Fairbanks Transit System, Inc.

National Labor Relations Board - Board Decisions

May 24, 1954

108 N.L.R.B. 958 (N.L.R.B. 1954)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipping , typist office, stenographer , and pricers No. 1 and No.
2, but excluding all other employees and supervisors as defined
in the Act.
[The Board dismissed the petition in Case No . 7-RD-169.]
[Text of Direction of Election 2 omitted from publication.]
=International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 486, AFL, intervened only to protect its contract interest. The
Teamsters' contract does not cover any of the employees here involved. We shall, therefore,
not place the Teamsters' name on the ballot.
FAIRBANKS TRANSIT SYSTEM, INC. and TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION,
LOCAL NO. 183, AFL. Case No. 19-CA-777. May 24, 1954
DECISION AND ORDER
On October 14, 1953, Trial Examiner Maurice M. Miller
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. He also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint
and recommended dismissal of those allegations. Thereafter,
the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
At the outset of the hearing the Respondent moved for a con-
tinuance of the hearing, on the ground that it had not yet been
served with a written bill of particulars on the complaint which
the Trial Examiner had ordered prior to the hearing, and
therefore had not been given a proper opportunity under the
Board's Rules to file an answer to the complaint. The bill
of particulars was then introduced in evidence. The Trial
Examiner then denied the motion for a continuance, subject
to the Respondent's right to plead suprise and renew its
motion in the light of the General Counsel's proof. The Trial
Examiner then invited and accepted an oral answer, and sub-
sequently during the General Counsel's proof a written answer
was offered by the Respondent and received. The Respondent
did not renew its motion for a continuance of the hearing.
108 NLRB No. 135.
FAIRBANKS TRANSIT SYSTEM. INC. 959
Section 102.20 of the Board ' s Rules and Regulations , Series
6, as amended , unequivocally requires that the Respondent
file its answer to the complaint within 10 days after service
upon the parties . Admittedly the Respondent here failed to
comply with this requirement , nor did it , as also provided
in the Rules, request of the Regional Director any extension
of time for such filing . Clearly, therefore, the Trial Examiner's
refusal to postpone the hearing to give the Respondent an
opportunity to file an answer was not in violation of the
written rules.
We think, however , in view of the last minute service of the
bill of particulars , that it would have been a better practice
to afford the Respondent a reasonable period of time in which
to file a response to matters set out in the bill of particulars.
In fact, the Respondent before the close of the hearing did
answer the complaint both orally and in writing . In any event,
the Trial Examiner did not finally deny extension of time but
offered the Respondent an opportunity to renew its motion in
the event , in the opinion of its counsel , the development of the
trial made this necessary. The Respondent instead chose
not to avail itself of this opportunity. It follows , therefore,
in view of all the circumstances , that the Respondent was not
prejudiced by the Trial Examiner ' s treatment of its motion.'
Accordingly, his ruling is affirmed.
ORDER
Upon the entire record in the case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , Fairbanks
Transit System , Inc., Fairbanks , Alaska, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees as to their union sympathies,
and threatening them with reprisals for such sympathies.
(b) Discouraging membership in the below -named or any other
labor organization , by the discharge of any of its employees, or
by discrimination in any other manner with respect to their
hire and tenure of employment , or any term or condition of their
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self organization , to form labor organizations , to join or assist
Teamsters , Chauffeurs, Warehousemen and Helpers Union,
Local No . 183, AFL, or any other labor organization, to
bargain collectively through representatives of their own free
choice , and to engage in other concerted activities for the
'See Chicopee Manufacturing Corporation of Georgia , 85 NLRB 1439 ; Standard Generator
Service Company of Missouri , Inc., 90 NLRB 790. See also International Longshoremen's
and Warehousemen's Union, et al., 90 NLRB 1021.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities , except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act,
as amended.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to Verla Bowen, Clare Russell, Wilfred Plumondore,
Alice Jean Brink, and Marcel Perez immediate and full re-
instatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges , in the manner set forth in the "Remedy " section
of the Intermediate Report.
(b) Make each of the employes named whole for any loss of
pay or other incidents of the employment relationship which he
or she may have suffered because of the discrimination herein
found , by the payment to each of a sum of money equal to
the amount each normally would have earned as wages between
the dates of their last employment by the Respondent, or the
date on which their discriminatory treatment , as found,
began, and the date of any unconditional offers of reinstatement
communicated to them , inthe manner set forth in the " Remedy"
section of the Intermediate Report, less their net earnings,
if any, during any such period.
(c) Upon request make available to the National Labor
Relations Board , or its agents , for examination and copying,
all payroll records, social - security payment records, time-
cards, personnel records and reports , and all other records
necessary for an analysis of the amount of back pay due in
accordance with this Order.
(d) Post at its places of business in Fairbanks, Alaska,
copies of the notice attached hereto as an appendix .' Copies
of the notice , to be furnished by the Regional Director of the
Nineteenth Region as the agent of the Board , should be posted
immediately upon their receipt , after being duly signed by a
representative of the Respondent . When posted , they should
remain posted for sixty ( 60) consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps should be
taken by the Respondent to insure that these notices are not
altered, defaced , or covered by any other material.
(e) File with the Regional Director of the Nineteenth Region,
as the agent of the Board , within ten (10 ) days of the date of
this Order , a statement in writing setting forth the manner
and form in which it has complied with this Order.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not herein found.
2In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing An Order."
FAIRBANKS TRANSIT SYSTEM, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
961
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL NOT interrogate our employees as to their
union sympathies , or threaten them with reprisals for such
sympathies.
WE WILL NOT discourage membership in Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local No.
183, AFL , or any other labor organization , by the discharge
of any of our employees, or by discrimination in any
other manner with respect to their hire or tenure of
employment, or any term or condition of their employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self - organization to form labor organizations, to
join or assist Teamsters , Chauffeurs, Warehousemen and
Helpers Union, Local No. 183, AFL, or any other labor
organization , to bargain collectively through represent-
atives of their own free choice, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
or all such activities , except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Verla Bowen, Clare Russell, Wilfred
Plumondore, Alice Jean Brink, and Marcel Perez imme-
diate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority
or other rights and privileges, and will make them whole
for any loss of pay suffered as a result of the discrimina-
tion practiced against them.
All of our employees are free to become, remain, or to
refrain from becoming or remaining , members in good standing
of any labor organization , except to the extent that this right
may be affected by an agreement in conformity with Section
8 (a) (3) of the Act, as amended.
FAIRBANKS TRANSIT SYSTEM, INC.,
Employer.
Dated ................ By....................................................
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of
posting , and must not be altered, defaced, or covered by any
other material.
339676 0 - 55 - 62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
After investigation of charges and amended charges duly filed by the international Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Local No. 183,
AFL, designated in this Intermediate Report as the Union , the General Counsel of the National
Labor Relations Board, in the name of the Board, caused the Regional Director of its Nine-
teenth Region , at Seattle , Washington, to issue a complaint on April 30, 1953, in which
Fairbanks Transit System , Inc. was named as the Respondent Employer . The complaint, as
originally issued , alleged that the Respondent Employer had engaged in and continues to
engage in unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat . 449, as amended
and reenacted by the Labor Management Relations Act, 1947, 61 Stat . 136, designated herein
as the Act . Copies of the charge , the amended charge , the complaint , and a notice of hearing
were duly served upon the Respondent and the Union previously named.
Thereafter , as noted in this report , the complaint was substantially amended . The Re-
spondent had previously been advised , informally , that the General Counsel had certain
possible amendments under consideration ; when the latter reached a decision , apparently,
that the complaint ought to be amended to include allegations with respect to a violation of
Section 8 (a) (5) by the firm , a revised complaint which embodied the amendments was
delivered to its counsel No question has been raised with respect to the service of the
amended complaint.
With respect to the unfair labor practices the complaint , as amended , alleged in substance
that ( 1) The Respondent , on or about certain specified dates, took action which affected the
terms and conditions of employment of seven employees (Verla Bowen , Clare Russell,
Wilfred Plumondore, Alice Jean Brink, Paul Boisvert, William Diewold, and Marcel Perez),
through discharge , layoff, curtailment , or demotion , ( 2) the Respondent has since refused to
reinstate and reemploy these individuals ; (3) the Respondent engaged in the conduct described,
with respect to these employees, because of their membership in the Union, their activity in
its behalf , and their concerted activity for the purposes of collective bargaining and mutual
aid or protection ; (4) the Respondent--on or about January 20 , 22, February 9, 10, 16, and
17, 1953, at various times between these dates, and at all times thereafter -- refused and has
continued to refuse to bargain collectively with the Union as the exclusive representative of
its employees in a unit appropriate for the purposes of a collective bargain, although the
Union has been , at all relevant times , the designated collective-bargaining representative of
a majority of the employees in such appropriate unit; (5) the Respondent interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in the statute by
the course of conduct set forth above , and by other acts and statements , and (6) the Re-
spondent ' s conduct , as described , involved unfair labor practices affecting commerce within
the meaning of the Act , as amended.
The Respondent 's answer with respect to the amended complaint , later duly filed, admitted
the jurisdictional allegations of the complaint . The status of the Union as a labor organiza-
tion , however, was denied . It was affirmatively alleged that the Union had "voluntarily
dismissed" a representation case previously filed by it with respect to the Respondent's
employees ; that it was not and is not the certified bargaining agent of any persons in the
employ of the Respondent ; and, therefore , that it was not and is not entitled to "bring" the
instant action. With respect to the employees named in the complaint , the Respondent ad-
mitted the terminations alleged but took the position that every termination had either been
voluntary or imposed for cause . The commission of unfair labor practices with respect to
the terminations was denied . With respect to its alleged refusal to bargain , the Respondent
admitted that the Board , in a previous Decision and Direction,of Election hereinafter to be
noted had defined a bargaining unit deemed appropriate for the purpose of a collective bar-
gain, but denied the allegation that the unit thus defined was, in fact, appropriate for the
stated purpose. The Union 's status as a majority representative was also denied. And,
consistently , the Respondent denied its alleged obligation under the law to bargain collec-
tively with the Union, on the ground that the organization had refused to permit an election
to be held pursuant to the Board ' s direction , previously noted, and was therefore estopped to
maintain, now, that it represents a majority of the employees or that it did represent a
majority at any relevant time. The Respondent, finally, denied that it had ever refused to
FAIRBANKS TRANSIT SYSTEM, INC. 963
bargain collectively with a "majority" of its employees. By way of affirmative defense, the
Respondent contended that the amended compliant ought to be dismissed since it did not state
facts sufficient to sustain the present action. It contended, also, that all issues with respect
to the alleged refusal to bargain had been resolved in the formal representation case pre-
sented to the Board before the issuance of the original complaint in this matter, and that all
such issues are now res judicata, since the Union "voluntarily withdrew" its petition after
the Board had ordered an election. The Union, it is claimed, became estopped, by reason of
its conduct, to allege or attempt to prove a refusal to bargain on the part of the Respondent
Employer
The case had originally been noted for hearing on May 22, 1953. Before that, however, the
Respondent filed a motion to make the complaint more definite and certain, and a motion to
dismiss. In due course these were referred to me as'a duly designated Trial Examiner for
disposition. The motion to make the complaint more definite and certain was granted in
part and denied in part. The other motion, which sought the complaint's dismissal because it
did not contain an allegation that the labor organization which filed the charges had compiled
with Section 9 (h) of the Act, as amended, was also denied--on the ground that the statute
does not require such compliance to be pleaded and proved as a condition precedent to the
exercise of the Board's jurisdiction. N. L. R. B, v Greensboro Coca Cola Bottling Co.,
180 F. 2d 840 (C. A. 4), N. L. R. B. v. Red Rock Co., et al., 187 F. 2d 76 (C. A. 5), cert.
denied 341 U. S. 950, Victor Products v. N. L. R. B., 208 F. 2d 834 (C. A. D. C.), and the
cases therein cited
In accordance with the notice already cited, a hearing was held before me at Fairbanks,
Alaska, on various dates between May 22 and May 29, 1953, both dates inclusive. The Gen-
eral Counsel and the Respondent were represented by attorneys, and the Union by its busi-
ness representative. All of the parties were afforded a full opportunity to participate, to be
heard, and to introduce evidence pertinent to the issues.
At the outset of the case the Respondent moved for a continuance, on the ground that no
written bill of particulars- -called for by my order on its motion to make the complaint
more definite and certain--had yet been served, and upon the further ground that no formal
answer had yet been filed. The Respondent contended that the case had not yet "come to
issue" and that it ought to be given 10 days after the service of an amended complaint or a
written bill of particulars within which to file its answer. (A written bill of particulars was
submitted to the Respondent's counsel during the course of the argument in question.) The
motion for a'continuance was denied, subject to the Respondent's right to plead surprise,
and to renew its request in the light of the General Counsel's proof. See Sections 102.20,
102.21, 102.22, and 102.28 of the Board's Rules and Regulations, Series 6, as amended. The
General Counsel raised no issue with respect to the Respondent's failure to file an answer
within 10 days after the service of the complaint , as required under Section 102. 20, or his
failure to request an extension of time within which to file such an answer, under Section
102.22 of the Rules and Regulations.
Its counsel also renewed the Respondent's objection to any consideration of the com-
plaints , based upon the General Counsel ' s failure to plead or prove the Union ' s compliance
with the requirements of Section 9 (h) of the statute. On the basis of the precedents cited in
my order denying the Respondent's earlier dismissal motion this objection was overruled. An
oral answer was invited and presented; subsequently, in the midst of the General Counsel's
presentation, a formal answer, prepared in conformity with the Board's rules, was offered
and received without objection At the close of the General Counsel's presentation a formally
amended complaint which raised a new issue--the Respondent's alleged refusal to bargain--
was offered and received, its allegations have been summarized elsewhere in this report.
The Respondent's answer to the amended complaint, previously noted, was filed without
objection; motions to strike certain affirmative defenses which it contained were then pre-
sented on behalf of the General Counsel, however. These motions were later withdrawn. A
motion on the part of the General Counsel's representative to conform the amended com-
plaint to the proof, with respect to insubstantial matters, was granted without objection.
At the close of the testimony each of the parties argued orally; their argument has been
embodied in the stenographic transcript. The Respondent's attorney reserved the right,
thereafter, to file a brief. In accordance with the reservation, such a brief has been filed.
No brief has been received, however, from the General Counsel's representative.
Upon the entire record in the case, and upon my observation of the witnesses, I make the
following:
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
A. Its involvement in commerce
The Respondent, Fairbanks Transit System, Inc., is a corporation with its principal office
at Anchorage, and a business office in Fairbanks, Alaska. During 1952 the Respondent was
and now is engaged in the operation of a transit system within and near the city of Fairbanks,
as such, it operates buses to provide public transportation and a number of buses to carry
school children. Its annual revenue, stipulated for the record, has approximated $ 190,000
per year. As a part of its operations the Respondent provides bus service and transportation
between the city of Fairbanks and two United States Army air bases, and other national
defense installations More than one-half of its annual revenue is derived from the fares
received for service between the city of Fairbanks and Ladd and Eielson Fields, the United
States Army air bases above-mentioned.
The Respondent has admitted that it is engaged in commerce and business activities which
affect commerce, within the meaning of those temrs as defined in the Act. Since its opera-
tions are confined to the Territory of Alaska, within which the Board's jurisdiction extends
to all enterprises without regard to the nature or extent of their operations,' I find that the
Board has jurisdiction, and that the assertion of its jurisdiction would effectuate the Act's
objectives. Cf. Hazel M. Cluff, d/b/a Columbus-Celina Coach Lines, 97 NLRB 777, and the
cases therein cited
B. Its organization and operation
1. The Respondent ' s relationship to Alaska Coachways
As previously noted, the Respondent operates a local bus transportation system in and
around the Fairbanks area . Its relationship to Alaska Coachways, Inc , an intercity bus
transportation company designated as Coachways in this report, was the subject of con-
siderable testimony, however, because of the significance of that relationship in connection
with the disposition of certain issues presented for determination, I have found the matter
worthy of elaboration
Most, if not all of the evidence upon which I have relied, in this connection, was provided
in the testimony of the Respondent's president, Russell Swank Under normal circumstances
such testimony would seem to be entitled to credence, since obviously it related to matters
within his knowledge, directly, as a responsible management official, and since it appeared
to have been offered, in the main, without challenge or contradiction Much of it, however,
was vague. President Swank conveyed the impression, in many respects, of a man without
any clear recollection of matters which most responsible businessmen would carry in the
very forefront of their thoughts As a witness, his language frequently lacked the clarity and
specificity which any trier-of-fact would expect to find in testimony offered as reliable. I
have bottomed my factual conclusions upon Swank's testimony, therefore, only insofar as I
have found it clear, specific, or consistent with normal business practices. In the absence
of these indicia of credibility, I have relied upon his testimony only when clarified or cor-
roborated by that of other witnesses.
