it unnecessary to resolve this conflict as I
find for the reasons set forth hereinafter that Parker was
discharged for cause at a time when Respondent had no
knowledge he was engaged in union activities.
Parker's union activity was limited to signing a member-
ship application and distributing three cards accompanied
with affiliation election leaflets to employees in the
baggage room at the terminal. Supervisor Mayeux came to
the baggage room while Parker was there to distribute the
cards and leaflets and Mayeux then asked Parker if he was
on the clock and ordered him off the premises when Parker
replied in the negative. Parker attributed no conversation
concerning the Union to Mayeux during this incident and,
when asked if Mayeux saw the union documents, replied,
"Well, they were hid. I had them hid. It's a possibility."
Respondent denied any knowledge of Parker's union
activities.
Terminal Manager Jones testified that he spoke with
Parker no less than six times from the date of his hire to his
termination concerning deficiencies in his performance,
attendance, tardiness, and attitude towards his work.
Without contradiction, Jones testified he spoke to Hollins
shortly after Parker was hired and informed him that
Parker was not developing and would have to shape up,
requesting that Hollins have a serious talk with Parker. In
early June, Jones again told Hollins that Parker was not
developing and Hollins promised to talk to Parker again.
Subsequently, in late June, Jones once again spoke to
Hollins about the matter and Hollins replied he had done
all he could; he gave up on him; he did not know what was
wrong with the boy; and Jones would just have to do what
he wanted or had to do.
Parker's immediate supervisor, Mayeux, testified that,
insofar as his work performance was concerned, Parker
was average to good when he was closely supervised, but
was a poor employee when he was not closely supervised.
Mayeux found it necessary to discuss tardiness with Parker
on three or four occasions in June and July. Additionally,
Mayeux admitted he complimented Parker when he did a
good job on several occasions.
In addition to the testimony adduced through Jones and
Mayeux regarding Parker's deficiencies as an employee,
Respondent placed in evidence certain memoranda and so-
called counseling reports which had been placed in this
employee's personnel file. The memoranda cover situations
which were discussed with Parker by the supervisor
involved and the counseling reports documented formal
reprimands which were reduced to writing before discus-
sion with the employee and were signed by Parker at the
time of the counselings, which were conducted in the
terminal manager's office.' 6 Summarized, such records
revealed the following: that on March 27, 1976, Mayeux
reported that Parker was absent from work after "vaguely"
Borden Co., 161 NLRB 1271 (1966); and Macy's v. N.LR.B., 389 F.2d 835
(C.A. 8, 1968), cited by Respondent in its brief are factually distinguishable.
16 Parker was present in the hearing room when the memoranda under
consideration were discussed and placed in evidence. As he was not called
as a rebuttal witness, I accept the facts as documented to be true.
1269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating the preceding day there was a possibility he might
have to visit a sick aunt the next day - Mayeux felt no
specific arrangement for absence had been made; on July
5, Parker was out of uniform, falsely informed Supervisor
Gayton it was wet when in fact it was dirty, and he was
required to punch out until he appeared for work in a clean
uniform; on June 16, Parker was sent home because he
"mouthed off" when Supervisor Gayton reprimanded him
for sitting down and talking rather than working; on June
17, Parker was formally counseled for "lack of interest in
his job and attitude in general," on July 26, Mayeux
clocked Parker out when he could not find him on the
premises and orally reprimanded the employee when he
returned from across the street 5 minutes later; and on July
27 Parker was formally counseled by Jones concerning
absence from the premises while on the clock.
The event which precipitated Parker's discharge oc-
curred on August 19. Parker was scheduled to report for
work at 4:30 p.m. that day and he appeared at the terminal
sometime after noon to obtain money from the credit
union. As he left the terminal, accompanied by his wife,
Mayeux was parking his car across the street. While
Mayeux was awaiting the movement of traffic to cross the
street, Parker hailed him stating he might be late; he had to
take his car to the shop. Mayeux waved his hand when
Parker finished his sentence.
Parker did not report for work at 4:30 p.m. on the date in
question and, at approximately 4:40 p.m., Driveway
Supervisor Owens alerted Jones to such fact. Jones asked
Jackson and Mayeux if they had heard from Parker.
