Don's Bus Company, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1981

256 N.L.R.B. 266 (N.L.R.B. 1981)

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Don's Bus Company, Inc. and Mervin Kukahiwa.
Case 37-CA-1590-1
June 1, 1981
DECISION AND ORDER
On December 10, 1980, Administrative Law
Judge Martin S. Bennett issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard before me in Honolulu, Hawaii, on
July 29 and 30, 1980. The complaint issued January 30,
1980, and is based upon a charge filed by Mervin Ku-
kahiwa on December 14, 1979, alleges that Respondent,
Don's Bus Company, Inc., was engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act. Briefs have been submitted by the General
Counsel and Respondent and have been carefully consid-
ered.
Upon the entire record in the case, and from my ob-
servation of the witnesses, including their demeanor, I
make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Don's Bus Company, Inc., herein called Respondent, is
a Hawaii corporation with an office and place of business
in Honolulu, which is engaged in the operation of a bus
freight primarily involved in the transportation of chil-
dren to and from school and with a portion of its oper-
256 NLRB No. 42
ation involved in transporting private charter groups.
Respondent annually receives gross revenues in excess of
$500,000. It also purchases and receives supplies originat-
ing outside the State of Hawaii valued in excess of
$50,000 per annum. I find that the operations of Re-
spondent affect commerce within the meaning of Section
2(6) and (7) of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Issues
Respondent is under contract to the city and county of
Honolulu to transport children to and from schools. It
also provides charter services to public schools as well as
other groups. It maintains two garages in Honolulu, one
on Sand Island and the other at Campbell Industrial
Park, which are approximately 32 miles apart.
The drivers customarily complete their morning run
and either return the bus to the garage or proceed on a
charter. Some of the buses are equipped with two-way
radios to inform the garage of breakdowns.
The Company has rules, copies of which are given to
each driver at the beginning of the school year. They
provided, in part, that drivers are responsible for the
servicing of fuel, oil, water, checking of battery, and
cleanliness. They also provide that no driver would
switch buses with another driver without the approval of
a supervisor. Each driver has a bus which is assigned to
him. Prechecking of buses includes the checking of the
condition of the tires on the bus.
The Charging Party, Mervin Kukahiwa, herein called
Kukahiwa, had worked for Respondent for about 3 years
prior to his termination at Sand Island on December 13,
1979. He had previously worked at its other facility at
Campbell Industrial Park.
In October 1979, about 2 months prior to his dis-
charge, Kukahiwa allowed his 16-year-old nephew, not a
licensed driver, to operate the company bus. Respondent
had previously experienced problems with Kukahiwa
carrying unauthorized passengers and he had been
warned about this.
When warned for permitting his nephew to drive the
bus, Kukahiwa became insolent towards Assistant Super-
visor Frances Iaea, assistant supervisor of the Campbell
Industrial Park facility; it is clear that Iaea is a supervisor
within the meaning of Section 2(11) of the Act. As a
result of this, Iaea threatened to resign if Kukahiwa was
not discharged. As a result, President Donald Gomes of
Respondent left orders to terminate Kukahiwa. Supervi-
sor Walter Kuiee of the Campbell Industrial Park told
Kukahiwa the next morning that he had been discharged.
As a result, Kukahiwa went to Sand Island and pleaded
with Gomes to allow him to continue working. Gomes
ultimately relented and permitted Kukahiwa to return to
work on condition that he drive at the Sand Island facili-
ty.
On December 11, Gomes convened a meeting of the
Sand Island drivers. He was concerned about "sandbag-
ging" when charter drivers did not return to make their
afternoon school runs. This was a concern to Gomes be-
cause the State levies a fine if students are not picked up
DON'S BUS COMPANY, INC. 267
by the scheduled bus. Gomes also cautioned the drivers
about the use of drugs because one driver had an acci-
dent while under the influence of marijuana; he also dis-
cussed safety procedures.
Kukahiwa asked about checking the tires on his bus,
stating that he could not tell when his bus had a flat tire.
This surprised Gomes because of Kukahiwa's experience
and his years with the Company. Indeed, Kukahiwa
complained that he did not want to soil his clothing
when checking his tires, and Gomes advised him to use a
stick like the other drivers did.