Before April 1, 1952, on a date not set forth in the record, Swank and a group of associates
entered into a stock-purchase agreement with the original owners of Coachways, under its
terms, the issued capital stock of the firm was placed in escrow, subject to release as the
individual buyers involved in the sale completed the payments required 2 Thereafter, on or
about April 1st, the individuals associated in the stock-purchase agreement took over the
operation of Coachways. Swank was elected to the presidency of the enterprise. Lloyd
Mattingly became its vice president, H. H. Malcolm its secretary, and Ralph Cottis its
treasurer The men also served as the corporation's board of directors.
'Roy C. Kelley, 95 NLRB 6; Fairbanks Transit System, Inc. and Alaska Coachways, Inc.,
19-RC-1252, March 30, 1953(not reported in printed volumes of Board Decisions and Orders).
z Matanuska Valley Lines, Inc., another bus transportation enterprise in which Swank is
interested, participated in the agreement "to some extent" he testified; the exact nature of its
participation, however, has not been made clear.
FAIRBANKS TRANSIT SYSTEM, INC. 965
At the time, Coachways operated a Fairbanks city transit system, in addition to its inter-
city routes, its local operations were apparently limited, however, and involved a very small
number of runs.
Shortly after the new group took over the firm's active management, the Respondent was
incorporated to operate the Fairbanks local transit system--to which a number of routes
were added. Specifically, the Respondent took over the existing local routes, added others,
and proceeded to operate with physical equipment purchased from Matanuska Valley Lines,
Inc., for which it is still obligated, Swank testified, to the latter enterprise.
The Respondent has issued only a portion of its authorized capital stock to date. All of the
stock thus issued is held by individuals; and the record indicates that the actual ownership
of the Respondent is equally distributed among its officers and "possibly" a few other
individuals. None of the Respondent's issued stock, insofar as the record shows, is held by
Coachways as a corporate parent.
Russell Swank, the president of Coachways, holds a similar office with the Respondent.
From October 1; 1952, to March 1, 1953, George Hayden served as its vice president and
superintendent; his connection with the Company ended on or about that date, and his office
has not been filled Lloyd Mattingly, the vice president of Coachways, serves as the secre-
tary of the Respondent, and Ralph Cottis serves as its assistant secretary. Swank, the Re-
spondent's president, also serves as its treasurer. As in the case of Coachways, the officers
of the firm also function as its board of directors.
A comparison will readily show that Coachways and the Respondent function under common
officers, with one exception: H. H. Malcolm, the Coachways secretary, holds no office inthe
Respondent and, insofar as the record shows, owns no stock in the firm
There is some ambiguity with respect to the status of George Hayden, during his period
of service as the Respondent's vice president and superintendent. In February of 1953, when
the Board hearing in the representation case involvingthe Respondent's bus drivers was held,
Swank and Hayden declared themselves to be uncertain as to whether Hayden was or was not
then a Coachways officer Hayden insisted, at the time, that the matter could be settled only
by an inspection of the Coachways corporate records at Anchorage. After the Board hearing in
the representation matter, Swank and Hayden discussed the situation with an attorney; although
no conclusion could be reached as to whether Hayden had ever been officially listed as a Coach-
ways officer it was agreed , I find, that he shoujd never have been so listed, and that there ought
to be an official corporate minute to record the fact of his removal. As a witness in the present
case, Swank expressed uncertainty as to whether such an official minute had ever been
entered in Coachways' records, but declared himself to be of the opinion that Hayden had never
actually served as an officer of that firm although he might on occasion have represented
himself as one. Hayden was not available as a witness. In the light of the uncontradicted- -though
limited--information available, I find that Hayden was never designated, formally, as a member
of the Coachways management team, though he appears to have "acted" as its agent.
The record, in its totality, will not support any conclusion that the Respondent is a subsid-
iary or corporate alter ego of Coachways; in the light of the available evidence, however, it is
amply clear, and I find, that the affairs of the two corporations are handled by an interlocked
directorate and, in the main, by common officers
2. Its management
Throughout the winter of 1952--53, and duringtheperiod with which this case is specifically
concerned, President Swank generally spent "three or four" days in Fairbanks every week,
it was his practice, apparently, to fly in from Anchorage on a Tuesday or Wednesday and to
remain until the weekend. During the same period, as previously noted, George Hayden
served as the Respondent's superintendent. As such, I find, he was completely in charge of
the Fairbanks operation, in the absence of its president Robert A. O'Grady,s Hayden's immedi-
ate subordinate, functioned as the Respondent's operations manager
3O'Grady's testimony establishes, and I find, that he employed the Respondent's drivers,
supervised the work done in the Respondent's shop, undertook the necessary "paper work"
in connection with the Respondent's schoolbus operations, and checked on the work of the
drivers. President Swank testified that O'Grady "assumed" the title of operations manager;
whatever the facts may be with respect to his official designation, it would seem to be clear--
and, indeed, it is not really disputed-- that he functioned as a supervisor in the Fairbanks
operation, The record establishes that he was employed in that capacity throughout the
period with which this case is concerned and into the middle of March, 1953.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between January 25, 1953, and the 20th of April, Darrell Garrison was employed by the Re-
spondent as an instructor and driver-supervisor. As such, he assisted in the employment and
instruction of new drivers, scheduled the runs tobe taken by particular drivers and checked on
their performance, collected the far boxes every morning, checked to see that all of the Re-
spondent's commercial runs maintained set schedules, and "filled in" if a bus was late.
President Swank, who seemed reluctant to admit that anyone had been given supervisory
authority expressly, testified that Garrison had "assumed" the title of driver-supervisor; he
insisted that Garrison had exercised supervisory authority only after consultation with Hayden,
O'Grady, and William Knight, an individual whose status will be discussed elsewhere in this
report. Garrison testified that he had had the authority to discharge employees, Swank
insisted that he had only been authorized to do so after consultation. Whatever the facts in this
respect may have been, however, there would seem to be little basis in the record for dis-
agreement with the conclusion that Garrison functioned as a company supervisor I so find.
William Knight, a supervisor of Coachways' agents and other personnel, was sent to
Fairbanks in mid-January of 1953 by Swank to "inspect" the operations of the Respondent.
His testimony indicates uncertainty as to the date of his arrival; upon the entire record I find
that he arrived between the 12th and 16th of January. The 14th of the month appears to be the
most likely date on which to fix his arrival. Swank's testimony indicates, and I find, that he
had previously decided, while in Fairbanks in mid-December, 1952, that the "entire manage-
ment" of the Respondent would have to be changed. Later, in January, Swank sent Knight
to Fairbanks with instructions to review the situation, to determine whether he (Knight)
could "handle" it, and to determine the amount of help he would need. In the light of the
available evidence it would seem to be clear, and I find, that Knight came to Fairbanks, in
mid-January, as an authorized representative of the Respondent's president. After a stay
of approximately 5 days, Knight returned to Anchorage, on or about the 20th of January.
He stayed 1 day, I find, reported to Swank, and returned to Fairbanks at once.
Throughout this period, Knight appears to have remained on the Coachways payroll.
Although his services, as performed at Swank's direction, appear to have been rendered
exclusively in connection with the operation of the Respondent, the record shows that he re-
ceived his pay from Coachways until the 15th of February. As of that date, his records were
transferred.
The record with respect to his relationship to the rest of the Respondent's management is
not entirely clear. Knight, and every other witness who testified with respect to his status,
admitted that he had had no definite title, but the record establishes that he was generally
recognized as a supervisor, and that he exercised supervisory authority. Knight, as a witness,
claimed that his authority, even at the outset of his stay, had been superior to that of O'Grady
and Garrison, and substantially coordinate with that of Superintendent Hayden. The testimony
of President Swank, however, was quite vague. He admitted that Knight had become a member
of the Respondent's supervisory staff in the latter part of January, and that he'had been given
the authority, as such, to hire and discharge employees, and responsibly to direct their work.
He also testified, however, that Knight had functioned as the superior of O'Grady and Garrison
"to a degree ," then that he had had the authority to make " suggestions" only, and finally
that his authority had been coextensive with that of O'Grady and Garrison although he had had
"direct authority" of a "newer" nature. At another point, Swank testified that none of the
Respondent's minor supervisors had had the right to exercise complete authority in any
respect without consulting each of his associates "to a degree," and that none of them
could have effectuated final discharges or layoffs until the matter in issue had been brought
to his (Swank's) attention.
The Respondent's president, finally, testified that Hayden, O'Grady, Garrison and Knight
functioned as his managerial assistants, and that the authority of each was subject to his own,
as the firm's top official Insofar as the record will support any conclusions with respect
to the Respondent's managerial setup, then, it would seem to warrant an inference that the
Respondent, throughout the period with which this case is concerned, functioned under the
immediate supervision of a "committee" consisting of Hayden, O'Grady, Garrison, and
Knight-- a committee within which reciprocal relationships were apparently very poorly
defined, but which was responsible, as a group, to the Respondent's president I so find.
The General Counsel attempted to establish that Herman Montgomery and Ralph Fender,
two of the employees, also exercised supervisory authority The record, however, is barren
of evidence that Montgomery ever functioned as a supervisor. With respect to Fender, there
is some indication, in the testimony of Swank, that he "assumed" the authority of a driver
FAIRBANKS TRANSIT SYSTEM, INC. 967
supervisor on the night shift, but the only available evidence establishes that he was never
expressly granted the right to exercise any supervisory responsibility The Respondent's
personnel records indicate that Fender entered its employ on the 18th of February and his
activities as a de facto supervisor of drivers appear to have come to O'Grady's attention
in March. In my opinion, the record considered as a whole does not contain reliable, probative,
or substantial evidence that Fender functioned as a supervisor, with the knowledge or acqui-
escence of the others on the Respondent's management team, during the January-February
period with which this case is immediately concerned.
3. Its operations
At all material times the Respondent maintained and continues to maintain a central bus
terminal in the downtown area. Its garage and repair shop , however , are located in a converted
hangar at Weeks Field, a Fairbanks airport. The Respondent's terminal, I find, is marked
with a neon sign which bears the legend "Alaska Coachways" only, and Coachways buses,
as the record shows, use the terminal to load and unload passengers. No substantial evidence
is available, however, with respect to the utilizationby Coachways of the Respondent's garage
and shop facilities. The available evidence indicates that the Respondent owns 22 buses.
Throughout January and February of 1953, I find, it maintained service on 6 city or commercial
routes. These were served by 5 buses as follows:
Routes Service
South Cushman-University 2 routes - 1 bus
West Fairbanks-Hamilton Acres
& Greald [sic] 2 routes - 1 bus
Eielson Field 1 route - 1 bus
Ladd Field 1 route - 2 buses
The daily service on each of the city runs was maintained on a two-shift basis, each shift,
I find, lasted approximately 9 hours. The record establishes that the Respondent's city
drivers were paid by the trip and not by the hour, its shifts, therefore, were computed as
a certain number of trips, calculated to occupy a 9-hour working day, approximately, with
some variation dependent upon the amount of time required to complete each trip. Under
normal circumstances, then, the Respondent appears to have required 10 full-time city
drivers, 5 on each shift, and an indeterminate number of relief drivers, usually 2 or 3, to
replace its regular drivers on weekends, during their periods of absence, and at lunch
In addition to its city or commercial runs, the Respondent operated a number of schoolbuses
during the winter of 1952-1953, serving 11 routes Transportation was provided for local
schoolchildren to an elementary school and to the city's high school - each located approxi-
mately one-half mile from the Respondent' s garage. During the winter in question, these
schools maintained a double shift, morning sessions began at 8 and ended at 11:45 a. m.,
while the afternoon sessions ran from 12:45 to 4.45 p. m In order to provide service, under
the circumstances, the Respondent was required to operate buses on every one of the 11
school routes early in the morning and at midday, at the close of the afternoon session buses
were operated on 2 routes only. Three routes had been serviced at the outset of the school
year, but one had been discontinued.
The record is replete with assumptions and guesses as to the amount of time required to
provide the schoolbus service on various runs. The best evidence available, however, es-
tablishes that the buses utilized for the service usually left the Respondent' s garage at
various times between 6:45 and 7:15 a m. William Knight's testimony, although somewhat
confused at the outset, indicates that not more than 5 or 10 minutes were required to cover
the distance between the Respondent' s garage and either school, at permissible rates of speed,
and that a bus proceeding from one school to the other, and thence to the garage, at the end
of a morning run, would normally be due at the garage by 8:20 or 8:30 a. m I so find. On
their midday runs, the buses left the Respondent' s garage approximately at noon and returned
between 1 and 2:30 p. m. For the evening runs, previously noted, the buses were usually
required to leave at 5 p. in ; all of these runs were short, and the record indicates that the
buses would usually be back at the Respondent's garage by 6.15 p. m.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to its regular, full-time city drivers then, the Respondent, in order to meet its
responsibilities in connection with the transportation of schoolchildren, also employed a number
of men assigned , more or less regularly , to specific schoolbus runs Since that employment
could not, by its very nature, occupy them for a full day, some of the individuals with regular
schoolbus assignments appear to have worked elsewhere during their free time . Others
were employed by the Respondent as shop mechanics , when not engaged in the actual operation
of a schoolbus And the Respondent 's staff of regular full -time city drivers and regular part-
time schoolbus drivers appears to have been supplemented by a number of persons who worked
part - time irregularly , either as relief drivers on city runs , replacements for regular part-
time schoolbus drivers who might be temporarily absent or unavailable , and as schoolbus
drivers on various runs to which no particular employee had been assigned . Some of the Re-
spondent's drivers, as the record will show, were occasionally assigned to handle Coachways
runs; the record is not entirely clear, however, as to the methods by which such transfers
were effected, and Swank said they were due to "confusion" which he did not explain.
The record contains considerable testimony, principally that of the Respondent's president,
with respect to the manner in which the responsible management officials of the Company
selected employees for regular and irregular work . The procedure employed appears to have
changed on at least two occasions since the Respondent began operations. Much of the
testimony offered by President Swank in this connection impressed me as vague and marked
by internal inconsistencies. Such conclusions as Ihavebeen able to draw , therefore , are based
upon a synthesis of the testimony offered by him, in its entirety. I can only say that the factual
conclusions set forth in this report, with respect to the Respondent's policies in regard to the
employment of regular and "extra " employees , are based upon the most reasonable analysis
and interpretation of those policies possible under the circumstances.
As of May 1952, the Respondent maintained a "board" at its garage and repair shop which
listed , for the information of the staff, the employees assigned to regular commercial runs
and regular school bus routes. Additionally, it appears to have contained a list of the "extra"
individuals assigned, as irregular employees, to handle particular runs on any given date
I so find. President Swank testified, without contradiction, that any individuals who wished to
achieve steady work as drivers and desired "extra" work in the meantime had to request
such work, if responsible management officials thought that such individuals could be em-
ployed, they would be listed "from time to time" and would continue to appear on the posted
list--from time to time presumably--if they continued to be satisfied with the arrangement,
and if the management continued to be satisfied with their work. The testimony of the Re-
spondent ' s president implies that the listing of an "extra" for irregular assignments would
be discontinued if the individual reported that he was no longer interested in such work,
or if responsible management officials decided that he should no longer be called. I so find.
According to Swank, if a decision were made to drop an extra from consideration for em-
ployment, he would be so informed, orally--usually onthe first occasion after such a decision,
when he came to the garage to inquire about prospects for additional work.
Swank testified without contradiction , and I find , that assignments were posted on the board
in question, for the information of the employees, every day. If the management reached a
decision that a driver ought to betakenoff a regular run and transferred to another assignment,
appropriate notations would be made on the board for the employee involved to see.
According to Swank, the board was used to eliminate the need for personal contacts and
"conversation" in connection with assignments; in the event of any changes, an actual
"contact" would be needed, he said, only if there was a question as to what the individual
was supposed to do in his new assignment, or as to the length of time for which the new
assignment would prevail. By way of further explanation, Swank testified that if the Respondent
decided to "drop" an individual previously considered eligible and available for "extra"
work, his name would no longer be listed, when the individual involved became aware of the
fact that he was no longer being listed for such work he would be required to seek a personal
explanation from the management, if he wanted one. If the individual dropped had been on
a "regular" run, Swank indicated that the Respondent might do 1 of 2 things--it might drop
his name from the board entirely, in order to make sure that the individual involved came in
to consult with a supervisor , or it might transfer him to " extra" status with an irregular
4 The record is not clear, however, as to whether the board, on any given date, also bore
a list of the individuals considered by the management as eligible and available for irregular
assignments, who had entered bids for work but who had received no assignments that day.
FAIRBANKS TRANSIT SYSTEM, INC. 969
assignment , thus permitting him to continue at work , but on varied runs, in such a case.