Mayeux then informed Jones that Parker had told him in a
"jiving" way earlier in the afternoon something about
reporting - that he didn't know whether he said he would
or would not. Jones thereupon pulled Parker's card from
the rack and went to the dispatcher's office where he could
intercept Parker if he came to work. At some subsequent
time, which Jones places at 5:10 p.m. and Parker places at
4:45 p.m., Parker came to work and Jones refused to let
him go to work stating, "John, I'm not going to let you
punch in today. You're through; I'm letting you go." Jones
testified Parker's tardiness on the date in question made
him mad as there was much work to be performed and that
Parker's attitude when he reported - evidenced by his
"sauntering in" with no effort to hurry - increased his
anger to the point that he spontaneously terminated the
employee.
Analysis
While some discharge situations pose close issues, such is
not the case in this instance. It is well established that an
employer may hire or fire employees for any reason
whatsoever, or for no reason at all, as long as the
motivation is not violative of the Act.' 7 I find that General
Counsel has failed to sustain his burden of proof with
regard to the Parker discharge because the evidence fails to
reveal that Respondent was aware Parker was engaged in
union or other protected activities.
IT N.L.R.B. v. Ace Comb Co., 342 F.2d 841 (C.A. 8, 1965); N.L R.B. v. T.
A. McGahev, et al., d/b/a Columbus Marble Works, 233 F.2d 406 (C.A. 5,
1956). and cases there cited.
"8 Jones denied that he knew prior to the hearing that Hollins and Parker
General Counsel urges strenuously that company knowl-
edge of Parker's union sentiments and activities should be
inferred from the fact that Respondent knew Parker was
Hollins' son-in-law and denied this knowledge to mask its
real reason for the termination.ls I find no merit in this
argument. While one might suspect that a son-in-law would
be of the same persuasion as his father-in-law in a matter
such as union preference when they both work for the same
employer, suspicion is not proof and the inference General
Counsel would have me make is not warranted in this case.
Particularly is this true in the case sub judice where the
record contains no affirmative evidence of company
knowledge apart from the relationship between Hollins
and Parker.
Moreover, assuming arguendo, Respondent was aware of
Parker's prounion sentiments but unaware of any union
activity on his part - a situation which would exist if
General Counsel's contentions were accepted - I conclude
that Parker's work history was so poor that mere prounion
sentiment would not insulate him from discharge in the
circumstances of this case. In short, I credit Jones'
assertion that Parker's tardiness on August 19 was the
motivating reason for the termination. Accordingly, for the
reasons stated, I find that General Counsel has failed to
prove by a preponderance of the evidence that the
discharge of John W. Parker was in violation of Section
8(a)(1) and (3) of the Act. Accordingly, I shall recommend
dismissal of the complaint in this regard.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Continental Bus System, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Amalgamated Transit Union, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating employees concerning their union
sentiments and activities and threatening employees with
layoffs, harder work, strikes and other acts of retaliation if
they supported the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Sections 8(a)(l) and 2(6) and (7) of the Act.
4. By assigning Jimmy Hollins to work it knew to be
less desirable to him because of his activities on behalf of
the Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the Act.
5. General Counsel has failed to establish by a
preponderance of the evidence that the discharge of John
W. Parker was violative of Section 8(a)(1) and (3) of the
Act.
6. General Counsel has failed to establish by a
preponderance of the evidence that Respondent promul-
gated or enforced a nonaccess rule in violation of Section
8(a)( ) of the Act.
were related. I do not credit Jones as Mayeux testified Jones had informed
him almost a month earlier that the two were related, without indicating the
precise relationship.
1270
CONTINENTAL BUS SYSTEM, INC.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 19
The Respondent, Continental Bus System, Inc., its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees concerning their union
activities or sentiments, or giving the impression their
union activities are under surveillance.
(b) Threatening employees with layoff and strikes if they
select the Union to represent them.
(c) Threatening employees with loss of benefits unless
they work harder because they selected the Union to
represent them.
(d) Discouraging membership in or activities on behalf of
Amalgamated Transit Union, AFL-CIO-CLC, or any
other labor organization of its employees, by reassigning
employees to work tasks they are known to detest because
of their activities on behalf thereof or otherwise discrimi-
nating in regard to the hire or tenure of employment or any
terms or conditions of employment of its employees.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
19 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.
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Jimmy Hollins full-time reassignment to his
former position in the breakdown department.
(b) Post at its Houston, Texas, place of business, copies
of the attached notice marked "Appendix."2 0 Copies of
said notice, on forms provided by the Regional Director for
Region 23, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
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 customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the
complaint of violations of the Act not specifically found
herein be dismissed.
20 In the event that the Board's 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."
1271