After the meeting, Gomes told Kukahiwa that he
wanted to talk to him in his office about an accident. Ku-
kahiwa and his girlfriend, Kaneakua, accompanied
Gomes to the office. Gomes pointed out that it reflected
badly on him as a driver to confess that he did not know
that the tires on his bus were flat. Gomes pointed out
that his first priority was meeting his obligation under
the state school transportation contract and he also cau-
tioned Kukahiwa about using marijuana during working
hours.
As a result, Kukahiwa asked permission to hold a driv-
ers' meeting without the presence of supervisors. Gomes
promptly granted permission for this meeting and Gomes
agreed that this could be held in the shed where meet-
ings of drivers are normally conducted.
Kukahiwa and Kaneakua informed drivers on Decem-
ber 11 and 12 that a meeting was scheduled on the after-
noon of December 12. Kukahiwa on this occasion re-
viewed operating conditions on the buses and he voiced
his opinion that Gomes was buying bad parts for the
buses. He also emphasized to the drivers that if the bus
was not safe to drive the driver should park it and wait
for the problem to be resolved.
The subject of the union cards was not discussed.
Gomes heard from other drivers later that night that Ku-
kahiwa wanted to be the "whit" of the drivers.
The following day, December 13, Kukahiwa reported
to work at the normal time, 6:30 a.m. After the start of
loading the students at the school, he was approached by
driver Zumero who pointed out that his bus had defec-
tive brakes. He offered Kukahiwa a charter that he was
due to pick up; Kukahiwa declined this, but offered to
take Zumero's bus back to the yard while Zumero used
the bus of Kukahiwa to make the charter run.
Barbara Gomes, the wife of the president, was in the
office that morning and heard a third driver, Guerrero,
radio in that Zumero was experiencing difficulty with
the brakes on his bus. She immediately radioed to an-
other driver to pick up the charter. Guerrero also ra-
dioed in that Kukahiwa and Zumero were planning to
trade buses. She told Guerrero to instruct Kukahiwa and
Zumero not to swap buses because a bus had already
been dispatched and that Zumero should wait for a me-
chanic to arrive and check his bus.
Kukahiwa had been in the bus of Zumero preparing to
depart when he interpreted a movement by Zumero to
be a sign that the swap had been approved. He drove the
bus of Zumero back to the Sand Island yard. Zumero, as
well, drove the bus of Kukahiwa back to the Sand Island
yard and arrived some minutes after Kukahiwa did.
Gomes had heard the initial radio report of brake trou-
ble and immediately dispatched mechanic Abe Pauole to
check this. However, before Pauole could reach the bus
both Zumero and Kukahiwa had returned. Pauole tested
the brakes and found that the master cylinder was leak-
ing which caused the air pressure to drop considerably.
Gomes became upset over the risk that Kukahiwa had
taken by driving the bus with bad brakes and expressed
his frustration at this disregard of safety rules. Kukahiwa
followed Gomes into the office and was given the option
of resigning or being fired.
Gomes planned to drive the afternoon run of Ku-
kahiwa because he already had a shortage of drivers.
Kukahiwa asked if he could accompany Gomes on the
run so that they could talk and Gomes agreed; Ku-
kahiwa asked why he had been fired. Gomes referred to
the bus-swapping incident as well as the carrying of un-
authorized passengers by Kukahiwa. The latter then sug-
gested that he could help Respondent if he were made a
supervisor.
On the morning of December 13, Kukahiwa and Kan-
eakua went to the yard at Sand Island and confronted
Barbara Gomes. Kukahiwa asked if he had been fired
and Gomes told him to ask her husband. Ultimately Bar-
bara Gomes said it was for disobeying company rules
and harsh words were exchanged. Barbara Gomes told
Kukahiwa that she felt he had betrayed her and her hus-
band by asking them for loans and then turning around
and violating company rules. She asked them to leave
and they finally departed. Thereafter, Kukahiwa filed a
charge which became the basis of the complaint in this
matter.
On December 19, a meeting of drivers was held at the
Campbell facility. One of the drivers, Annie Ahoi, asked
Assistant Supervisor Iaea if Kukahiwa had been dis-
charged. Iaea responded in the affirmative and alleged
that it was for the unauthorized swapping of buses.