Swank indicated , the individual involved would-be expected to consult a supervisor eventually,
and if he did not seek such consultation on his own initiative within a reasonable time, some
management official would seek him out in order to proffer an explanation
In 1952, at a time not set forth in the record , the Respondent discontinued the use of its
assignment board . Thereafter , the assignments were noted on lists maintained in the office
of the dispatcher at the Respondent ' s terminal Under these circumstances , Swank testified,
the only evidence that a particular individual had a fixed assignment for an indefinite period,
i.e. a "regular" assignment , lay in the fact that his name appeared regularly on the dis-
patcher ' s list The Respondent ' s president testified that the list was "checked" daily in order
to record minor changes in asssignments-- i.e., the replacement of a "regular" driver tem-
porarily by an " extra " driver.
Early in February 1953, Swank testified , Knight reestablished the assignment board noted
previously , detailed information with respect to the operation of the board since its rees-
tablishment , however , is not available Swank's testimony , which stands without contradiction,
indicates only that the Respondent never considered seniority a factor in its decisions with
respect to layoffs or staff assignments prior to February of 1953, and that the Respondent's
management does not consider seniority to be a " controlling" factor in connection with layoffs
at the present time. The Respondent ' s president insisted that personal hardship and other
factors are recognized and given weight in any determinations with respect to a layoff.
There is no available evidence to the contrary . To the extent that it may be material. I so
find.
IL THE LABOR ORGANIZATION INVOLVED
Robert W. Talbot , a union business agent , testified on behalf of the General Counsel, his
testimony establishes that the Union was, at all material times , and now is an organization
in which employees participate , and which existed and continues to exist for the purpose of
dealing with employers in regard to grievances , labor disputes , wages , rates of pay , hours of
work , and other conditions of employment . The organization , he declared , has negotiated
trade agreements with the Associated General Contractors in the heavy construction industry
and with a number of local establishments in Fairbanks . In the light of Talbot ' s undenied
testimony, which I found credible , I am satisfied that the Union is a labor organization , within
the meaning of that term as defined in Section 2 (5) of the Act , which admits employees of
the Respondent to membership . It is so found
The Respondent , in its answer , contended that the Union is not now and has never been
the certified bargaining agent of any persons in its employ , and it argued , therefore , that the
organization was not entitled to "bring" the charges which led to the issuance of the General
Counsel ' s complaint. But Section 10 (b) of the statute , which refers to charges as the means
by which unfair labor practice cases may be initiated , imposes no limitation with respect
to the manner in which charges may be filed , or the capacity of the "persons " entitled to file
them. Under Section 102.9 of the Board ' s Rules and Regulations , Series 6, as amended , unfair
labor practice charges may be filed by any person and that term , a$ defined in the Act,
may include one or more labor organizations. The inability of such an organization to establish
its status as a certified and exclusive bargaining representative would be immaterial.
I find the Respondent ' s contention to be without merit
The Respondent also contended that earlier the Union had voluntarily sought the dismissal
of the representation case it had initiated with respect to the Respondent ' s employees (as
noted elsewhere in this report ) and that its action in this respect had deprived it of the right
to file the charges which initiated the present case . The actions of the Union, thus summarized,
may well be of significance in connection with a decision , on the merits, as to the contentions
of the General Counsel ; for the reasons previously noted, however , I find that they do not
affect the Union's capacity to "bring " the instant charges. The Respondent ' s contrary con-
tention is rejected.
III. THE UNFAIR LABOR PRACTICES
A. The organizational campaign
Some time before January 1953, apparently , various busdrivers in the Respondent's employ
requested the Union to act as their representative . Early in the month , therefore, representa-
9 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives of the Union began to circulate applications for membership , and a petition authorizing
the Union to represent the employees , among the Respondent ' s busdrivers . On the evening
of January 15, 1953 , a meeting was held at the union hall, and a number of drivers, members
and nonmembers of the Union, signed a petition designating that organization as their repre-
sentative for the purpose of negotiating a collective bargain Thereafter , on January 20,
1953, the Union dispatched a letter in this connection. It had been addressed to Alaska
Coachways, Inc., at Fairbanks, Alaska, marked for the attention of" Mr. George Hayden,
Manager." Receipt of the letter was acknowledged on the 22nd of January. The letter was sent
by registered mail ; the return receipt shows that it was accepted , for Mr . George Hayden, by
the Respondent ' s bookkeeper . The letter referred to the fact that "a large majority" of the
busdrivers handling "Alaska Coachways ' Buses " in the Fairbanks area had registered their
desire to have the Union act as their agent for "bargaining" purposes . Hayden was advised
that the Union had the applications of the drivers on file, and had "registered their names"
with the Board . In conclusion , the letter stated that:
It is our desire that you contact this Local Union and give us the date and time you can
meet with us to discuss this matter . I might add that these people are protected by the
National Labor Relations Act from any disciplinary actions against them for wanting
this Union to represent them.
The letter was signed by Talbot as the Union' s business representative . No reply was ever
received.
On January 21, 1953 , the Union filed a petition with the Board's Regional Office , docketed
as 19-RC-1240, seeking certification as the exclusive bargaining agent of all busdrivers
in the employ of" Alaska Coachways, Inc." inthe Fairbanks area. Talbot insisted , as a witness,
that the Union had been misled as to the identity of the corporate employer of the local bus-
drivers, because the Respondent 's city terminal was designated with a sign which referred
to "Alaska Coachways " only, and because of the remarks of several employees with respect
to the corporate name which appeared on the employment application blanks they had executed
for the Respondent when hired . Early in February 1953, when a field examiner attached to the
Regional Office arrived to investigate the petition , the Union learned for the first time that the
drivers it sought to represent were in the employ of the Respondent A second petition was
immediately filed on February 2, 1953; it named the Respondent and Alaska Coachways, Inc.,
jointly, as the employers involved The case was docketed as 19-RC -1252 , and a request for
permission to withdraw 19-RC-1240 was filed by the Union on the 3rd of February.
A formal hearing on the second petition was held in Fairbanks on February 10, 1953, in the
evening. Thereafter , on February 18, 1953, an order permitting the withdrawal of Case No
19-RC-1240 was issued by the Board ' s Regional Director . In the meantime, on February 16,
1953--for reasons to be noted , if necessary , elsewhere in this report--the Union dispatched
a second letter with respect to its representation claims. It was addressed to "Fairbanks
City Transit System, Inc. and Alaska Coachways, Inc." and marked for the attention of Mr.
George Hayden. The record shows that Hayden received it, and acknowledged it on the 17th
The letter , signed by Talbot, read as follows:
In reference to my letter of January 20th., 1953, I stated at that time that I represented
a majority of the drivers and requested a meeting for the purpose of negotiation.
By this letter I re-affirm the Teamsters claimto represent the majority of the drivers
in the two Companies and that this majority has existed since January 20, 1953, and again
I request that the two Companies, Fairbanks City Transit System, Inc., and Alaska
Coachways, Inc., meet with me for the purpose of negotiating a contract for these em-
ployees.
No reply to this letter has ever been received by the Union. The explanations offered by
the Respondent with respect to its failure to reply will be noted , if necessary , elsewhere in
this report.
B. Interference, restraint, and coercion
1. The initial reaction to the Union
In January of 1953, at a management conference attended by Hayden, O'Grady, Garrison,
and Knight, someone reported, for the first time, that the Respondent's drivers had under-
FAIRBANKS TRANSIT SYSTEM. INC. 971
taken to have the Union represent and "bargain" for them One management representative,
not identified by name, stated that "they" didn't want the Union to represent the drivers.
According to Garrison's testimony with respect to this conference, which I credit, someone
observed that there would have been no occasion for the Union's organizational campaign if
the Respondent's officials had handled the situation properly, and that the drivers had become
"disgusted" and sought union representation only because of the absence of proper administra-
tion, driver training , and supervision
Thereafter, I find, the Union's campaign was the subject of discussion at several management
conferences Garrison, in credible testimony which has not been contradicted, described the
consensus reached in these conferences as follows: "They thought the best policy was to try
and eliminate the drivers organizing the union , and then and through better supervision
eliminate the problem " According to Garrison, Superintendent Hayden expressed the opinion
that if the Union did "get in" the Respondent would have to close its doors. I so find.
The Respondent objected to the receipt in evidence of testimony with respect to any conversa-
tion between supervisory employees not in the presence of rank-and-file workers, on the ground
that such conversations could not involve unfair labor practices and ought not to be received
to show the Respondent's "alleged" motivation for a course of conduct later followed. The
objections were overruled. Southeastern Pipe Line Company, 103NLRB 341, Talladega Cotton
Factory, Inc., 106 NLRB 295. That decision is hereby reaffirmed . Although nothing said in
these and other similar talks to be cited , could be said to involve illegal
interference , restraint , or coercion insofar as rank-and - file employees were concerned,
evidence with respect to them is clearly admissible to establish the existence of a plan or
intention to interfere with the organizational efforts of the Respondent ' s employees.
On various occasions after his arrival in fairbanks, Knight expressed his personal opinions
with respect to the Union quite freely to various rank-and-file employees. The available
material with respect to his remarks on some of these occasions is quite vague, and I have
based no findings upon such testimony. T. M. Spencer, for example, testified that Knight
spoke to him about the Union on or about the first of February, but he could only recall that
Knight had expressed himself as bitterly opposed to unions. Since there is no evidence that
Knight coupled his remarks with any threat of reprisal or force, or promise of benefit,
Spencer ' s testimony cannot serve as the basis for any unfair labor practice finding. Vernon
Rhodes, identified as the Respondent 's chief mechanic , testified that Knight, on one occasion,
had initiated a discussion of the Union in a dinner table conversation and that , when asked
why various employees had been laid off, Knight had stated in substance that before he was
through there would be "several changes" made. Since Rhodes identified the conversation as
one which took place before the 9th of February, when the earliest discharges with which this
case is concerned occurred , I have found his reference to antecedent layoffs vague , and despite
Knight ' s failure to deny the testimony, I have not relied upon it.
Early in February, however, approximately 1 week before the 10th of the month, Knight
accosted Paul Gillum , a driver , in the Respondent 's terminal Gillum's testimony , which has
not been denied and which I credit , establishes that Knight opened the conversation with a
question as to whether he knew anything about a meeting some of the drivers had had "about"
the Company When Gillum replied in the negative, I find , Knight observed that some of the
drivers were trying to organize , and that they had had a meeting down at the "hall" or some
other place. Knight said that he was certain he knew most of the employees who had been
there, he asked, however, if Gillum had been present. The employee replied in the negative,
again, and said that he had not heard of the meeting , he then asked, I find, what it was all
about . Knight repeated his observation that the menwere trying to organize , and Gillum asked
what he thought about it. The supervisor replied, I find, that it would not make things any
better , and added that "I know they are not going to organize ." He then asked if Gillum was
a union member and was informed that he had been one since 1951 Knight then concluded the
conversation , the record shows, with the observation that "the employees" had tried to organize
in Anchorage some years previously and had failed ; he added , I find, that they would fail in
Fairbanks or the Respondent would " fold up" its business.
The Respondent objected to Gillum's testimony , at one point , because the General Counsel,
having originally named him as adiscrimatorydischargee , had subsequently stricken his name
from the complaint ; it was argued that his testimony , therefore , could have no relevancy to
the issues remaining for decision . I found the contention deficient in merit . Obviously, the
removal of Gillum's name as an alleged discriminatory dischargee did not deprive him of tes-
timonial capacity. And so long as the Respondent is charged , in the complaint , with a course
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of conduct amounting to interference, restraint, and coercion with respect to its employees,
by means of interrogation with respect to their union activities and sympathies, Gillum's
testimony in regard to specific conversations with a supervisor or agent of management
would obviously be competent, relevant, and material.
On February 8, 1953, at the terminal snack bar, Knight asked Verla Bowen, another driver,
"What is this old_J hear about the Union?" Bowen professed ignorance. She was asked
if she favored the Union and replied, "Yes, 1001b." Knight then declared that if the Respondent
"went union" they would "close the bus doors"; he explained this observation, I find, with
a further statement that the firm could not afford unionization. Bowen's testimony with respect
to this conversation has not been denied, I found her generally to be a credible witness, and
credit her testimony in this connection.
2. The antiunion petition
Shortly before the 10th of February, on a date not specifically noted, Knight accosted
James O'Malley, a mechanic and part-time driver, and informed him that he was "getting
up" a petition to make it clear that the employees did not wish the Union to procede with its
campaign, he stated, I find, that he wanted the men to sign it. O'Malley asked what would happen
if he did not sign, his testimony establishes that Knight replied, in substance, that if he wished
to continue working for the Respondent he would have to sign It is so found.
On February 10, 1953, in the morning, Knight called O'Malley into the Respondent' s garage
office. Swank and Herman Montgomery were there. The former introduced O'Malley. Ac-
cording to O'Malley, whom I credit, Montgomery had a petition form in his hand He laid it
on the desk O'Malley signed Swank then informed the latter, I find, that Montgomery was a
new employee. He asked O'Malley if he would help Montgomery to take the petition around,
introduce him, and help him to get it signed. O'Malley replied however, I find, that he had to
go to the bank and would "try" when he returned. There is no indication that he ever assisted
Montgomery
The available evidence indicates that the petition, when O'Malley signed it, was on the desk
at which President Swank was seated. The employee testified that he read it and signed it
"voluntarily," under the circumstances indicated My conclusions as to whether the other
signers of the anti-union petition affixed their signatures voluntarily will be set forth elsewhere
in this report.
T M. Spencer - an employee whose testimony has not been denied, and whom I believe to
be credible, in the main - declared that Knight asked him, also, to sign the petition I so find.
During a conversation in the garage office, on a date particularized only as a "few days after
the 1st of February," Knight told Spencer that the document in question was not a petition "for"
the Union. Spencer informed the supervisor, however, that he was a union member, that he
favored unions, that he would not sign any petition "against" the Union and that he did not even
wish to see it. Spencer testified, credibly, that he saw Montgomery in the terminal later,
in possession of the petition, and thathe refused to sign it then, too. Knight, in the course of his
conversation with Spencer. I find, asked if Verla Bowen and Clare Russell, his fellow em-
ployees, had asked him to sign aprounionpetition. No direct reply appears to have been made.
Knight was merely advised that he (Spencer) belonged to the Carpenters' Union, and not to
the organization involved in this case, but that if the Union organized the enterprise, or called
a strike, he would abide by their "rules" in the matter.
Herman Montgomery appears to have been the most active proponent of the antiunion
petition to which reference has been made. It was addressed, in the form of a letter, to the
Regional Director of the Board, in regard to the pending representation matter, and read as
follows:
The undersigned, being employees of the Fairbanks Transit System, Inc., hereby
jointly and severally protest the continuation of any hearing in the above entitled matter
for the reason that the undersigned constitute a majority of the bus drivers employed
by the said company and they are not desirous of having any union representation,
whatever, although some of the undersigned may have possibly have signed the original
petition heretofore filed. The undersigned are fully satisfied with the working conditions
and wages being paid and are fully satisfied with their present relations with their
employer and feel that there is no need for any union representation to protect, such as
is being shown by the National Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, Local No 183, AF of L
FAIRBANKS TRANSIT SYSTEM, INC. 973
The petition bears the date of February 9, 1953, and Montgomery's name, written in pencil,
heads the list of those who signed it.
Montgomery, in fact, engaged in an active campaign to secure other signatures for the
petition. The testimony of Vernon Rhodes, for example, establishes that he was asked by
Montgomery, during working hours, to sign the petition, Montgomery, he reports, told him
that the Respondent was in a "hole," and that if the Union secured representation rights it
could not afford to run the city transit system Rhodes, I find, replied that he was a member
of an Operating Engineers local; Montgomery then withdrew the request for his signature.
Marcel Perez credibly testified that Montgomery approached him with the petition and asked
how he "felt' about the Union. Perez replied, I find, that he was a union member. Montgomery
made no request for his signature.
The record shows that he did request the signature of Wilfred Plumondore. The testimony
of the latter, which has not been contradicted, establishes that Montgomery told him, in the
course of their conversation, that, "Wewould think that it would better us in future work in the
winter time if we do not go union." I so find. Plumondore testified that he refused to sign the
petition. His name, however, does appear. And a comparison of the written signature on the
petition with sample signatures provided by Plumondore convinces me that he did sign it.
My conclusions in this respect have raised no problem of sufficient import to affect my
disposition of the present case on the merits, but they have raised an issue with respect to
Plumondore's credibility; since his testimony with respect to Montgomery's remarks is
consistent with the testimony given in this connection by other witnesses, however, and has
not been denied, I am convinced that Plumondore was telling the truth in regard to their con-
versation despite his refusal to acknowledge a signature which appears to be his I have,
therefore, so found.
