Deluxe Taxi Service

National Labor Relations Board - Board Decisions

Jun 3, 1966

158 N.L.R.B. 1274 (N.L.R.B. 1966)

1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a deferred type. Its view may well be otherwise (and in my judgment should be
otherwise ) when it realizes that the same characteristic inheres in the Union's
representations at Brooks and Nardis , and applies not to merely one figure in the
literature but to six.
The law relating to when elections will be set aside has been recently restated
by the Board in Hollywood Ceramics Company, Inc., 140 NLRB 221; see also the
note at 3 ALR 3d 889, 913-917 . Without restating all the applicable principles,
I regard the cumulative effect of the inaccuracies and misleading statements here
to be so substantial as to require setting the election aside. 6 I therefore find that
the Company was not under a legal obligation to bargain with the Union and
recommend dismissal of the complaint .7
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The unit found appropriate in Case No. 16-RC-3714 is an appropriate bar-
gaining unit within the meaning of Section 9 (b) of the Act.
4. The Union had not demonstrated in a valid election or by other means that
it represents a majority of the employees in the aforesaid unit , and the Company
was therefore under no legal obligation to bargain with the Union at any time
up to and including the date of the hearing in this proceeding.
5. The Company has not committed the unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.] 8
"In so finding , I am not motivated by the fact that the various companies to which
the literature refers are not competitors of the Company, or that some of the rates referred
to were for pieceworkers whereas all the company employees are hourly paid. The Union's
literature covered all the plants in Texas and neighboring States in which the Union had
contracts.
7 The Union has urged that a bargaining order issue , and that the order include a
specific prohibition against unilateral action and a specific requirement for the production
of data. Correspondence in the record establishes that such provisions would be appro-
priate if the duty to bargain existed. See General Counsel's Exhibits 3-14.
8 The Board may deem it advisable to vacate all proceedings in Case No . 16-RC-3716
which followed its decision of December 7, 1964, finding the unit appropriate , and to di-
rect the Regional Director to hold an election in that proceeding.
Baker & Drake, Inc., d/b/a Deluxe Taxi Service and Teamsters,
Chauffeurs, Warehousemen & Helpers Local 533, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Help-
ers of America. Case No. 2O-CA-3548. June 3,1966
DECISION AND ORDER
On March 18, 1966, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
158 NLRB No. 132.
DELUXE TAXI SERVICE 1275
iner's Decision and a supporting brief, and the Respondent filed an
answering brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board dismissed the complaint in its entirety.1
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Teamsters , Chauffeurs , Warehousemen & Helpers Local 533," International
Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America,
herein called the Union , filed a charge on April 2, 1965 , against Baker & Drake,
d/b/a Deluxe Taxi Service , herein called the Respondent, alleging violations of
Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, 29
U.S.C., Sec . 151, et seq., herein called the Act. Upon said charge , the General
Counsel of the National Labor Relations Board , herein called the Board, on July 7,
1965, caused a complaint to issue . Respondent's answer to the complaint was
filed on July 19, 1965.
Pursuant to notice , a hearing was held before Trial Examiner James R. Heming-
way in Reno , Nevada, on October 12 and 13, 1965 . At the opening of the hear-
ing, the General Counsel moved to amend the complaint in certain respects with
regard to the jurisdictional allegations . The motion was granted.
From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Nevada corporation doing business as a taxi service in
Reno and Sparks, Nevada, with its main office and principal place of business
located at Reno, Nevada.
During the year immediately preceding the issuance of the complaint, Respond-
ent, in the course of its business operations received gross income in excess of
$500,000. During the same period , the Respondent , in the course and conduct
of its business operations purchased in excess of $50,000 worth of goods and
products from the Tidewater Oil Company and Richardson-Lovelock, Inc., enter-
prises located in the State of Nevada, which other enterprises had received said
goods and products directly from points and places outside the State of Nevada.
The foregoing jurisdictional facts are not contested . On the basis thereof, I
find that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act for the Board to assert jurisdiction.
II. THE LABOR ORGANIZATION
The Union is a labor organization admitting to membership employees of the
Respondent . As a result of a consent election , the Union was certified on April 27,
1964, as the exclusive representative of the Respondent's employees in certain
classifications , including taxi drivers, for the purpose of collective bargaining. On
January 15, 1965, Respondent and the Union entered into a collective -bargaining
agreement effective from February 1, 1965.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The issue
The case involves only the question of whether or not Respondent discharged
an employee, John H: Bartels, about February 28, 1965, because of his mem-
bership in or activities on behalf of the Union.