Sometime after this meeting Ahoi asked Iaea if the latter
knew that union organization was taking place. Iaea re-
plied in the affirmative, but added that she felt it was
none of her business. The precise date of this conversa-
tion is not certain but Respondent had received a notice
of the representation hearing on December 20.
Respondent held a Christmas party on December 21
and both Kukahiwa and Kaneakua went to the Sand
Island yard because Kukahiwa believed he was entitled
to attend the party and also wanted to pick up his last
paycheck. On this occasion Gomes told Kukahiwa that
he was given a $200 loan for the funeral expenses of a
child born to him and to Kaneakua. On this occasion
Kukahiwa again asked Gomes for the reasons for his ter-
mination, and she provided three; namely, failure to
check his bus, carrying unauthorized passengers, and the
bus-swapping incident of December 12.
B. The Organizing Attempt
On January 22 and 23, a consent election was held at
the Sand Island facility. On May 23, 1980, it was certi-
fied that no labor organization was the exclusive repre-
sentative of the drivers, mechanics, and washboys at this
facility. Gomes had consented to this election on Decem-
DON'S BUS COMPANY, INC.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 27 following the filing of a petition by Hawaii Team-
sters and Allied Workers Union, Local 996, herein called
the Union, on December 10, 1976; the date on which this
petition was received by the office is not known. A letter
dated December 10 concerning certification procedures
was sent to the Company, but the witnesses did not
recall when it was received.
Union activity first came into the picture in November
when two meetings were held, one at the beachhouse of
Annie Ahoi, and another at her mother's home. The first
meeting was held on November 8, and the second on
November 28. Cards were distributed at both meetings,
which Kukahiwa attended. It appears that Kukahiwa,
Kaneakua, and Ahoi all signed cards during this proce-
dure.
Kukahiwa and Kaneakua took cards to obtain signa-
tures from other drivers. It was agreed that nothing
would be said to management until enough cards were
obtained. It appears that these cards were distributed in
December but there was a conflict as to whether any
cards were handed out in November.
The record indicates that two meetings were held after
the petition for certification was filed and that one of
them at Waipahu definitely took place after Kukahiwa
had been terminated.
C. Discussion
Respondent contends that the General Counsel has not
shown that Gomes was aware of any union activity prior
to the discharge of Kukahiwa on December 13 and fur-
ther that there was no evidence that this prompted his
discharge. It urges and the evidence preponderates that
Kukahiwa was terminated for his failure to abide by the
safety and operational rules of Respondent.
Kukahiwa and Kaneakua were the only witnesses who
testified that Gomes stated that he was thinking of union-
izing and he referred to a friend named Harold DeCosta
at the meeting of the drivers on December 11. No other
witnesses were produced to corroborate this.
Respondent points out that to establish the knowledge
of Gomes of union activity one would have to assume
that the petition was not only filed on December 10 but
that it was mailed on December 10 and reached Re-
spondent the day after it was filed on December 11, and
that it was brought to the attention of Gomes on that
same day. It would then follow that Gomes, having read
the petition, immediately called DeCosta of the Team-
sters Union. Without this, the record is silent as to
Gomes learning of any union activity before the petition
was filed and brought to his attention.
The record warrants the finding and I so find that
Gomes convened a meeting on December 11 for a legiti-
mate business reason, namely, his concern over sandbag-
ging. All witnesses were in accord that the purpose of
the meeting was to warn the drivers that if sandbagging
continued the reduction in the number of charter oper-
ations was inevitable.
Respondent contends that the testimony of Kukahiwa
and Kaneakua is full of inconsistencies and contradictions
so as to seriously impair its credibility. Kaneakua has a
direct pecuniary interest in the outcome of this case, it is
contended, and is aware of potential backpay.
Kukahiwa and Kaneakua contradicted each other a
number of times during the hearing and their testimony
as to the distribution of authorization cards is badly jum-
bled. Kaneakua testified that cards were handed out
monthly. She testified that cards were handed out in De-
cember but denied that any were handed out in Novem-
ber.