William Diewold testified that Montgomery asked him, at one time, to sign the petition,
and that he refused, saying that he was a union member. According to Diewold,s whose tes-
timony in this respect I credit, Montgomery said that it would be wise to sign since, if the
Respondent "went union," he (Diewold) would not be able to come in and get a job with the
Respondent during the winter, but would have to be dispatched through the union hall Mont-
gomery observed, I find, that he (Montgomery) secured employment every winter, but that
if the Respondent "went union" the men would not be able to do it
The testimony of Paul Boisvert also establishes, I find, that he and Lane Hilsinger were
accosted by Montgomery at the terminal snack bar, and that they too were requested to sign
the petition. Montgomery, according to Boisvert, observed that "it might better our jobs
a little longer"; each of the employees signed the proffered document.
And the testimony of Alice Jean Brink, which I likewise credit, establishes that Montgomery
accosted her in the terminal during working hours, on the 10th of February, with a similar
request According to Brink, Montgomery said that he wanted it "signed" by 8 p m. that day.
Brink signed. Montgomery then inquired as to whether he ought to ask employee Donald Alder.
Brink replied, I find, that she didn't "know" whether he ought to do so. Montgomery then
observed that if the Union "got in" the Respondent would have no jobs for women; he called
Verla Bowen and Clare Russell "troublemakers" working for the Union, I find, and described
it as a "communist" organization.
Brink's testimony also involved a recital of the conversation she had previously had with
Knight, at the time of her employment. The record in this respect shows, without contradic-
tion, that Knight had asked her if she then belonged to the Union, or had ever belonged to it,
and that she had replied that she never belonged. Knight observed, according to the evidence,
that there had been trouble over the Union, and that if it insisted on trouble the Respondent
would "close the barn doors and go out of business" and would not run its buses He asked
Brink what she thought of the Union, and was told that she knew nothing about it and had no
opinion This testimony was not denied. Brink impressed me as an ingenuous and forth-
right witness; I have found her testimony worthy of credit.
5 The Respondent's counsel has attacked Diewold's credibility generally, on grounds referred
to elsewhere in this report. As Iproposeto note at an appropriate point, the attack on Diewold's
credibility with respect to the particular matter which elicited the contention is, in my opin-
ion, well founded. His testimony in regard to the conversation with Montgomery noted above,
however, has not been subjected to attack. Because of its consistency with the other credible
testimony in regard to Montgomery's activities set forth in this report, I believe it to be
worthy of credit, and so find.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the question posed in his conversation with Brink, Montgomery appears to have
solicited the signature of Donald Alder for his petition. Alder's testimony, which I credit,
establishes that: Montgomery approached him at work, while he (Alder) was in his bus and
about to leave the terminal; Montgomery said he had a petition declaring the employees to
be "perfectly content" with their jobs as they were and opposed to " interference" from the
Union; that he then asked for Alder' s signature ; Alder said he would have to think it over and
did not wish to sign at the time; Montgomery said it would have to be signed before 8 p. m.;
Alder then said he would get in touch with Montgomery later and asked what would happen if
he did not sign the petition; and that Montgomery told him, in words or substance, that he
didn't think much of his job if he didn't sign it. Alder eventually signed. He was, apparently,
the last to do so.
Alder also testified, credibly, that he overheard Montgomery in the terminal, during the
afternoon, ask John Jaskowski, another employee, if he would like to sign the petition.
Jaskowski, the record shows, asked "What if I don't sign it? ", and Montgomery replied,
I find, "that's the $ 64 question." According to Alder, Jaskowski refused to sign. The record
shows that his employment with the Respondent ended on February 11, 1953.
Paul Gillum's testimony establishes, finally, that Montgomery approached him in the
terminal at approximately 6 p. in. on the 9th of February, and asked, "How do you stand
in this Company-Union deal? " Gillum had just received a notice that he was laid off, I find,
and replied that he did not know. He informed Montgomery that he had been discharged or
laid off for a few days, and thought that his employee status would depend on the outcome of
the hearing to be held in connection with the Union's petition for certification. Montgomery
then said that he had nothing to worry about, and asked him to sign the petition. Gillum replied
that he would wait, since he had been laid off and was uncertain as to his situation. Later
that evening, I find, he again met Montgomery in the terminal. The latter suggested a drink;
Gillum replied that he had no money and Montgomery paid for the drinks.
Gillum's testimony, at this point, indicates that: Montgomery said he would see if he could
borrow some. money from the Respondent's president; the men returned to the terminal;
Swank gave Montgomery "about $ 100"; and Montgomery lent him part of this sum. This evi-
dence, insofar as it involves Montgomery, has not been denied; President Swank, however,
asserted vigorously that he had never given any money to Montgomery to lend or use in the
purchase of drinks. Since Gillums's testimony, as it stands, suggests that his knowledge with
respect to the conversation, if any, between Montgomery and Swank was indirect, I find it
insufficient to sustain a conclusion that President Swank subsidized Montgomery's effort to
win the support of Gillum for the antiunion petition. No such inference, therefore, will be
drawn.
Gillum signed the petition and returned to the Respondent's garage with Montgomery. There
he met Swank and Knight, I find, and announced that he had signed. The Respondent's president,
according to Gillum, then spoke to him of the advantages to be gained by "sticking with" the
Company. I so find. The record shows that Gillum asked Swank how long he would be out of
work; he was told that it would be for "a couple of days," although no reason, apparently,
was given. With this assurance, Gillum turned in his company equipment and took a trip to
Anchorage. The record establishes, without contradiction, that he rode free, on a Coachways
bus, at the order of President Swank.
After an absence of approximately 5 days he returned, but received no work assignment.
Gillum's testimony shows at this point, and I find, that he then questioned Swank, Garrison,
and Knight as tothe reason why there was no work for him. He was told, in words or substance,
that "this thing hasn't blown over yet." According to Gillum, he received no promises as to
when he would return to work, and was old only that it would be within the next week.
Gillum's further testimony, it should be noted, indicates that he did receive an assignment,
ultimately, after a period of unavailability due to illness. He was subsequently terminated
by the Respondent, under circumstances which suggest no unfair labor practice. Although
listed in the original complaint as a "discriminatory dischargee," Gillum's name was
stricken, on motion, while the hearing was in progress. I find no basis in the record for a
conclusion that his ultimate termination by the Respondent involved a statutory violation.
The Respondent has vigorously challenged the contention that Montgomery's course of
conduct, as outlined in this report, involved culpability attributable to his employers; counsel
argued, at considerably length, that Montgomery acted on his own responsibility, and in his
own behalf as an employee. It is further asserted that he was engaged , in any event, in the
exercise of a protected right to oppose the unionization of the Respondent's busdrivers,
FAIRBANKS TRANSIT SYSTEM, INC. 975
and to do so by the solicitation of signatures for a petition to forestall procedures calculated
to win certification for the Union as the exclusive rperesentative of these employees. I find
this contention to be without merit .6 The record , it is true , will not support any conclusion
that Montgomery was a supervisor , for whose conduct within the scope of his employment the
Respondent , under well -established rules, could be held responsible . in the light of the availa-
ble evidence , however, I am entirely satisfied that Montgomery functioned , in connection
with the circulation of the petition , as the Respondent 's agent--an-agent clearly endowed with
actual or apparent authority to engage in the course of conduct outlined in this report.
It may be noted, in passing , that the antiunion petition was carefully and formally phrased;
its language and sentence structure arenot those of everyday speech. Under the circumstances
there may well be a basis for an inference that the petition was prepared for circulation by
someone other than Montgomery . In the absence of any opportunities to observe and hear him
as a witness , however . I have refrained from reaching any conclusion that Montgomery was
not, in fact, the draftsman of the document in question.
Agency is a contractual relationship , derived from the mutual consent of a principal and an
agent that the agent shall act for the principal . (Restatement of the Law of Agency , Section
1, American Law Institute , 1933 .) And the burden of proof in matters involving an agency
relationship , it is true , has been held to rest upon the party who asserts that relationship,
both with respect to its existence , and with respect to the nature and extent of the agent's
authority . (Mechem , Outlines of Agency (3rd edition), Sections 106, 223 .) These burdens,
in my opinion , however , have been satisfied in this case --by credible and probative evidence,
not dependent in any way upon reported statements attributable to Montgomery , the alleged
agent. A principal 's consent with respect to an agency relationship , either by way of authoriza -
tion or ratification , may be manifested by conduct , and sometimes even by passive acqui-
escence, as well as by words . And an individual 's authority to act as an agent in a given manner
will be implied , therefore , whenever the conduct of the principal is such as to show that he
actually intended to confer such authority . (Restatement of the Law of Agency , Sections 1,15;
International Longshoremen 's and Warehousemen 's Union. C .I.O. (Sunset Line and Twine
Co.), 79 NLRB 1487, 1507 - 1509.) These rules are applicable in this case . Montgomery's
status as an agent , and the nature and extent of his authority , are fully established by the
credited testimony of Spencer as to Knight 's comments about the petition and the credited
testimony of O'Malley with regard to the circumstances under which he was requested to sign
the petition in the presence of Knight and Swank , the Respondent 's president.
Knight denied any contact or conversation with O 'Malley on the 10th , in the Respondent's
garage . So did President Swank. Each of the witnesses also denied awareness of any occasion
on which O 'Malley had been requested to sign the Montgomery petition . Swank , in particular,
although admitting his awareness of Montgomery 's activities in connection with the circulation
of the petition on or about the 10th of February , denied that he had been informed of the project
in advance . He insisted that he had never seen the petition , before its circulation or while it
was being circulated , and that Montgomery had never been ordered to circulate it by anyone
associated with the Respondent 's management ; additionally , he denied that he had ever "in-
structed " Montgomery to do what he could to forestall a successful effort on the part of the
Union to bargain for the employees , and insisted that he had never "asked " Montgomery to
do so . Swank testified that O'Malley had been laid off by the Respondent in March, both he and
Knight recalled an occasion, after the 10th of February , when Knight had "punched out"
O'Malley's shop timecard , because of the latter 's alleged failure to do it himself immediately
after the receipt of an assignment to handle a schoolbus run. Their testimony , if credited,
would indicate that O'Malley had resented Knight's action as a reflection upon his honesty,
or his ability to conduct himself in accordance with the Respondent 's rules; that he had
questioned Knight's action with considerable heat ; and thatSwank had had to admonish him with
respect to his responsibilities . The evidence was offered , presumably , to indicate a bias
against the Respondent on the part of O'Malley, which ought to militate against an acceptance
of his testimony as credible . O'Malley as a witness, however, appeared to be mild and soft
spoken, his testimony was given in a calm and dispassionate manner ; and he was not taxed
with bias in the course of cross-examination . I have found his testimony to be entirely worthy
6 Mathews Lumber Company , 96 NLRB 322 , 333-338; E . B. Law and Son , 92 NLRB 826,
enforced 192 F 2d 236 (C A. 10); Yale Filing Supply Co., 91 NLRB 1490; Union Twist Drill
Co., 88 NLRB 1361; Bibb Manufacturing Co , 82 NLRB 338; Macon Textiles , Inc., 80 NLRB
1525.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of credit. Inferences with respect to Montgomery's agency status may also be drawn from
President Swank's reaction to Gillum's announcement that he'd signed the antiunion petition.
I so find.
If his status as an agent of the Respondent may be taken as established , as I have found,
only one question remains: Did Montgomery engage in a course of conduct which involved
interrogation of his fellow employees with respect to their union sympathies , promises
of benefit, and threats of economic loss , contingent upon the outcome of the Union's bid for
representative status? Many witnesses so testified and Ihave so found . Montgomery , although
available , was not called upon as a witness . The Respondent's failure to call him, apparently,
was predicated upon an opinion that his status as an agent of the Company had not been es-
tablished, it would be unfair, therefore , to draw an inference adverse to the Respondent
merely from his failure to take the stand . Cf. N. L. R. B. v. The Ohio Calcium Co., 133
F. 2d 721, 727 (C. A. 6); The Cambria Clay Products Co., 106 NLRB 267. The fact remains,
however, that detailed testimony with respect to his conduct, as described , appears without
contradiction in the record. The testimony, though offered by various witnesses , is internally
consistent , and none of it was shaken or modified, in material respects , under cross-
examination. The witnesses who gave it, in fact, impressed me generally (unless otherwise
noted) as forthright and without guile . I have found them credible . In my opinion, Montgomery
made the various statements attributed to him, in words or substance , and the Respondent
must be considered responsible for his course of conduct, as described.
The "anti-union" petition circulated by him was, in fact , presented to the Board 's hearing
officer at the formal hearing on February 10, 1953, in case No . 19-RC-1252 , as a company
exhibit.
3. Other interference , restraint , and coercion
Without regard to the "anti -union" petition , the interest of the Respondent in the Union's
organizational campaign is revealed in a number of other incidents.
The testimony of employee O'Malley , for example , establishes that a list of the employees,
typewritten on the Respondent 's letterhead stationery with some indication of union affiliation
or a question mark after each name , was observed , shortly before the 10th of February, in the
Respondent 's vault. O'Malley 's glimpse of the list appears to have been fortuitous . It occurred
while he was in the vault on authorized business . According to his testimony , which I credit,
the list consisted of 12 or 14 names , of which he could recall his own and 5 others--those of
Paul Gillum, Lane Hilsinger , Paul Boisvert , William Diewold , and Verla Bowen . O'Malley
also testified , and I find , that he saw a similar list of employees on O'Grady's desk, that
list being written in pencil . According to O'Malley , O'Grady's list contained 5 or 6 names,
including his own, and an indication opposite each name as to the labor organization to which
the individual supposedly belonged . The record establishes that O'Malley saw O'Grady's
list also sometime before the 10th of February, and that he later informed O'Grady that he
(O'Malley) had been listed as a member of the wrong union ; O'Grady, I find , laughed and said
that he had been aware of O'Malley 's earlier membership in the local Operating Engineers
union, and that he had thought O 'Malley would still be a member of that organization . O'Malley,
according to his testimony , informed O 'Grady that he belonged to the Teamsters organization.
The operations manager , as a witness , confirmed O'Malley's testimony with respect to his
preparation of the pencil list, he could not recall , however, whether his list had ever been
copied or placed in the Respondent 's vault.
On or about February 10, 1953, after his ta'k with Montgomery, previously noted , employee
Plumundore was accosted by William Knight in a company restroom , and questioned as to
why he was wearing his union button . Plumundore 's testimony establishes , without contradic-
tion , that he said he had just paid his union dues , put his button on his hat , and forgotten to
remove it . Insofar as the record shows, the conversation then ended.
At or about the same time, I find , President Swank called Paul Boisvert into the firm's
garage office and questioned him as to whether he had signed a petition in the Union's behalf.
When Boisvert replied in the affirmative , Swank inquired , I find , as to why he had done so;
the employee reported that he was a union member, and that he had wished to be in good
standing with the organization ; to which Swank replied, I find , that his action was equivalent
to a voluntary relinquishment of his freedom of speech.
In the latter part of February , on a date not otherwise specified , Swank expressed opposition
to the Union in the presence of employee Spencer , and went on, I find , to ask the employee
FAIRBANKS TRANSIT SYSTEM, INC. 977
what he thought of the organization. Spencer made no reply. President Swank made no attempt
to deny the remarks and interrogation attributed' to him on either of the occasions cited; I
have credited the testimony of Boisvert and Spencer, as summarized above.
The record also establishes that O'Grady, on at least one occasion during the last week of
February and in the midst of a short period of suspension to which employee Marcel Perez
was subjected, as hereinafter to be noted, queried the latter as to "how the deal was coming
along with the Union." Perez, I find, said that he had not heard too much about the situation.
His testimony establishes, without contradiction by the supervisor, that O'Grady then asked
him what he thought about the Union's organizational activity--to which Perez, I find, replied
that he thought unionization would be good for the Respondent and the drivers. Insofar as
the record shows, the conversation then ended. I so find.
4. Conclusions
The reaction of the Respondent to the Union's organizational campaign as set forth in this
report reveals, beyond peradventure of doubt, the fixed intention of the firm's management
to deprive its employees of any opportunity to exercise, effectively, rights which the Act
guarantees. The variogs statements and acts attributable to the Company's management team,
a., already set forth, can only be characterized as part of a course of conduct which exceeded
every limitation established, under the statute and its authoritative interpretations, with respect
to efforts on the part of employers and others to discourage self-organizational activity. Much
of the evidence as to the conduct in issue attributed herein to President Swank, William Knight,
Montgomery, and, in a lesser degree, to Operations Manager O'Grady has not been denied.