, B. Background
On June 1, 1964, the Union filed a charge against the Respondent, alleging
that on May 12, 1964, the Respondent had discharged one Thomas W. Brown and
had engaged in acts in violation of Section 8(a)(1), (3), and (5). Thereafter,
•in July 1964,I.the Acting Regional Director of the Board approved a settlement
agreement under which the Respondent agreed to the posting of 'a notice, the
provisions.of which were the negative assurances such as are usually used in cases
of violations of Section 8(a)(1) and (3) of the Act. However, in the settlement
agreement, it was specifically stated that the Respondent did not admit that it had
violated the Act, and the discharge of Brown was not mentioned in any' way
therein.
At the hearing ^ in ;the instant case, the General Counsel called the aforesaid
Brown as a witness. Although Brown testified to facts relating to his discharge,
these facts need not be considered here on, the merits of his discharge. Brown's
testimony is relevant here only to the extent that it tends to show a disposition
on the part of the Respondent to discriminate against employees because of their
union membership or activities. "
Brown testified to a number, of conversations which he had had with the
Respondent's personnel director, Jess Vulgamore, about the Union, both before
and after the aforementioned election. These conversations were all, apparently,
started by Brown, himself, who sought to convince Vulgamore of the value of a
union. In one. conversation between Brown and Vulgamore a few days after the
election, Vulgamore said that Brown, Bartels, and Morse were the prime instigators
of the union movement and he called them "red hots," a term which Vulgamore
explained to 'Brown meant rabble-rousers or people who pushed for the Union.
Brown quoted Vulgamore also as saying in this conversation that "he was sorry he
had not fired. all three of us, particularly myself and Bartels, well before the elec-
tion, and, if he had, then there wouldn't have been an election . . that cabdrivers
were a dime a dozen in Reno, that he could replace them at any time, that he was
going to make it as difficult as he could and not cooperate with any of the drivers,
and, if necessary, he would fire them all and start with a whole [new] crew."
Brown further quoted Vulgamore as saying that he would "eventually get John
Bartels and Bill Morse."
Brown was discharged in May 1964, for telling a woman customer, who made
a practice of calling the cab company to deliver store purchases to her and then
asking the driver to carry her empty liquor bottles downstairs for her, that he
did not care to make any more deliveries for her because he lost too much time
and made too little. The customer reported this to Vulgamore, and Vulgamore
on the radio, told Brown to come right in. When Brown came, Vulgamore ques-
tioned Brown about the incident, and Brown gave his version and remarked that
Vulgamore certainly could not consider this incident to be serious. Brown quoted
Vulgamore as replying: "Just serious enough. I have been waiting to get you for
a long time, and this is just what I need. You are finished." Brown testified that
he had accused Vulgamore of discharging him, not for a minor altercation, but
because of his union activities, and that Vulgamore had answered, "Since there are
no witnesses here, that is absolutely right," and that when Brown asked what
Vulgamore would say when he was required to make a sworn statement, Vulga-
more had said that he would remember nothing about it.
Vulgamore admitted part of Brown's testimony but denied other parts. He
admitted that he might have told Brown that he considered him, Bartels, and
Morse to be instigators of the Union, that he might have told Brown, after the
election, that he considered Brown to be one of the prime instigators, that he
might have called Brown a "red hot" and that he might have said that taxicab
drivers were a dime a dozen; but he denied that he had said that he was going
to make it difficult and that he would not cooperate with the Union (Brown had
quoted Vulgamore as saying that he would not cooperate with the drivers); he
denied that he said he could start with a new crew if necessary; he denied that he
said he would get Bartels and Morse eventually, and denied that he had told
DELUXE TAXI SERVICE 1277
Brown that he had been waiting a long time to get hini: With respect to the
discharge interview with Brown, Vulgamore testified that he told Brown that his
attitude (toward the customer) was against the policy of the Respondent. He
confirmed that Brown had said, "You don't consider this serious?" but he did
not recall saying, himself, "It is just serious enough." Vulgamore testified that
the discharge interview took place in the shop and that there was no mention of
the Union during the conversation in that place. He testified that that conversa-
tion ended when he told Brown that "he was finished-and he was fired." Vulga-
more testified that he then went upstairs to his office, and 5 or 10 minutes later
Brown came upstairs and accused Vulgamore of "everything in the book," includ-