It appears also from her testimony that cards were dis-
tributed only late in December, around Christmas, fol-
lowing the petition for certification filed on December
10. On the other hand, Kukahiwa testified that cards
were passed out during November and December with
the two of them working as a team; however, Kaneakua
was on maternity leave throughout October, November,
and December and would be at the yard only to drop off
and pick up Kukahiwa.
The cards of Kukahiwa and Kaneakua were intro-
duced in evidence and both were dated November 8.
The cards of Kukahiwa and Kaneakua were introduced
in evidence to show their presumable union activity and,
as stated, they are dated November 8.
To sum up, the General Counsel relies on the testimo-
ny of the Charging Party and his girlfriend to establish
that Gomes knew of union activity at Sand Island. The
testimony alleges that Gomes talked about union activity
at the December 11 meeting of the drivers. However, no
other drivers who were present were called to testify,
which I deem significant. Stated otherwise the record
does not establish to my satisfaction that Gomes knew of
union activity in this matter. In the ultimate, the record
will not support a finding that Respondent knew of the
involvement of Kukahiwa's union activity and dis-
charged him for this reason.
Even if Gomes was aware of the union petition when
he discharged Kukahiwa there is no link between the pe-
tition and Kukahiwa. Indeed, both Gomes and Kukahiwa
testified that their relationship was most amicable. They
had known each other for about 25 years, Gomes and his
wife had loaned money to Kukahiwa and Kaneakua and
it does not follow that a driver in this category was the
impetus behind the union organizing effort. Stated other-
wise, there is absolutely no evidence that Gomes may
have thought that Kukahiwa believed that union mem-
bership would have a salutary effect on his employment.
The General Counsel has not established on a prepon-
derance of the evidence hostility or discriminatory
motive for the discharge of Kukahiwa. Gomes did agree
to a consent election. The fact that Gomes testified that
he did know a Teamsters official, DeCosta, for many
years does not alter this picture. Indeed, Gomes further
admitted that by his own count eight or nine former
Teamsters were working for him.
I conclude the evidence warrants a finding that Ku-
kahiwa was discharged for legitimate business reasons. I
further find his discharge was compelled by his flagrant
disregard of well-known company policies. He did, with-
out authorization, swap buses with Zumero on Decem-
ber 13, and company rules required management approv-
al thereof.
The record warrants a finding that brake failure is a
paramount concern to Respondent. In addition, Gomes
DON'S BUS COMPANY, INC. 269
observed Kaneakua accompany Kukahiwa on his runs in
December, and Kukahiwa had been previously warned
about carrying unauthorized passengers, and in fact that
was one of the reasons for his prior termination at the
yard at Campbell.
The inability of Kukahiwa to check the tires on his
bus to ascertain if they were flat was another factor in
his discharge. Kukahiwa admitted that he knew this was
a part of the prechecking procedure. That Respondent
was not biased against Kukahiwa is demonstrated by the
fact that he had been previously discharged and reinstat-
ed less than 2 months before. See L'eggs Products Incor-
porated v. N.L.R.B., 619 F.2d 1337, 1341 (9th Cir. 1980).
It is the position of Respondent that it only had one
motive in discharging Kukahiwa, namely, his continual
violation of company rules, and draws attention to his
prior termination. Indeed, there is no allegation that his
first discharge in October was not warranted.
As for the allegation that Respondent engaged in con-
duct violative of Section 8(a)(l) of the Act, the General
Counsel called two witnesses, Ahoi and Gracioza, to tes-
tify as to discussion at a December 19 meeting of drivers.
Both are drivers at the Campbell yard. Ahoi contradict-
ed herself in testimony and testified inconsistently with
her pretrial affidavit. Moreover, the testimony of Gra-
cioza was spotty at best. He did not recall most of what
Ahoi testified to and testified in contradiction of Ahoi
numerous times. Iaea testified that no mention of the
Union was made at the December 19 meeting. She did
state that a few days thereafter she admitted to Ahoi that
she was aware of the pending petition, but did not want
to discuss it. I do not believe that the evidence herein
preponderates in favor of the position of the General
Counsel.
CONCLUSIONS OF LAW
1. Don's Bus Company, Inc., is an employer whose
operations affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
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
The complaint is dismissed in its entirety.
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 find-
ings, 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
DON'S BUS COMPANY, INC. _