As it stands, the record reveals an integrated and consistent campaign of interrogation designed
to elicit information with respect to the sympathies of the drivers with respect to the Union,
the preparation of lists designed to show the number and identity of the Union's supporters,
and the consistent repetition of a "threat" that the Respondent would be forced to suspend
operations or restrict its wintertime employment opportunities if the Union established its
right to recognition. In the light of the relationship revealed by the record between the
Respondent's campaign of interrogation and the other unfair labor practices herein found,
the questions addressed to its employees cannot, in my opinion, be dismissed as matters
of no consequence. They formed an integral part of a course of conduct clearly revelatory,
in its totality, of the Respondent's determined opposition to the Union. And the solicitation
of employee signatures in connection with the antiunion petition must also be construed,
in and of itself, as a forbidden form of interrogation with respect to employee attitudes,
equivalent to surveillance, and as a pressure tactic. Cf. Syracuse Color Press, Inc., 103
NLRB 377. When undertaken by an employee, at the instigation and with the active support
of his employer, the solicitation of such signatures, therefore, must be characterized as
an unfair labor practice. And I so find.
Even if it could be argued that the "mere" solicitation of signatures in connection with an
antiunion petition does not involve improper interference, restraint, or coercion, addressed
to employees, acceptance of the argument would confer no absolution upon the Respondent
in this case; the record establishes clearly, and I have found, that Montgomery's activities
in connection with the petition involved something more than the solicitation of a mere
expression of views, argument, or opinion with respect to the desirability of unionization.
A considerable number of the drivers and driver-mechanics in the employ of the Respondent
were interrogated generally with respect to their union membership. Several were told,
in effect, that winter employment opportunities with the Respondent would be more readily
available if the Union failed to win its bid for recognition, and that the success of the labor
organization might impel the Respondent to "close the bus doors" and suspend operations.
Montgomery's statements, which I have found attributable to the Respondent, certainly
exceeded the limits of "free speech" in an organizational context, as defined in Section 8
(c) of the statute.
Upon the record, as outlined, I find that the course of conduct attributable to the Re-
spondent by virtue of the activities of President Swank, William Knight, Montgomery, and
Operations Manager O'Grady, and each and every incident illustrative of such conduct
cited in this report, was calculated to interfere with, restrain, and coerce the Respondent's
employees in their exercise of rights statutorily guaranteed.
339676 0 - 55 - 63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The discharges
1. Verla Bowen and Clare Russell
The available records of the Respondent establish that Verla Bowen's employment began
on August 29, and that Clare Russell was employed on October 25, 1952 ; each appears to have
been employed exclusively as a driver . Except for certain incidents , set forth elsewhere in
this report, their employment appears to have been uneventful before the Union 's organiza-
tional campaign began.
Bowen 's testimony establishes , and I find, that her union membership dated from September
of 1949 , but that she had been inactive prior to January 1953 . She attended the first union
meeting for the Respondent 's drivers , however, which she dated on the 9th of January;
and as of the 15th of that month she signed a petition in support of the Union 's bid for repre-
sentative status . In the meantime according to her testimony , which has not been contradicted,
she discussed the Union with the Respondent 's other drivers . Russell was not in Alaska at
the time this case was heard , and no formal effort was made to secure his testimony. The
evidence offered by the other witnesses , however, establishes that he executed an application
for union membership on January 12, 1953 , and that he was admitted as a member on the 5th
of February. Bowen and the other witnesses described him, credibly , as an active union sup-
porter . I so find. Bowen 's conversation with Knight , on February 8, 1953 , in the course of
which she admitted her union adherence , has already been detailed in this report. It is clear,
and I find, that the Respondent 's management was aware of her position as a union sup-
porter.
Bowen worked her regular shift on the 9th of February . At approximately 3:10 p. m.,
in the terminal after a run , DispatcherO 'Delladvised her to look at the "trip" sheet prepared
for February 10, 1953 . She observed the words "laid off" written after her own name,
Russell 's, and that of Paul Gillum. The record establishes , and I find , that these words had
been added by Driver Supervisor Garrison , under circumstances to be detailed elsewhere
in this report. Bowen requested O'Dell to telephone the Respondent's garage , and she informed
Russell of his layoff. The latter advised her not to finish her runs . Bowen replied however,
I find, that she would do so , and she did. At the conclusion of her day 's work, I find, Bowen
met Russell at the terminal. The latter reported that he had queried Superintendent Hayden,
at the garage , as to the reason for the layoff , and that Hayden had said it was "probably"
because they had stolen money out of their fare boxes . At this point Garrison entered the
terminal and Russell asked, "What's this I hear about us stealing money from fare boxes";
Garrison replied, I find , that he did not think they were being laid off for that reason, but
thought the action had been taken because they had absued the Respondent 's equipment.
In this state of the record it is certainly inferable , and I do infer , that Hayden was not re-
sponsible , personally , for the termination of Bowen and Russell or the layoff of Gillum. When
Hayden arrived at the terminal , Russell informed him that he understood the layoffs had not
been made effective for stealing money . The superintendent expressed himself as pleased to
hear it; Russell then observed , "Well, I know the reason why; it is over union activities."
Bowen's testimony shows , and I find , that Hayden then acknowledged that the reason could
be the one stated, but that he could not "can" them for that reason because of the possibility
of unfair labor practice charges . According to Bowen , Hayden said that the layoffs had come as
a "surprise" to him , because he had always thought of her as his best driver . Additional
available evidence with respect to Bowen's qualifications will be discussed elsewhere in this
report.
Bowen received her "Notice of Termination " on February 10, 1953 . Although the record
is silent with respect to Russell 's notice , it is inferable , and I do infer, that he received it
simultaneously . Operations Manager O'Grady , as a rebuttal witness , testified credibly that
Bowen and Russell accosted him in the Respondent 's office and requested their notices.
O'Grady , I find, searched the Respondent 's vault, but could not locate them . The Respondent's
bookkeeper joined the search , but with similar lack of success, despite the fact that she had
typed them originally . Miss McClure, the bookkeeper , then called Knight who entered the
office , I find , passed Bowen and Russell, went into the vault , secured the notices , came out,
and laid them on an office desk. There is no evidence that he spoke . O'Grady handed the notices
to the dischargees . Bowen's notice as she received it, was dated on February 9, 1953; it
read as follows:
FAIRBANKS TRANSIT SYSTEM, INC. 979
TO WHOM IT MAY CONCERN:
The employment of Verla Mae Bowen, as Driver in the Driving Department, has been
terminated effective as of this date for the following reasons: Using Company gasoline
without authorization, failing to stop at regular Bus Stops. Date of hire was: August
29, 1952. Jobs have been Driver. Service has been Fair. Rehire - Yes (x) No --.
The notice was signed by W. G. Knight, who designated himself as a supervisor; it is certainly
inferable, therefore, and I do-infer, that the notice had been prepared at Knight's direction.
Operations Manager O'Grady denied that he or Garrison had instructed the bookkeeper
to make out the notice, and he testified that he was unaware of any occasion when Hayden had
ever prepared one.
The Company's copy of Bowen's termination notice, as submitted when this case was under
investigation, shows the reason for Bowen's termination as "Using company gasoline without
an authorization. Failing to stop at regular bus stops. Failing to collect fares." I am fully
satisfied, however, upon the entire record, that Bowen's alleged failure to collect fares, dis-
cussed elsewhere in this report, was not relied upon by the Respondent as a justification for
its action at the time of her termination, and that the language quoted was added to the
Company's copy of her termination notice as an afterthought.
On February 13, 1953, Bowen saw Garrison in the terminal and inquired as to the reason
why Knight's name appeared on her termination notice instead of his own. According to
Bowen, Garrison said, "I refused to sign it because it was over union activities." The
testimony in question has not been questioned or denied. Garrison's testimony, indeed, com-
plements and corroborates that of Bowen. According to the driver-supervisor, Knight had
referred to sometime previously to drivers whom he "wished to get rid of" because of their
interest in the Union. On the 9th of February, Garrison testified, Knight named Bowen, Russell,
and Gillum as the drivers he wished to lay off at the time; he instructed the driver-super-
visor, the record shows, to indicate their layoff on the "trip" sheet for the following day.
Garrison testified, credibly, that he had made no attempt, at the time, to determine the
reason for Knight 's instructions , since they had been given in a conversation at the terminal
snack bar, in the midst of a crowd; the driver-supervisor's testimony establishes, however,
that he later asked Knight to explain Bowen's discharge, and that Knight had commented in
reply that she was a union member. I so find.
Basically, it appears to be the Respondent's' contention that Bowen and Russell were not
discharged, but resigned. Knight, for instance, testified that he had instructed Garrison to
tell Bowen, Russell, and Gillum to report for a conference with respect to certain matters
arising in connection with their work, and that Bowen and Russell never reported in conformity
with this request. Knight denied that he had ordered Bowen's termination and insisted that she
had left voluntarily. His testimony is to the effect that Bookkeeper McClure informed him
that Bowen and Russell had checked in their company equipment and requested termination
slips, in the absence of any prior clearance with him. According to Knight:
I went ahead and had no other alternative, with the exception of making out a termination
slip which I thought would cover the fee [field?1 or what I would want to terminate them
for.
The record reveals no attempt on the part of Knight to explain why termination notices would
have to be prepared in such a fashion, instead of being written to show that Bowen and Russell
had resigned after being called in for a conference. Such a statement with respect to the
reason for their termination would certainly have been simpler and less calculated to raise
later questions if true. I have concluded that Knight's testimony in this connection lacks any
basis in fact.
Insofar as the record shows, thenotices given to Bowen and Russell are the only ones Knight
ever executed in person. His testimony, however, was to the effect that he only signed the
notices and that Bowen and Russell received them from the Respondent's bookkeeper with
their final checks. I have already found, upon a preponderance of the credible evidence, to
the contrary.
Knight, as a witness insisted that he had been unaware of the fact that Garrison had failed
to follow his instructions with respect to the orders to be given Bowen, Russell, and Gillum,
until a date 10 days later, approximately. As of that time, he reports, he had business in
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terminal and was questioned by the dispatcher as to the reason for the terminations.
Knight insisted, as a witness, that he then told the dispatcher he had not terminated these
employees of his own accord, and that he had not planned to terminate them but merely to
interview them and "straighten them out" with respect to their mistakes on the job. Knight's
testimony, if credited, would indicate that he continued to check, and that he learned "bit
by bit" that Garrison had not followed his instructions, and that the termination of Bowen and
Russell could have been due to the fact that the driver-supervisor had exceeded his authority.
Questioned further, Knight declared, however, that he had done nothing, after becoming
"aware" of the facts, to clear up the situation for Bowen and Russell. In that connection,
he declared, "There was nothing else I could do unless they would have come in to me
personally." This version of the events with which we are now concerned is completely
incompatible with the credible testimony, to which I have previously referred, that Knight
saw Bowen and Russell in the Respondent's office when their termination notices were
located and delivered.
I have found Knight's version of the circumstances under which Bowen and Russell were
separated from the Respondent's employ entirely unworthy of credit. As a witness Knight
was not impressive. His responses, both in direct and cross-examination, were given with
considerable hesitation, on many occasions they were vague. The language he used in connec-
tion with much of his testimony gave every indication of a studied effort to avoid simple,
direct responses, and to achieve an imprecise or generalized formulation which would permit
inferences favorable to the Respondent's position. Wherever his testimony is inconsistent
with that of any other witnesses I found to be generally credible, Knight's version of events
has been rejected. Such is the case here. His testimony with respect to the instructions
given to Garrison is entirely inconsistent with the evidence of the driver-supervisor. And
his testimony that he had had no opportunity to speak to Bowen or Russell at the time of
their termination, or to accomplish his "alleged" original purpose, finds direct contradiction
in the testimony of Operations Manager O'Grady as a rebuttal witness. Garrison and O'Grady
impressed me, generally, as credible. They testified in a precise, forthright manner, and
without apparent rancor, despite the fact that they were no longer in the Respondent's employ
and their testimony is consistent with that of the other witnesses offered on behalf of the
General Counsel.
Paul Gillum, for example, testified that: Bowen had informed hum, on the 9th of February
in the presence of Hayden and Garrison, management officials, that he, Russell, and she had
been discharged, Hayden had confirmed the information; Garrison had invited him to check
at the Respondent's office to see if he was discharged; he had gone to the Respondent's
office; and he had been told by Knight that he would not be discharged but would be laid off
for a few days, until after the forthcoming representation hearing under Board auspices.
Knight made no attempt to deny Gillum's testimony. I have found it credible. It corroborates
that of Garrison to the effect that Knight intended to "lay off" all three of the employees
in question, and that he had had no intention whatever to utilize any "conference time for a
discussion with respect to their work."
Upon the entire record, I am entirely satisfied that Bowen and Russell were terminated
involuntarily. The Respondent's apparent contention that their termination resulted from a
deliberate failure on the part of Garrison to follow Knight's instructions, or, alternatively,
that they resigned in order to avoid any need to report for a conference, is rejected.
One question, then, remains: Were Bowen and Russelldischarged for valid reasons connec-
ted with their employment, or were the reasons cited on behalf of the Respondent mere
pretexts, offered to cloak an intention on the part of the Respondent's management to dispense
with their services, in pursuit of a forbidden objective?
With respect to Bowen, it may be noted, at the outset, that her ability as a driver appears
to be conceded. Employee T. M. Spencer testified to her reputation as a "very good" driver,
and Operations Manager O'Grady declared, as a witness, that "Bowen was probably one of
the best drivers we had in the city." This testimony has not been challenged, insofar as her
driving ability is concerned, by any of the Respondent's officials or employee witnesses.
In connection with the allegation that she had used company gasoline without authorization,
Bowen testified as follows: She owned and used a jeep. For some time, during her employment,
the Company's "wrecker"--used to push or haul disabled buses--was not in usable condition;
this condition prevailed, at least, throughout most of the winter. In November of 1952,
therefore, the Respondent's garage crew used Bowen's jeep without her permission, on a
number of occasions, to push or pull stalled buses. Early in December, Bowen's testimony
FAIRBANKS TRANSIT SYSTEM , INC. 981
shows, Vernon Rhodes, then the Respondent 's "shop supervisor " or chief mechanic , requested
her to grant permission for the use of the jeep in place of the Company 's wrecker; Bowen
agreed, she reports, conditioned upon an agreement that the garage mechanics would replace
all of the gasoline used and repair any damage caused by company use . According to Bowen,
Rhodes agreed to this condition.
The testimony of Rhodes , in the main , corroborates that of Bowen . He reports , without
contradiction , that he had conferred with Operations Manager O 'Grady, and that he had
been given general authority to do whatever was necessary in the performance of his functions
as a chief mechanic . I find Bowen 's testimony -- as corroborated by that of Rhodes, to be
credible . The garage mechanics never did replace Bowen 's gasoline. In the latter part of
January, on a date not otherwise set forth in the record , Bowen attempted to start her jeep
and found herself unable to do so, for lack of fuel . When she questioned Rhodes as to why the
gasoline used that day had not been replaced , he replied , her testimony shows , that he had
been busy at the time ; he advised Bowen to go ahead, however , and put "some gas" in her
car. Bowen 's testimony shows that she put in a gallon , drove to the Respondent 's pump,
and started to put in 10 gallons . While so engaged , Bowen was observed by Knight , who rode
by. Nothing was said . Bowen subsequently signed for the amount of gasoline she had taken,
and an amount sufficient to pay for it was taken out of her paycheck on the 5th of February.
Parenthetically , it may be noted that Bowen 's testimony, on the point now at issue , is consist-
ent with her statement on the matter to the Employment Security Commission of Alaska,
in connection with a claim for unemployment compensation filed after her termination. The
statement in question was made on March 6 , 1953. The Respondent made no effort to contro-
vert Bowen's version of the "gasoline" incident , as complemented and corroborated by the
testimony of Rhodes ; Knight 's testimony only indicates that he observed Bowen, from a
distance , filling the gasoline tank of her car at the company pump . In this posture of the
record , I find no justification for a conclusion that Bowen was guilty of misconduct sufficiently
serious to warrant discharge or even any justification for a conclusion that the Respondent's
management reasonably believed her to be guilty of misconduct.
With respect to the assertion that Bowen failed to stop at regular bus stops, the Respondent
offered no corroborative evidence . Bowen testified credibly , and I find , that she had never been
criticized by Garrison or O'Grady on the grounds now cited to justify her dismissal. The
record shows , indeed, that her work was complimented ; O'Grady, she credibly reports,
told het on several occasions (a) that he considered her his best driver, and (b) that the
Respondent could always depend on her because she was always on time and never absented
herself from work . This testimony on the part of Bowen was corroborated by O'Grady. He
declared , as a witness , that complaints with respect to any of the Respondent 's drivers
were brought to him or to the terminal dispatchers ; if a serious complaint arose , the dispatcher
was supposed to relay it to the operations manager or Superintendent Hayden. O'Grady testified
categorically that he had never received any complaint of a failure on Bowen's part to make
the regular bus stops on her run . Driver-supervisor Garrison too, as a witness , denied the
receipt of any customer complaints about Bowen's "failure" to make her regularly scheduled
stops . In the light of the entire record , and after due consideration of the limited and general
testimony offered on behalf of the Respondent in this connection , I am fully satisfied that the
available evidence with respect to Bowen's alleged failure to make her regular bus stops is
insufficient to overcome the other evidence in the record in support of the General Counsel's
complaint.