ing firing him for union activities. Vulgamore quoted himself as saying that
whatever Brown thought the reason was, the real reason was that he was fired
for "hustling this woman for a tip." Vulgamore testified that Brown continued to
berate him for about 45 minutes and that at one point he had told Brown that
Brown could think whatever he wanted to but that the reason he was discharged
was what he had already told him. He confirmed that Brown has said, "There
is no one here, nobody to witness this thing, so tell me, is this the real reason or
isn't it the real reason?" Vulgamore denied that he had said to Brown, however,
"Since there are no witnesses, you are right." He testified that he had merely told
Brown that Brown could think whatever he liked but that the reason was that he
had been discourteous to one of the Respondent's customers. Because of the way
in which Respondent's counsel asked his questions, Vulgamore was not in a posi-
tion to make a direct denial of some of Brown's testimony. Following Vulgamore's
denial that he had said, "Since there are no witnesses, you are right," counsel
asked Vulgamore if, on that occasion or at any other time, he had told Brown,
"I won't remember a thing," to which Vulgamore inquired, "Remember a thing
about what? Did he say?" When counsel answered, "I am sorry. I just have to
rely on my notes," Vulgamore replied, "I will say no. I don't know what he is
talking about." At one other point, counsel misquoted Brown's testimony in
asking his question of Vulgamore. It will be remembered that Brown had quoted
Vulgamore as saying in a conversation a few days after the union election that he
(Vulgamore) was sorry he had not discharged Brown, Bartels,, and Morse, par-
ticularly Brown and Bartels, well before the-election, and that, if he had, there
would not have been any election . Apparently with respect to this, Respondent's
counsel asked Vulgamore if he had said to Brown that, if he (Vulgamore) had
known that Brown and Bartels were active on behalf of the Union, he would have
fired them and there would not have been any election. Vulgamore's denial of
having said this does not, of course, constitute a denial of -what Brown testified
he had said.
Neither Brown nor Vulgamore appeared to me to be a man who would make
a false statement under oath. But obviously both cannot be wholly credited. I
believe that Brown was, to some extent , imbued with conceptions derived through
his interpretation of Vulgamore' s statements , especially in conjunction with his
own discharge, and that these interpretations were influenced by self-interest., To
the extent , therefore, that Vulgamore made direct and unequivocal denials of
certain statements attributed to him by Brown, I credit his denials, but I find that
he did identify Brown, Bartels, and Morse as "red hots" and prime instigators
of the union movement, that he did say he was sorry he had not discharged all of
them well before the election and that if he had, there would not have been any
election. I find that he also said , in effect, that cabdrivers were a dime a dozen
in Reno and that they could easily be replaced. Although some of these state-
ments might have been found to constitute independent violations of Section 8 (a)( I)
of the Act, the complaint alleges no such independent violations. I find them
therefore merely as background to the discharge of Bartels.
C. Discrimination
1. Bartels' employment history and union activity
John Bartels was first employed by Respondent as a cabdriver in October 1959;
he quit in February 1962, returned in July 1962, quit 30 days later, and again
11 consider it probable that this interpretive method may have led Brown to inject the
word "just" into Vulgamore 's reply to his question to Vulgamore , "You don't consider
this serious ?" Without that word , Vulgamore 's reply would have been, "It is serious
enough."
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned in August 1963. His employment appears to have been continuous from
August 1963, to the date of his discharge on February 28, 1965, as hereinafter
related.
To the knowledge of Vulgamore, Bartels was active in promoting the Union
before the union election in April 1964. Vulgamore testified that, about a month
before-the election, Bartels' careless driving had resulted in about $50 worth of
damage to a fender and door of the cab he was driving, that he would have dis-
charged Bartels for that, but that he refrained from doing so because of Bartels'
union activity and the fear of getting "in hot water" over it during that preelection
period of time. Bartels was an observer for the Union at the election in April 1964.
No contract was reached between Respondent and the Union until January 1965.
On January 15, 1965, the parties executed an agreement, effective on February 1,
1965. Bartels testified that he became the union steward and that he thereafter
wore a job steward's button on the left side of his shirt. Vulgamore testified that
he never saw Bartels with a steward's button. He testified, however, that he
assumed that Bartels would be the steward.