With respect to the allegation that Bowen failed to collect bus fares, it should be noted at
the outset that such a statement does not appear on her original notice of termination. Nor
does such a contention appear to have been made by the Respondent in contesting Bowen's
unemployment compensation claim .(The report of the Employment Security Commission's
local office interviewer indicates that the Respondent's formal protest "shows discharge
for use of gas and failure to make stops.")Bowen , as a witness , admitted that she gave free
rides to the other drivers and employees of the Respondent ; she cbntended however that such
conduct on the part of drivers was authorized , and her contention has not been denied. Bowen
admitted that she also gave rides to the wives of drivers when they were in the company
of their husbands, but she could not recall any free rides given to members of the general
public . The only testimony available in that connection is to be found in the testimony of
employee Donna Carmichael , which has not been denied , that Bowen, on at least one occasion,
permitted her own mother to ride the bus without paying a fare . To the extent that Bowen's
fare policy , with respect to the wives of other drivers and her own mother , may have exceeded
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her authority or recognized company practice, it might conceivably have been considered
subject to censure and possible discipline. There is nothing in the record, however, to suggest
that any responsible officials of the Respondent were aware of it at the time of her termination,
or, if aware of it, that they considered it sufficiently significant to mention at the time.
I find that her conduct in this connection played no part in Knight's decision to dispense
with her services.7
Operations Manager O'Grady and Driver-Supervisor Garrison, however, testified cate-
gorically that Bowen's termination was motivated by her interest in the Union. It occurred
1 day after she had made her position as a union supporter clear to William Knight, and 1
day before the Board's formal hearing in connection with the Union's representation petition.
It was coupled with the discharge or temporary suspension of 2 other union supporters.
After it became effective Garrison, while still in the Respondent's employ, advised her explic-
itly, in response to a question, that her interest in the Union had motivated the Respondent's
decision to dispense with her services. On these facts, the General Counsel would certainly
seem to have- made out something more than a prima facie case that Bowen's termination
involved an unfair labor practice. And due consideration of all the available evidence with
respect to the reasons cited by the Respondent to justify and explain its action has convinced
me that the allegations upon which it has chosen to rely have no basis in fact, and that the
Respondent's management had no reasonable grounds, even, for a belief that they were true,
at the time of Bowen's termination.
As previously noted, Clare Russell, laid off with Bowen on the 9th of February, was not
available to testify. The Respondent's records establish that he had been employed on October
25, 1952, as a driver. His detailed employment history is not available, but the testimony of
T. M. Spencer, a "parts man" and part-time driver, establishes that he was reputed to be
a very good driver. I so find. Spencer, whose opportunities for observation have not been
questioned, expressed the opinion that Russell had been one of the best drivers in the Com-
pany's employ; he declared that Russell had been courteous, and that the Respondent's
riders had liked him.
Russell's conversation with Superintendent Hayden and Verla Bowen, on the 9th of Feb-
ruary, has already been detailed. It certainly suggests an awareness, on the part of Hayden,
with respect to Russell's interest in the Union. And Knight, of course, appears to have been
fully cognizant of it, as his comments to Garrison in regard to the incident show. Upon
the entire record, I find that the management of the Respondent was fully aware of the
fact that Russell was a union supporter.
The record shows that he received his termination notice, as did Bowen, in the Respondent's
office on the 10th, after William Knight had located it. I so find.
President Swank, as previously noted, testified that Russell and Bowen were merely
suspended temporarily, on the 9th of February, with orders to see William Knight "for
some conversations about some actions thathad goneon--their conduct as delivers"; according
to Swank, Russell misunderstood the orders and "assumed" that he was discharged. The
testimony of the Respondent's president in tins connection, however, continues as follows:
..and it was not all his fault either. Actually he did get terminated and paid off, although
there were many reasons for his being laid off, and it was accidental, somewhat ac-
cidental, that it was done at that time.
On the merits, then, the testimony of the Respondent's president would seem to indicate
that Russell's termination had been bottomed upon several complaints. Swank testified, for
example, that Russell during his period of employment had been involved in three collision
accidents, all of them allegedly due to his own negligence. The uncontradicted testimony
of the Respondent's president shows that Company's policy called for a close study of any
driver's accident record after his involvement in three accidents, in order to determine if
his employment as a driver should be allowed to continue. And there would seem to be
no reason to doubt this general assertion. It has been accepted as true. The accidents in
question appear to have been discussed with Russell; Swank testified, by way of hearsay, that
"they said" Russell had expressed his willingness to pay for the damage involved in any
7See e. g. N L. R. B v, Quest-Shon Mark Brassiere Co., 185,F. 2d 285 (C. A. 2), cert,
denied 342 U. S. 812; N. L. R. B v. Tennessee Valley Broadcasting Co., 192 F. 2d 82 (C.
A. 5).
FAIRBANKS TRANSIT SYSTEM , INC. 983
accidents attributable to his negligence . Although Swank's testimony in this connection has not
been denied , its character as hearsay is apparent , and, would appear to require that it not
be accepted as probative . In Russell 's case however , Swank admitted , the accidents were not
sufficiently serious to require his removal as a driver , although he was "observed " there-
after.
The Respondent 's president then testified that while Russell 's work was under scrutiny,
it was noted that he had difficulty in maintaining his schedule , that he "invariably " missed
his last scheduled run, that he drove without a fare box , and that he permitted passengers to
ride free.
Swank testified that Russell was requested to report to Knight for "instruction " in regard
to these matters , and, in regard to the importance of stopping at the Respondent's regular
bus stops , although his derelictions in the latter respect , if any, were not detailed for the
record . As in the case of Bowen, the Respondent 's president contended that Russell never
reported for the scheduled conference , and that he reported to the Respondent 's office
instead to request his termination notice . The Respondent 's copy of Russell 's termination
notice was never offered in evidence ; in the absence of any testimony by Russell , therefore,
the record provides no objective indication as to the reasons cited, at the time, to justify
the Respondent 's action.
The stated version of the circumstances under which Russell 's termination became
effective , allegedly as a resignation , has already been rejected . The only issue presented
for determination with respect to Russell 's layoff or discharge , in my opinion , is the issue
implicit in the Respondent 's contention that his work as a driver was legitimately subject
to criticism.
President Swank's testimony , in this connection , appears to have been bottomed , in the main,
upon the reports he received as a top management official from the subordinates immediately
responsible to him for the operation of the Company . Because his testimony on the merits,
with respect to Russell's discharge , reveals the infirmities of vagueness and generality pre-
viously noted , and because of its hearsay character , I do not believe that it should be accepted
as probative. Although I have summarized it, as a statement of the Respondent's position,
it should not be considered reliable evidence , in my opinion , as to the reasons why Russell's
continued employment might have been open to question.
Knight , the only witness for the Respondent even superficially qualified to testify on the
basis of personal knowledge , reported that Russell had handled his equipment in a nervous
manner , as if he were a man under tension; he was described as "jumpy , jerky" and quick-
tempered with passengers . He also declared that it was Russell's habit to reach the terminal
ahead of schedule , park his coach , and sit at the terminal coffeecounter for at least 10
minutes after his scheduled departure time.
In cross-examination , Knight could not name any passengers harassed by Russell, and
proved unable to provide any circumstantial details in support of his accusation. When
questioned with respect to Russell 's alleged failures to depart on schedule Knight provided
no real support for his assertions . He did describe an incident in the terminal , allegedly
seen and heard by him , in the course of which a passenger apparently queried Russell as to
his scheduled departure time and was allegedly told that his bus had been scheduled to leave
5 minutes before . The passenger is reported to have urged immediate departure, to which,
it is alleged , Russell replied , " I don't care whether I go or not." Questioned further with
respect to the incident , however, Knight admitted that he had overheard it in January, imme-
diately after his arrival from Anchorage ; he admitted that he had never questioned Russell,
at the time , with respect to his motives in thus addressing passengers , and that he had never
criticized Russell for such conduct.
At one point , during the General Counsel 's presentation , the Respondent indicated an intent
to adduce evidence that: after his discharge Russell attempted suicide for a reason apparently
unrelated to the instant case, he left Alaska after his hospital recovery ; and he might cur-
rently be under arrest in Oregon, pursuant to an Alaskan warrant issued after the attempted
suicide. The Respondent contended , apparently , that evidence in support of these assertions
would be relevant to establish that Russell had been an unstable employee, and that such
evidence might also affect his possible right to reinstatement with back pay. The line was
foreclosed as irrelevant and calculated to introduce extraneous issues. As outlined , however,
it certainly suggests , inferentially , that the contentions of the Respondent with respect to
Russell may have been derived after the event , in substantial part , from the information now
available with respect to his conduct after the layoff or discharge in issue.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operations Manager O'Grady , as a witness for the General Counsel , admitted that he had had
occasion to criticize Russell for carelessness ; he identified the accidents mentioned above
as occurring in November . December , and January --the last one having occurred approxi-
mately 2 weeks before Russell 's separation . According to the operations manager, Russell
was responsible for$300-$ 400 worth of body damage to his bus; no personal injuries, however,
appear to have been involved.
O'Grady described the weather throughout the period in issue as cold; the roads appear to
have been surfaced with packed snow or ice. At the time of his first accident, Russell's bus
appears to have had a heater but no defroster . Although O'Grady testified that it "probably"
had frost shields , his testimony on the point was not positive . As a witness , the operations
manager indicated that drivers occasionally had to scrape frost off their bus windows by hand
because of the moisture inside . Although he insisted that it was possible to drive buses
in Fairbanks during the winter without an accident, O'Grady testified , without contradiction,
that frosted windows could contribute to accidents and that accidents were more common in
the wintertime . Some "excuse " for Russell 's accidents would seem to be inferable from this
testimony , certainly.
The operations manager reported no complaints received to the effect that Russell ran off
schedule , and declared categorically that he had never criticized him (Russell ) on that
ground. In this connection , also, Bowen 's credible testimony establishes that Superintendent
Hayden , in his last conversation with Russell and the other dischargees , declared that he
(Hayden) had spoken to Marcel Perez a few days earlier about the projected transfer of
Russell to the Respondent 's Eielson Field run, because of the way he handled his equip-
ment.
In this posture of the record , I am not satisfied that the Respondent has adduced sufficient
reliable and probative evidence to overcome that offered in support of the General Counsel's
contention. 8 Although Russell appears to have been involved in some accidents, and may have
had other difficulties in the operation of his bus , these would appear to have been excusable
or, at least, explainable . No evidence has been adduced to establish that the Respondent was
sufficiently exercised about them to consider Russell 's discharge at the time. As a witness,
President Swank specifically deprecated their significance , standing alone, as a basis for
Russell 's discharge. And there is no indication that anything occurred immediately prior to
the 9th of February reasonably calculated to persuade the Respondent that his employment
would have to be terminated for cause.
There is ample evidence , however , which I have found to be credible , that Russell was
dismissed because of his identification with the Union 's organizational campaign . Operations
Manager O 'Grady and Driver-Supervisor Garrison so testified . And in the light of their
testimony , the timing of the Respondent 's action acquires particular significance . Russell,
who never signed Montgomery 's antiunion petition, was dismissed in conjunction with the
dismissal of Bowen, 1 day before the formal hearing at which the petition was presented
in an attempt to defeat the Union 's bid for certification . Although the precise rationale which
may have motivated the Respondent 's action is nowhere spelled out in the record , there would
seem to be justification for an inference that William Knight , at least, intended to reduce the
number of union supporters on the Respondent's payroll, as of the date on which the hearing
was scheduled , to a minimum . Paul Gillum, one of the principal union adherents , was advised,
even after he had signed the antiunion petition , that he was being temporarily "laid off"
until some unspecified date after the hearing ended . In the light of all the circumstances,
the Respondent 's intention to discriminate against Russell , with respect to his employment
tenure and the terms and conditions of his employment, is clear.
Upon the entire record , I find that Verla Bowen and Clare Russell were terminated invol-
untarily by the Respondent , on February 9 , 1953 , to discourage union membership and to prevent
the unionization of the Respondent 's employeees . By its actions in this connection, the
Respondent interfered with , restrained , and coerced its employees in the exercise of rights
guaranteed them under the Act. I so find.
8 The fact that Russell was not within the jurisdiction, and did not testify personally , cannot
affect this conclusion, when the evidence offered by the General Counsel includes the testimony
of witnesses , with direct knowledge of the pertinent facts , who were available for direct,
and cross - examination. Textile Machine Works , Inc., 96 NLRB 1333, 1335.
FAIRBANKS TRANSIT SYSTEM, INC. 985
Wilfred Plumondore
Wilfred Plumondore 's employment as a driver began on January 13 , 1953 . He was, as the
record shows , already a union member , but appears to have executed a redesignation of the
Union as his representative , during its organizational campaign.
His conversation with Montgomery , on or about the 10th of February , has already been
noted . Additionally , it appears and I find that William Knight at about the same time , 2 weeks
before Plumondore 's termination , accosted him in a restroom and asked him why he was
wearing a union button . Plumondore 'sundeniedand credible testimony establishes that he said
he had just paid his uniondues and put the button on his hat and that he had forgotten to remove
it.
On February 24, 1953 , Plumondore completed one-half of his shift . After lunch , when he
reported to resume work , he was accosted by Garrison . The driver -supervisor declared--in
words or substance--that " I hate to tell you this , I would rather go home than tell you this.
I am going to have to let you go because your pants aren't pressed, your shoes are not shined,
and you missed a gear in the terminal. " Plumondore indicated a desire to go home, and to
return the next day with his changer and other company equipment, but Garrison declared that
he would accompany him to the Company 's garage and collect the changer at once . Plumondore
acquiesced . His testimony , which I credit, establishes that Garrison , in the course of the
trip, expressed the hope that he (Plumondore) would not blame Hayden , O'Grady, or the driver-
supervisor for his situation , or hold any "hard feelings " against them.
Plumondore received a "Notice of Termination" executed by Garrison on the 25th of
February . It indicates that Plumondore 's employment was terminated on February 24,
1953, because he "quit, " that his services had been "fair ," but that he would not be eligible
for rehire . Garrison 's testimony substantially corroborates that of Plumondore . It varies
in one respect only; Garrison insists that he suggested Plumondore resign , and that Plumon-
dore accepted the suggestion . The employee , as a witness , admitted that he "quit" but in-
sisted that he did so after being told of his discharge, he testified categorically that Gar-
rison's language indicated an intention to terminate his employment and not merely to
subject him to a disciplinary layoff or suspension for the reasons cited . Upon the entire
record and particularly in the light of the collateral circumstances involved , as previously
noted and to be noted in this report, I am satisfied that Plumondore 's termination was in-
voluntary , regardless of the particular language which the driver-supervisor may have used.
The testimony of Garrison , which I credit in this connection , establishes that he undertook
the course of action cited because Knight had instructed him to do so. When pressed for
details, Garrison reported that Swank , O'Grady, Knight , and he were at the terminal snack
bar when Knight instructed him that it was his job to let Plumondore go, citing the grounds
of complaint to which reference has already been made; the driver -supervisor also testified
credibly that Knight , at a previous meeting held "probably " on the same day , had told him
that Plumondore would have to "go" because of his union activities . As witnesses , President
Swank and Knight made no attempt to deny Garrison 's testimony about these conversations.
Since Garrison impressed me as a credible witness, I have accepted his recitals in this
connection.
The record embodies considerable testimony with respect to the merit of the "complaint"
about Plumondore's appearance and conduct . The weather, at the time , was dry and cold;
Plumondore appears to have been wearing his winter clothes --heavy shoes , trousers, and a
heavy shirt . His shoes , of white felt with a rough finish, were admittedly soiled, Plumondore
testified credibly that the roughness of their finish made them difficult to clean . The condition
of his trousers , at the time , was not made clear ; Plumondore admitted that they were press-
able but insisted that he had tried to keep them pressed . Garrison , as a witness , used the
phrase "not too bad" when asked to describe Plumondore 's appearance , despite any possible
inference that his shoes might have been unavoidably soiled or his trousers unavoidably
unpressed . And the driver -supervisor and O'Grady , when questioned , concurred expressly
in Plumondore 's testimony that he was never criticised for poor appearance or lack of care
in the maintenance of his shoes and trousers . Plumondore insisted, without contradiction,
that his appearance on the 24th of February was no better or worse than it had been at other
times.
With respect to the contention that he had clashed his bus gears , Plumondore admitted
that his bus had had an improperly adjusted gearshift , and that it had been difficult for him
to get into first gear except by a complicated manipulation , he acknowledged that he had
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"missed" a gearshift on several occasions but denied, without contradiction, that he had
ever been criticized as a result. Phimondore testified, indeed, with inferential or explicit
corroboration by both Garrison and O'Grady, that he had been referred to as a "fairly good
driver" and one of the best the Respondent had; his testimony also indicates, and I find, that
Swank, Hayden, and Knight never discussed the quality of his work with him. Plumondore also
testified, again without contradiction, that he had complained to the Respondent's mechanics
about the defective gearshift on his bus, and that he had filled out an appropriate report that
explained the difficulty, but said that the gear was never repaired.
Garrison's testimony, in this connection, establishes that he heard Plumondore clash gears
at one time or another; in thelightof his experience, however, the driver-supervisor testified
that he did not consider such incidents serious offenses, that "anybody" might clash gears
once in a while, and that he had not been aware of any incident involving the clashing of gears
immediately prior to Plumondore's termination.
Taken as a whole, the evidence to which reference has been made would certainly seem to
justify an inference that Plumondore was terminated involuntarily, superficially for certain
stated reasons, but primarily as a reprisal for his interest in the Union and its organizational
activities. And the evidence offered on behalfofthe Respondent, indeed, would seem to furnish
little, if any, ground on which to challenge such a conclusion.
Knight, when questioned specifically with regard to Plumondore's termination, testified only
that (a) he had been transferred from one run to another, utilizing a different type of bus, and
had had a "little trouble" getting used to the operation of his new coach; and (b) he had
appeared to be "sloppily dressed" at times. Knight's testimony also indicates that in mid-
January, shortly after Piumondore's hire, he had ridden the employee's bus and observed that
(a) Plumondore had received three 1-dollar fares which he had not deposited in the Respond-
ent's fare box pursuant to rule, and (b) Plumondore, without any reason to be aware of his
identity, had permitted him to make the trip in question without charge. Knight, as previously
noted, did not impress me as a reliable witness. But even if his testimony in regard to these
January incidents could be credited, it would seem to be entirely clear that Plumondore was
not, in fact, discharged for the reasons cited; Knight himself testified that his only conclusion,
at the time, was that Plumondore had not been properly trained with respect to the scope
and significance of the Respondent's rules.
President Swank testified that a general program to improve the neatness and cleanliness
of the Respondent's drivers had been initiated in January and February; the Respondent's
objective had been explained to the drivers; and the program was still in effect. Swank insisted
that the program was being policed and.that the Respondent's management had been instructed
to check the appearance of the drivers periodically. He admitted, however, that a driver's
failure to maintain proper dress and a neat appearance, under the program , would only result
in a warning or discipline; when queried as to the nature of the appropriate discipline, Swank
testified that "it might not let him drive until they get their appearance improved"[ sici.
(Garrison, as a witness, stated without equivocation that he would not have discharged Plumon-
dore for the reasons cited in this report, in the absence of Knight's instructions.) Plumondore
testified categorically, however, and I find, that he was not told by Garrison that he could
continue to drive if his pants were pressed and his shoes were shined, and no disciplinary
layoff appears to have been mentioned.
The Respondent argues that it had a right to insist that its employees be "neat and clean"
on the job. The point is well taken; it could even be argued that the firm's management had
a right to select Plumondore for discharge in order to emphasize its rules or policy in that
respect. But the motivation for his selection is the all-important factor. If he was selected
discriminatorily, because of his adherence to the Union, the Respondent's action must be
characterized as an unfair labor practice.
Upon the entire record I am satisfied that the reasons cited m Plumondore for his discharge,
or the strong "suggestion" that he resign, were pretexts, and that he was actually terminated
involuntarily because of his union membership and activities. Cf. N. L. R. B. v. Whitin
Machine Works, 204 F. 2d. 883 (C. A. 1). The Respondent's action, thus, involved discrimina-
tion in connection with his employment tenure to discourage union membership, and inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act.
I so find.
3. Alice Jean Brink
The Respondent's records establish that Alice Jean Brink joined its staff as a driver on
February 11, 1953. Credible testimony indicates that she was in training for a period of
FAIRBANKS TRANSIT SYSTEM , INC. 987
approximately 5 days before her designation as a paid employee . Garrison , the driver -super-
visor, was responsible for her training . As a witness , Garrison declared that he had not con-
sidered Brink a capable driver; he expressed the opinion that she should never have been
hired and that it would have taken a training period of greater duration than usual to make her
a "satisfactory " employee . The driver -supervisor also testified , credibly , that Knight's
assignment of Brink to a city run as a paid employee , on the 11th , was made effective before
she had completed the training program he believed she would require.
Before the receipt of her regular assignment , Brink had a conversation with Knight about
the Union ; the substance of that conversation has been set forth elsewhere in this report, and
need not be repeated, Her encounter with Montgomery , which occurred 1 day before her
assignment in the course of his efforts to secure employee signatures for the antiunion
petition , has also been summarized previously . The record shows that Brink signed an applica-
tion for union membership on the date of her conversation with Montgomery ; but there is
nothing in the evidence to indicate whether she did it before or after their talk.
Brink drove a bus , thereafter , for approximately 2 weeks . On or about February 23, 1953,
I find , she was accosted by Knight , who inquired as to who she was "running around" with,
at the time . Brink testified that she had been " running around" with Clare Russell and that
their association had been a matter of general knowledge . When Brink observed that he knew
the answer to his own question , Knight, I find, asked why she was " running around" with
Russell ; Brink responded , shortly, that she liked his company . Knight then observed, I find,
that Russell only wanted toget information about the Respondent ; and Brink replied , apparently
with some asperity , that the identity of the person she "ran around " with was her own busi-
ness , and that she had a mind of her own . At this point the conversation ended.
On February 25, 1953, at the outset of her shift , Brink arrived at work to find employee
Donna Carmichael in the driver 's seat of her bus. Carmichael reported that she had been
assigned to "take out " the bus . Brink, I find, immediately queried the Respondent's dispatcher;
but the latter professed ignorance as to the reason for the change . Brink then telephoned Super-
intendent Hayden, who advised her thathe would speak to her at the terminal ; he requested her
to wait . The record establishes , however , that Operations Manager O'Grady came instead; he
informed her , I find, that she was not discharged , but that she had been laid off because the
Respondent had too many drivers; Brink was specifically informed by O'Grady that her layoff
had not been occasioned by anything that she had done.
That evening , as Brink's undenied and credible testimony shows, she accosted Garrison
at the terminal coffeecounter and inquired as to the "real" reason for her discharge . Garrison
replied, I find , that the firm 's surplusage of drivers provided one reason , but that other
reasons had contributed to the Respondent 's decision ; he declined a request to be more specific.
Under the circumstances , Brink has made no effort to seek reemployment and she has not
been recalled by any official of the firm.
Neither Garrison nor O'Grady , as witnesses, made any attempt to deny the statements
attributed to them by this discharged employee , which would seem to indicate that she had
been laid off in connection with a reduction in force . The Respondent , however , made no
effort to justify its termination of Brink on the ground apparently cited to her i. e., that it
had too many drivers available for assignment . If such a contention had been made, I would
have been constrained to find it deficient in merit. Garrison , as a witness , testified without
challenge that the Respondent , in fact , had had no surplusage of drivers at the time of Brink's
dismissal.
The Respondent , instead , now seeks to justify its action with respect to Brink solely on
the ground of her lack of skill . Swank and Knight , as witnesses , implied that they had quickly
reached the conclusion , after Brink was employed , that she would never be a capable driver.
Swank, for example, testified to "reports " that she had run her bus off the road "on a couple
of occasions "; and Brink as a witness , did admit involvement in one "accident " for which
she had been responsible. When questioned as to why she had been retained at all, Swank
testified that he and Garrison had been of the opinion that she had spent a good deal of time
in an attempt to acquire the requisite skill, and that she had been anxious to learn; for these
reasons, he said , it had been decided to "carry on" with her. Swank 's final summation of the
situation , in the record , reads as follows:
And actually , she just coasted along rather than working , at our free will to let her
work for probably a week or so before she was terminated.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In evaluating the Respondent's contention, thus presented, as to the reason for Brink's
termination, I find itsignificant thatthe record contains no evidence whatever that her inability
to acquire or exercise optimum skill was ever called to her attention before, or at the time
of, her discharge. No compelling reason for this omission has even been suggested. Brink
testified positively that no member of the management had ever informed her that her work
was subject to criticism; there is no evidence to the contrary, and I so find. The Board,
pursuant to well-established precedents, has frequently inferred discriminatory motivation
in connection with a discharge when the evidence shows that the conduct relied upon to
justify it had previously been condoned, and when it establishes as it does here that the
reasons urged at the hearing as a justification differ from those given at the time of the
discharge.9
If her deficiencies were as noticeable as the record would seem to show, it is difficult
to understand why the Respondent, as a matter of "free will" chose to entrust its equipment,
and the safety of its passengers, to her as long as it did; in the light of the entire record,
which reveals that approximately nine drivers, including some with considerable experience
and skill, were terminated just before and during her period of employment, it is certainly
inferable that the Respondent assigned her to work without adequate training and retained
her as an employee because her services were needed, however unsatisfactory they might be.
I so find.
In this connection, however, a conclusion with respect to the motivation behind Brink's
dismissal need not restuponinferences.Asopposedto the Respondent's contention, Garrison's
credible testimony establishes that he participated in several management conferences at
which the relationship between Brink and Clare Russell was a subject of discussion. Although
he could not recall the dates on which these conferences occurred, Garrison identified Knight
and O'Grady as the other persons present; and his testimony has not been denied. Garrison
testified that Russell, after his discharge, had been seen around the terminal in Brink's
company; and in the conferences to which the driver-supervisor referred the comment was
made, his testimony shows, that Russell was trying to persuade Brink to join the Union, and
that it might be better to let Brink go if her association with the earlier dischargee could
not be terminated. This testimony by Garrison has not been denied. It complements and
corroborates that of Brink with respect to Knight's final conversation with her.
In the light of this testimony, and upon the entire record, I am satisfied that the immediate
cause of Brink's discharge was not her unsatisfactory record as a driver or her demonstrated
lack of skill, but, rather, her unwillingness to eschew the company of Russell, a discharged
union supporter, at the Respondent's request. Dismissal for such reasons involves an unfair
labor practice. Minimax Stores, 95 NLRB 129, 138-140.
The Respondent's contention that Brink's employment record had demonstrated that she
would never develop into a capable driver has not been seriously disputed. Her lack of skill,
alone, might have provided "ample reason" for her termination; if the record revealed
nothing else, there would certainly be no reason to conclude that her discharge had involved
illegal discrimination. But the evidence on the point offered by the Respondent, even though
corroborated in the testimony of Garrison and O'Grady, does not stand in isolation, a pre-
ponderance of the available evidence in the record considered as a whole establishes, in my
opinion, that the cited reason, regardless of its apparent validity, was not the one relied upon
in connection with the Respondent's decision to dispense with her services. Cf. N. L. R. B.
v. Whitin Machine Works, 204 F. 2d 883 (C. A. 1). As the Ninth Circuit Court of Appeals has
also recently pointed out:
It is well settled that an employer violates § 8 (a) (3) by discharging or refusing to
reinstate an inefficient employee if the employer's reason for so doing is not the em-
ployee's inefficiency but his union affiliation or activity. N. L. R. B. v. Electric City
Dyeing Co., 3 Cir., 178 F. 2d 980; N. L. R. B. v. Dixie Shirt Co., 4 Cir., 176 F. 2d 969,
973-4, Edward G. Budd Mfg. Co. v. N. L. R. B., 3 Cir., 138 F. 2d 86, 90, 91, cert. denied
321 U. S. 778. The critical question is the employer's true motive. As the court said in
the Electric City case, supra, 178 F. 2d at page 983, " ... it matters not that for
reasons apart from union activity an employee deserves summary discharge if as a
fact the reason was union activity." [ N. L. R. B. v. L. Ronney & Sons Furniture Manu-
facturing Co., 206 F. 2d 730.
9 Campbell and McLean, Inc., 1049; N L. R. B. v. Quest-Shon Mark Brassiere Co.,
supra; N L R B v. Tennessee Valley Broadcasting Co., supra.)
FAIRBANKS TRANSIT SYSTEM , INC. 989
In the light of the entire record, I find that the employment of Alice Jean Brink was
terminated on February 25, 1953 , to discourage membership in the Union , that the Respond-
ent thereby discriminated with respect to her employment tenure for a purpose proscribed
by the statute ; and that, in so doing , it interfered with, restrained , and coerced its employees
in the exercise of rights which Section 7 of the Act guarantees.
4. Paul Boisvert
According to the records produced by the Respondent , Paul Boisvert started work as a
driver on or about August 13 , 1952 . At the time , I find , he was already an active union member.
And on January 15, 1953 , he signed the petition designating the Union as his representative,
previously noted.
The available evidence with respect to his employment history , however , reveals con-
siderable variation . A synthesis of the entire record, based upon the most reasonable inter-
pretations possible , in my opinion , of the testimony offered by Boisvert , Garrison , President
Swank, and William Knight , will permit nothing more than an approximation as to the course
of his employment . For whatever it may be worth , that approximation may be summarized
as follows : Prior to January 10 , 1953 , Boisvert handled the Eielson Field run as a regular
assignment . Thereafter , according to his testimony , inferentially corroborated by President
Swank, Boisvert was ill and absent from work for 2 or 212 weeks . If Boisvert 's testimony can
be accepted as correct , the record would warrant an inference that he was well enough to
return sometime between the 24th and 28th of January . His own statements establish that he
was reassigned to the Eielson Field run for several days after his recovery , and that he was
then deprived of this regular assignment and relegated to "extra" status by Operations
Manager O'Grady . According to Boisvert , O'Grady advised him that he believed that he
(Boisvert ) could not handle his bus or hold a schedule . And the employee was informed,
I find, that he would be assigned , thereafter , to a schoolbus run. The exact date on which
this decision was made by some representative of the Respondent , has not been set forth in
the record.
Knight testified, albeit with considerable vagueness , that Boisvert was serving as a school-
bus driver when he [ Knight came to Fairbanks ; in the light of the entire record, I infer that
Knight's intended relerence was to the period of Boisvert 's service after his removal from
the Eielson Field run.
The employee 's testimony with respect to his employment thereafter cannot be characterized,
certainly , as entirely clear; he accounted for no more than 2 weeks between the 28th of January
and the 28th of February , 1953, when his employment with the Respondent ended . During this
period , he appears to have been "regularly " employed as a schoolbus driver--5 days a week,
twice a day , for a total of 3 to 4 hours per day . Knight and President Swank, as witnesses for
the Respondent , presented divergent testimony with respect to Boisvert 's employment history
at this time. Each reported that he (Botsvert ) had requested reassignment to the Eielson
Field run , and that he had been given such an assignment temporarily. They disagreed,
however, with respect to the manner in which his last assignment on a commercial run was
terminated , and with respect to the particular circumstances under which his employment
ended. Garrison , in his testimony , made no reference to any assignment of Botsvert to the
Eielson Field run after the 24th or 28th of January. In the absence of reliable records, the
testimony offered on behalf of the Respondent provides no reliable basis for a finding with
respect to the last few weeks of Boisvert's employment . I have, therefore , credited his
testimony that he was employed throughout these weeks as a schoolbus driver.
Boisvert testified that his work as a schoolbus driver did not involve any specific run; his
testimony indicates that he was considered an "extra" employee , and that his achievement
of work on a substantially regular basis , as indicated , was purely fortuitous . The employee
insisted however , and it would seem to be obvious , that his "regular " assignments as a
schoolbus driver , for a total of 3 to 4 hours per day, involved less work and lower earnings
than he received for regular work on the Eielson Field commercial run. Boisvert declared,
as a witness , that he had considered the amount of work insufficient, and that he had wanted
to find steadier employment . His testimony establishes that he resigned . The employee's
testimony with respect to his resignation was corroborated by Garrison ; the latter testified
that Boisvert 's assignments were restricted to school runs and that he had never been given
definite assurance of a reassignment to some commercial run. According to Garrison,
Boisvert had reported that he had some rental or installment obligations which he was unable
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet in view of his limited earnings , and that he had therefore declared an intention to quit.
Any serious consideration of the reliable , probative evidence in the record suggests the
existence of a significant question as to whetherBoisvert was, in fact , subjected to discrimina-
tion with respect to the hire and tenure of his employment , or the terms and conditions of his
employment , to discourage union membership and activity. The fact that he resigned and was
not discharged , however , should not, in and of itself, settle this issue under the statute. If the
actions of the Respondent , for example , indepriving loisvert of his regular , full-time assign-
ment on the Eielson Field commercial run and transferring him to "extra" work on a part-
time basis , however regular such assignments may fortutiously have been , were actually dis-
criminatorily motivated , there might be ample justification for a conclusion that Boisvert was
"constructively discharged "-- i. e., forced to resign -- for a reason which the statute is
designed to proscribe.