2. Bartels' discharge
On February 26, 1965, Bartels was in his parked cab in front of one of the
Reno clubs when the dispatcher called Bartels' number by the two-way radio to
give him an assignment . Bartels testified that there is a dead spot for the first
cab in line at that club, from which the dispatcher could not hear his reply. While
Bartels moved away from the dead spot, the dispatcher repeatedly gave Bartels'
number. When Bartels reached a point from where he could be heard by the
dispatcher, Bartels told him over the radio that he had received the call and "not
to get so damn trigger happy with the foot pedal" or, perhaps, as another witness
put it, "not to get so slap happy with that damn microphone." The dispatcher
told Bartels not to swear at him. The foregoing exchange was overheard by a
girl receptionist in the dispatch office as well as by several employees in the
Respondent's main office where there is a monitoring system. It was not heard by
Vulgamore or by Robert Drake, Respondent's secretary-treasurer.
At 4 p.m. on Friday, February 26, 1965, at the end of his shift, Bartels checked
in at the main office. While the cab was being refueled, the night driver saw a
scratch on one of the fenders of Bartels' cab and called Vulgamore's attention to
it. Vulgamore asked Bartels if he had checked his cab that morning and, if so,
why he had not reported the damage. Bartels replied that at 6 a.m. it was too
dark and cold to check over his cab, that he did not have a flashlight, and that
he was not going to go around the car with a lighted match to check it. Vulga-
more said that Bartels could have checked it after it got light and that "someone
was going to have to pay" for the damage. Bartels testified that Vulgamore told
him that he would have to pay for it. In any event, that was the implication
intended by Vulgamore. Bartels told Vulgamore that he would not pay and that
he would "take it up with the Union." Both Bartels and Vulgamore then left for
the day.
Drake was away from the Respondent's office for a time on February 26, 1965,
but he returned about 4:15 p.m. At that time, Elizabeth Rice, the statistical
clerk at Respondent' s main office, told Drake that she had heard "profanity" over
the air: When questioned by Drake, she told him that Bartels had said, "Don't
get slap happy with that damned radio." Drake questioned others in the office
and then checked with the dispatcher, who gave a somewhat similar account.
Between 5 and 6:30 p.m. that day, Drake telephoned Vulgamore a t his home.
Drake told Vulgamore to discharge Bartels the following day for what he said
over the radio.
The following day, Saturday, was Bartels' day off. When Drake telephoned
Vulgamore that day to see if he had discharged Bartels, Vulgamore told Drake that
it was Bartels' day off. Drake 'then told Vulgamore to tell Bartels when he did
come in that there was no cab for him and that he was through.
Bartels reported for work on Sunday morning, February 28, 1965, at 6 a.m.
'Vulgamore then told Bartels that Drake had told him that Bartels had used pro-
fanity over the air on Friday and that Drake had told him to discharge Bartels.
Bartels asked why Vulgamore had not telephoned him at home. Vulgamore
replied, according to his -testimony, that he always told: a man of his discharge
face to face, or, as Bartels testified, that he did not know Bartels' telephone num-
ber, which was a fact. Vulgamore quoted Bartels as saying , "O.K. If that's the
way it is, no problem, no fuss." He left and returned on March 5, 1965, for his
final check.
DELUXE TAXI SERVICE 1279
3. Concluding findings
The Respondent dismisses the incident of the scratched fender on February 26,
as above related, as of no importance and as playing no part in Bartels' discharge.
It claims that the reason it discharged Bartels was because he used the word
"damn" over the radio, that this was profanity, and that the use of profanity
placed Respondent's radio operator's license in jeopardy. The General Counsel,
on the contrary, contends that the Respondent's fear of losing its radio operator's
license was not genuine, that use of the word "damn," as Bartels used it, without
any invocation of the Deity, is not profanity, and that Bartels' threat to go to the
Union over the matter of whether he should pay for the scratched fender was a
motivating cause for Bartels' discharge. He also adduced evidence to show that
Bartels had never been warned against use of the word "damn" on the radio and
had never been informed that its use would be cause for discharge. I do not
defend the Respondent's apparently callous attitude toward minor violations as
fair. However, if Bartels did not know that such speech was improper, he would
certainly have been expected to make a protest at the time he was notified of his
discharge, yet he made none at all.
The Respondent had posted in its drivers' room a list of "causes for immediate
discharge." Nine of such causes were listed. Among them were: "2. Any obscene
or vulgar language in the presence of customers . 6. Any obscene or vulgar
language over the radio." The General Counsel calls specific attention to the fact
that "profanity," relied on by the Respondent as the cause of discharge, was not
included in the causes listed for immediate discharge, but, he argues, "damn" is
not profane language in any event.
Respondent's contention that its radio operator's license was placed in jeopardy
by Bartels is based on the fact that its radio is subject to, and has been subjected
to, monitoring by the Federal Communications Commission and that the rules and
regulations of that commission prohibit the use of "obscene, indecent, or profane
language or meaning" on a licensed radio. Actually, the Respondent has never
been cited by the FCC for improper language used over the radio, although
Respondent has been cited for technical operating faults. It quotes, however, from
a Digest of Radio Regulations and Instructions for Restricted Radiotelephone
Operators:
The Commission has authority, as public convenience, interests or necessity
requires, to suspend the license of any operator upon proof sufficient to satisfy
the Commission that the licensee: .
(d) Has transmitted superfluous radio communications or signals or com-
munications containing profane or obscene words, language, or meaning.
The Respondent also refers to 18 U.S.C. § 1464, which provides: "Whoever
utters any obscene, indecent, or profane language by means of radio communica-
tion shall be fined not more than $10,000 or imprisoned not more than two
years, or both."
The Respondent's reliance upon such rules and regulations leads the General
Counsel to argue that the word "damn" is neither profane, obscene, nor vulgar.
To be profane, he argues, the word "damn" would have to be used in conjunction
with other words which would denote irreverence of God and holy things or im-
precations of divine vengeance? To be "obscene" or "indecent" language would
have to be such as to "arouse lewd or lascivious thoughts in the minds of those
hearing or reading the publication.' 13
I agree with the General Counsel that the word "damn" or "damned" used as
an expletive , as Bartels used it, is not profane or obscene within the definition
of those terms. Perhaps because the Respondent classified "damn" as profane
rather than vulgar language , the General Counsel does not touch on the meaning
of "vulgar" although the Respondent's rules also prohibit the use of vulgar lan-
guage in the presence of customers or over the 'air. Vulgar, as the word is used
in common speech today , often connotes indecent or offensively suggestive lan-
guage. Although this is no doubt a meaning of "vulgar," this word also more
accurately signifies "lacking in cultivation or refinement ; coarse, or boorish." The
2 Citing inter alia, Duncan V. U.S., 48 F. 2d 128, 133 (C.A. 9 ); Gaine8 v. State, 7 Lea
410 (Tenn.), 40 Am. Rep. 64; Stafford v. State, 91 Miss. 158, 44 So. 801; Town of Tor-
rington v . Taylor, 137 P. 2d 621 , 624, 59 Wyo. 109.
8 Citing Duncan v. U.S., 48 F. 2d 128 (C.A. 9). Also Beaig V. U.S., 208 F. 2d 142
( C.A. 9) ; U.S. v. Davidson, 244 Fed. 523 ( D.C.N.Y. ) ; Magon v. U.S., 248 Fed . 201 (C.A. 9).
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use of "damn" as an expletive (commonly used in coarse language) may, therefore,
in this sense be described as vulgar language. Furthermore, whether or not pro-
fane, the word "damn" is thought of as a "swearword."
However, even assuming for the sake of argument that use of the word "damn"
over Respondent's radio was not expressly in violation of any of Respondent's
rules and that the discharge of an employee for such speech might be found to
be without "just cause," the lack of just cause would not be dispositive of the issue
here.4 For the purpose of determining the right of the employee to unemploy-
ment compensation, lack of just cause for discharge may be a determining factor.
But the same test is not determinative of the commission of an unfair labor prac-
tice. So far as the Act is concerned, an employer may discharge an employee for
slight cause or even for no cause at all so long as the discharge is not designed to
discourage union membership or activity.5 At best, in an unfair labor practice
case, the weakness of an employer's asserted reason for discharging the employee,
would tend to strengthen an inference that the discharge was to discourage union
membership or activity provided such inference, in itself, were otherwise well
founded.6 In the case at hand, such an inference is not strong. Ten months
before Bartels' discharge, Vulgamore, in anger, had spoken in undisguised dis-
taste for the Union and had said that, if he had discharged the three instigators
of the Union well before the election, there would not have been an election.
Although Brown was discharged by Vulgamore within about a month after Vulga-
more made such statement, the General Counsel apparently decided that Brown's
discharge was not without justifiable cause because, in adopting a settlement agree-
ment, the General Counsel not only did not require Brown's reinstatement with
backpay, but consented to the inclusion of a statement that Respondent, in enter-
ing into the settlement agreement, was not admitting the commission of any unfair
labor practice. No acts of interference with, and no restraint or coercion of,
employees in their exercise of the rights guaranteed in Section 7 of the Act were
even alleged to have been committed by Respondent thereafter. The evidence does
not reveal how many employees might have been discharged between Brown's and
Bartels' or the relative seriousness of the causes for discharge of others, if any
there were. I am asked, then, to infer that Bartels was discharged in violation of
the Act because he was one of the three leading union advocates (the third still
being in Respondent's employ after Bartels' discharge), because he was a steward
at the time of his discharge, because two of the three leading union advocates
were discharged by the Respondent, because 10 months before Bartels' discharge
the Respondent had expressed antiunion sentiments, and because the discharge of
Bartels occurred after a final incident on February 26, 1965, when Bartels threat-
ened to go to the Union if he was made to pay for a scratched fender. I am
unable to give this latter incident much value in the formulation of the inference
urged by the General Counsel. I can readily infer that Bartels' conduct may have
provoked Vulgamore at the time of the fender's scratch argument , but if so, he
was provoked before any reference had been made by Bartels to the Union. He
was provoked by Bartels' flouting of the Respondent's rule requiring inspection of
the cab at the beginning of the shift by the cabdriver and requiring him to report
any damage no matter how slight. However, for another reason, Bartels' threat
to go to the Union appears unimportant. It was not Vulgamore who made the
decision to discharge Bartels. It was Drake who made the decision. Drake was
not shown even to have been aware of the argument between Bartels and Vulga-
more about the scratched fender or Bartels' threat to take the matter to the Union
when he made the decision to discharge Bartels. I therefore dismiss that argument
as of no importance in deciding whether or not Bartels' discharge was an unfair
labor practice.
The General Counsel apparently feels that it is incredible that anyone nowadays
should treat the use of the word "damn" as serious enough to cause a discharge.
'Bartels' claim for unemployment compensation was, on appeal, authorized by The
Board of Review for the State of Nevada, on September 1, 1965, with notice served on
December 3, 1965, that board finding that Bartels was not discharged for "misconduct
connected with his work" when he was discharged for saying "damn" on the taxi radio.
5N.L.R.B. v. T. A. McGaheg, d/b/a Columbus Marble Works, 233 F. 2d 406 (C.A. 5) ;
General Tire of Miami Beach, Inc. v. N.L.R.B., 332 F. 2d 58 (C.A. 5) ; Farmers' Co-
Operative v. N.L.R.B., 208 F. 2d 296 ( C.A. 8) ; Riggs Distler & Go, Inc. v. N.L.R.B., 327
F. 2d 575 (C.A. 4)
6 Riggs Distler & Co., Inc. v. N.L.R.B., supra.
DRIVERS, CHAUFFEURS AND HELPERS LOCAL NO. 639 1281
Although I, myself, feel that a reprimand for the first slip in using such word
might have been more temperate, I must consider the fact that Drake may have
a more puritanical attitude toward such language than I have. Not only is a taxi-
driver's statement on the two-way radio heard by the dispatcher, by Respondent's
office staff, perhaps by the FCC, but it is also capable of being heard by
customers over the radio of some 27 other cabs on the street at the same time.
There is no evidence that any other taxidriver ever said "damn"- or "hell" over
the radio who was not discharged therefor. And there is evidence that three
others had been discharged for using such words, two of them after Bartels' dis-
charge. The General Counsel argues that the case of the man discharged earlier
than Bartels for use of profanity was much more aggravated than Bartels (which I
agree it was) and that the last two such employees to be discharged, following
Bartels' discharge and after the filing of the charge in this case, were discharged to
"manufacture an alleged practice of terminating employees for asserted radio trans-
mission violations." Before I could subscribe to the latter argument, I should want
to see evidence that the Respondent had, before Bartels' discharge, refrained from
discharging employees who used similar language on the radio or that Respondent
had been more lenient in the case of similar faults.
Although the case is not without suspicious circumstances, I find that the evidence,
as a whole, does not justify a finding of discriminatory discharge.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not discouraged membership in a labor organization and
has not, by discharging John Bartels on February 28, 1965, violated Section
8(a)(3) or (1) of the Act.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety.
Drivers, Chauffeurs and Helpers Local No. 639, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Poole's Warehousing, Inc. Case No.
5-CC-335. June 3, 1966
DECISION AND ORDER
On March 18, 1966, Trial Examiner Louis Libbin issued his Deci-
sion in the above-entitled proceeding, finding that 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 Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
158 NLRB No. 129.
221-731-67-vol. 158-82