There can be no doubt that the Respondent was aware of Boisvert 's union sympathies
before his termination ; his encounter with Montgomery and his interrogation at the hands
of President Swank have been detailed elsewhere in this report. And O'Malley 's testimony,
previously noted , establishes that his name was on a list of union supporters in the Respond-
ent's possession . Garrison 's testimony reveals a statement , attributed by him to William
Knight as of some unspecified date, to the effect that Boisvert had not been reassigned to a
commercial run because of his union activity. The record shows , however , that Boisvert's
conversations with Montgomery and President Swank occurred after his designation as an
"extra" employee assigned to schoolbus runs . And Boisvert himself admitted that Operations
Manager O'Grady , at the time of his transfer , had ascribed it to the belief that he ( Boisvert)
could not handle his bus or hold a schedule . Garrison , as a witness for the General Counsel
under subpena, testified that $oisvert had been deprived of the Eielson Field run and assigned
to school runs because of the fact that he was "undependable " and because he had preferred
a particular coach for the run which he had tried to secure every day ; the driver supervisor
testified to the belief that ample justification existed for Boisvert's termination , and declared
that he would have discharged him long before he finally left.
Despite the additional testimony of Garrison , which I credit , that Knight had marked
Boisvert for discriminatory treatment because of his activity on behalf of the Union , I do not
believe that a preponderance oftheevidenceavailablewill support a conclusion that Boisvert's
transfer from a regular commercial run, and his demotion to the status of an "extra"
part-time schoolbus driver was effected inpursuitofan objective which the statute proscribes.
His resignation on or about the 28th of February may have been forced ; if so, however, it
was forced by a combination of circumstances , not attributable to bias on the part of the
Respondent , subsequent to his nondiscriminatory transfer . There is no reliable evidence
that the Respondent 's management refused to consider Boisvert for any part -time assign-
ments as an "extra" because of his union sympathy . And Garrison's testimony with respect
to Knight 's remark about Boisvert 's union adherence , standing alone, cannot be described
in my opinion as sufficiently substantial to sustain any conclusion that the Respondent failed
or refused to consider him for a reassignment to available full-time employment, for any
proscribed reason. The record , when considered in the round , cannot be said to contain
sufficient probative evidence to establish that Boisvert was subjected to discriminatory
treatment in order to discourage union membership , either in connection with his own
employment or in connection with that of the Respondent 's other employees . I so find.
5. William Diewold
William Diewold entered the Respondent's employ on or about October 14, 1952 . Between
that date and mid-December , approximately , he served as a driver on a regular commercial
run. In December I find, he was transferred , at his own request, to work as a "grease man"
or mechanic in the Respondent's garage . The record indicates that he held this position for
approximately 1 month . Concurrently , I find , Diewold was assigned "nearly every day" to
the day's first Eielson Field run, which was scheduled to leave the Respondent 's garage
at 5:45 a . m. and carried both commercial passengers and children en route to school, from
various points on the highway.
Sometime in January of 1953 , on a datenot set forth specifical'y in the record , Jack Benson,
the regular driver on a Coachways cross-country run between Fairbanks and Scottie Creek,
near the Canadian border , requested relief. The record does not indicate the individual who
received the request ; Swank could only testify that he'was informed of it, in his capacity as
FAIRBANKS TRANSIT SYSTEM, INC. 991
the president of Coachways, by "someo-ie" in Fairbanks. The available evidence establishes
however, and I find, that George Hayden, theRespondent's superintendent, assigned employees
Lane Hilsmger and Diewold to replace Benson on the Coachways run. (The record is not
entirely clear with respect to the nature of the personnel adjustment involved. Diewold and
Driver-Supervisor Garrison spoke of it as an "assignment" to the Scottie Creek run.
President Swank testified that: (a) Hilsinger and Diewold, at their own request, had been
transferred from the Respondent's payroll to that of Coachways under a "temporary loan"
arrangement, and (b) Diewold, at least, had been terminated by the Respondent in connection
with the transfer, and that he had been hired by Coachways directly. A preponderance of the
evidence establishes, in my opinion, that Diewold's assignment to Coachways service was
initiated by Superintendent Hayden of the Respondent, and that it did not involve a termination
of his employment by the Respondent Company. Swank's testimony that Diewold and Hilsinger
solicited assignment to the Scottie Creek run was obviously based on hearsay. I have given
it no weight. Diewold's testimony, the only recital available in circumstantial detail estab-
lishes that he made 3 trips on the run to Scottie Creek; each trip lasted 2 days. On the first
2, Diewold appears to have accompanied Hilsinger; on the last, I find, he handled the assign-
ment alone.
Diewold and Hilsinger appear to have taken their first Coachways run on the 18th and 19th
of January, and their second on the 25th and 26th of that month. Between these runs I find,
in accordance with Diewold's testimony, that he continued to serve as a "grease man" and
mechanic in the Respondent's grrage, and that he continued to handle the early morning
Eielson Field run.
The situation with respect to the Scottie Creek run between January 26, 1953, and the 8th
of February is not entirely clear. Diewold's testimony, which has not been contradicted on
this point, establishes only that his third, and last, run to Scottie Creek ended on February 9,
1953. His next departure was scheduled for the 12th. On the evening of February 11, 1953,
however, he was advised by Hayden that he was being "taken off" the run.
The record is silent with respect to any specific announcement by Hayden or any other
member of the Respondent's management in regard to Diewold's status thereafter as a
"grease man" and garage mechanic; such evidence as is available, however, suggests that
Diewold's "regular" employment with the Respondent was also terminated as of the date
on which he lost his Coachways assignment. President Swank, for example, testified that
Diewold, after being "relieved of his duties" on the Scottie Creek run, had requested the
Respondent's president to authorize his return to garage work for that firm; Swank declared
he had told Diewold that the Respondent could not "use" him in its garage, and said that he
had advised him (Diewold) to confer with Knight in regard to available work as a driver.
About 3 or 4 days later , Diewold asked Knight what the Respondent intended to do with hun;
and Knight replied, I find, that the Respondent's management could "probably" give hun
some assignment. Thereafter, on a date not set forth specifically in the record, Diewold
appears to have been assigned to one 20-minute school run.
Diewold's testimony, which has not been denied in this connection, establishes that he
checked the "call" sheets at the terminal dispatcher's desk for approximately 2 weeks
thereafter, and that he never saw his name listed for a run. At sometime during this period
also, his testimony shows, Diewold asked Operations Manager O'Grady if he would ever be
able to "get back" to work. And O'Grady replied, I find, that he did not know. The record
establishes that Diewold has never been formally discharged. The General Counsel and the
Respondent appear to be in substantial agreement, however, that the terminal date of March
1, 1953, set forth in the complaint may be considered, for the purposes of this case, as the
date on which the Respondent's management ceased to consider Diewold available for "extra"
assignments.
The available evidence shows, and I find, that Diewold, at all material tunes, was a union
member and, in fact, that he has been a union member since March of 1948. His testimony,
which has not been denied, establishes that he refused to sign the antiunion petition circulated
by Montgomery, with the remark that he was a union member. It also shows that he attended
the formal hearing held in connection with the Union's representation case on the 10th of
February; that he spoke to Business Agent Dixon of the Union there; and that his presence
could have been observed by Superintendent Hayden and Operations Manager O'Grady at least.
And the credible testimony of Employee O'Malley, previously noted, establishes that Diewold
was listed as a union supporter on the list in the Respondent's vault. In the light of the
record, it would seem to be patent that the Respondent may properly be charged with timely
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge of Diewold's status as a supporter of the Union in its bid for representative status.
I so find.
The record with respect to the motives of Superintendent Hayden in depriving Diewold of
his Coachways assignment, however, certainly cannot be described as entirely clear. Diewold's
own testimony, shows that Hayden, at some unspecified time before he (Piewold) was "taken
off" the Scottie Creek run, told him that if he (Hayden) could get the old driver (Benson) to
take the run back, he would give it to him; Diewold was told, he reports, that he would "auto-
matically" have to give up the run in that event. There is no indication in the record, however,
that Hayden's ultimate decision, as communicated to Diewold on the 11th of February, was
motivated in any way by an expression on the part of Benson of a desire to return. And Driver-
Supervisor Garrison, as a witness for the General Counsel, testified that he had been "told"
by Superintendent Hayden and Operations Manager O'Grady that Diewold was deprived of his
Coachways assignment because he "drank" at the stops along the run.
Diewold's testimony contains no reference to such an accusation; and there is, indeed, no
evidence whatever that Superintendent Hayden ever advised him that he had been deprived of
the run because of any misconduct on his part. In this connection, it should be noted that
Garrison's testimony with respect to the comments of Hayden and O'Grady involved hearsay;
O'Grady was not invited to testify on the subject, Hayden made no appearance as a witness
and appears not to have been available, and the Respondent 's witnesses gave no indication of
an intent to rely on misconduct, of the type alleged, to justify the termination of Diewold's
Coachways assignment. On the point at issue, therefore, Garrison's testimony stands without
support in the record. Because of its hearsay character, I do not believe that the record will
sustain a finding that Diewold actually "drank" while at work. I was, however, impressed
with Garrison's testimony as a whole and I am satisfied that his testimony with respect to
the statements of Hayden and O'Grady, now in issue, ought to be considered accurate. What-
ever the facts with respect to Diewold's conduct may have been, I am satisfied, in the light
of the entire record, that Hayden would have had no reason to misrepresent his beliefs with
respect to the employee in talks with Garrison; the testimony of the latter, therefore, ought
to be considered sufficient, in my opinion, to establish that he (Hayden) believed Diewold to
have been guilty of misconduct in connection with his work, when he so expressed himself.
As a witness for the Respondent, President Swank testified that "someone" in Fairbanks
had recommended Diewold as a replacement for Benson on the Scottie Creek run; that he
(Swank) had requested deferment of any action until he could Interview Diewold; that he had
been unable to arrange such an interview, thereafter, before the two "student" runs previously
mentioned; and that he had disapproved Diewold for the Coachways assignment because he
"felt" that Diewold could not be trusted with the equipment. No justification for his conclusion
was cited, however.
The record therefore indicates the existenceoftwopossible grounds, at least, for Diewold's
loss of the Coachways assignment insofar as that firm's de facto management was concerned:
Hayden's possible "belief" that Diewold had been guiltyof misconduct, and Swank' s "feeling"
that he could not be trusted with the equipment. As set forth in the record, these grounds are
not entirely inconsistent; without regard to their suppositious compatibility, however, it may
be noted that the record contains no evidence sufficient to warrant a conclusion that either
ground had a foundation in fact.
Since Coachways, a separate corporation, is not a Respondent in this case, the actual or
ostensible reasons advanced in its name to justify Diewold's termination as a driver on the
Scottie Creek run would appear to be immaterial. In any immediate sense they are. They
have been noted in this report, however, because of the light they may conceivably throw
upon the motives which impelled the Respondent's management to deprive Diewold of his
concurrent assignment as a garage mechanic and part- time driver. It is this action on the
part of the Respondent, primarily, which requires evaluation.
We turn, then, to an analysis of the Respondent's failure to "reinstate" or continue Diewold
in his regular garage assignment, after the termination of his Coachways assignment on the
Scottie Creek run. Diewold's testimony, in this connection, includes a statement attributed by
him to William Knight that he (Diewold) would not be reassigned or retained as a garage
employee and part-time driver, because his original shop assignment had been a temporary
one, dictated only by the absence of the Respondent' s grease man. And Diewold, in this con-
nection, volunteered information from which it could be inferred that the Respondent had, in
fact, had a "regular" grease man in its garage before his (Diewold's) assignment to such
work in mid-December. Diewold testified that this individual had returned to work for the
FAIRBANKS TRANSIT SYSTEM, INC. 993
Respondent before his assignment to Coachways service. Such testimony might support an
inference that no garage position was in fact available for Diewold after his Coachways
assignment as a driver was terminated. The, available evidence also indicates, however,
that Diewold continued to serve as a "grease man " and garage mechanic for the Respondent
between his runs to Scottie Creek. His testimony to that effect is supported, inferentially,
by the Respondent's records. Upon such evidence, an inference might be justified that some
position with substantially regular tenure was still available for Diewold, in the Respondent's
employ, after the 11th of February.
In this state of the record, any trier-of-fact would have to say that the available evidence
is insufficient to warrant a firm conclusion as to whether Knight's remark as reported by
Diewold correctly reflected, or misrepresented , the situation in the Company's garage. Two
inferences are suggested by Diewold's own testimony; but inferences cannot support factual
conclusions in the absence of proof. And the record on the point, certainly, cannot be con-
sidered clear.
When questioned as to Diewold's request for a "reassignment" to regular work in the
Respondent's garage, after his termination by Coachways, President Swank testified that he
had advised the employee that the firm was "cutting down" its garage crew. This assertion,
as allegedly made by the Respondent's president, was not challenged factually by the General
Counsel, but the record contains no evidence to establish its accuracy, either.
The record with respect to Diewold's employment history, therefore, can certainly be
described as inadequate. Insofar as I can evaluate it in the light of the available evidence, he
received an assignment as a Coachways driver, in mid-January, from the Respondent's super-
intendent, acting as a de facto agent for Coachways, in the absence of its president or any
other responsible official. At the same time, however, he continued to render services for
the Respondent. The payroll records of the firm establish that he earned $ 196.38 as a mechanic
and $40 as a driver in the semimonthly payroll period ending January 31, 1953, and that he
earned $ 34 as a driver in February's first payroll period, ending on the 15th of the month.
As of February 11, 1953, however, his regular employment with both companies appears to
have been terminated.
Garrison's testimony shows that he understood Diewold to be under "suspension" as an
employee of the Respondent, apparently because of the belief, shared by Hayden and O'Grady,
that Diewold had been guilty of drinking on the job while employed as a Coachways driver.
The driver-supervisor's credible testimony establishes that he was specifically told that
Diewold had been suspended, and that some "word" from President Swank or Superintendent
Hayden would be required before he could be reemployed; Garrison indicated no more than
a "belief," however, that Hayden had informed Diewold of the suspension.
If sufficient evidence had been adduced to support an inference that the "suspension" was
merely a euphemistic cloak for the Respondent's determination to deprive Diewold of "regular"
work because of his union activity and sympathies, the entire record with respect to Diewold's
removal from the Scottie Creek run could be dismissed as immaterial. The record, however,
contains hardly any direct evidence in support of the suggested inference. It has been found
that the management of the Respondent was chargeable, before the 11th of February, with
knowledge of Diewold's union membership. But Driver-Supervisor Garrison could not recall
any specific reference to Diewold as a union member by the Respondent's other supervisory
officials, and testified that he, personally, had not been aware of the facts in this respect, at
the time of the events with which we are ,low concerned. Upon the entire record, I am con-
strained to conclude that the belief, apparently shared by Hayden and O'Grady, that Diewold
had been guilty of misconduct in Coachways service, cannot be ruled out as a factor in his
"suspension " as a garage employee and part-time driver. The fact that the Respondent's
decision may not have been communicated expressly to Diewold, or explained, cannot militate
against this conclusion.
In the light of the entire record, therefore. I am not satisfied that a preponderance of the
evidence will sustain the conclusion that Diewold was deprived of regular employment as a
garage mechanic and part-time driver for the Respondent, on or about February 11, 1953, to
discourage membership in the Union, or that his employment was effectively terminated there-
after by virtue of the Respondent's failure to call hire for "extra" work after March 1, 1953,
in pursuit of an objective statutorily proscribed.
One may find in the record circumstantial evidence, of course, sufficient to create a strong
suspicion that the contentions of the General Counsel with respect to Diewold's employment
may be well founded. He was, at all material times, a union member and a supporter of the
339676 0 - 55 - 64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization's effort to achieve representative status. The evidencewith respect to the events
which developed in connection with the formal hearing on the Union's representation petition
will fully justify a conclusion that the Respondent was aware of Diewold's sympathy for the
Union and its objectives. I have so found. He was deprived of his regular employment with
Coachways and the Respondent not more than 1 day after his refusal to sign the antiunion peti-
tion, previously noted, and not more than 24 hours after the Respondent learned, in the repre-
sentation proceeding held on the 10th of February, that the Union's claim to representative
status might conceivably be tested, in short order, at an election. These actions of the Respond-
ent, in particular, which must necessarily form the gravamen of the complaint with respect to
Diewold, were not explained or justified to him when they were taken.
When considered in the light of the entire record, however, these facts--however strong the
suspicion may be to which they give rise--cannot, in my opinion, establish the General
Counsel's case. As theUnitedStates Courtof Appeals for the Eighth Circuit recently indicated:
When the mental process actuating a person in the performance of an act is the fact for
determination, oftentimes circumstantial evidence is the only type available. Circumstan-
tial evidence, as such, is not to be relegated to an undesirable category. But whether the
facts and circumstances constituting such evidence be of such weight as to be substantial
depends upon the nature of the facts shown, the consistency of those facts and circum-
stances with each other, their consistency with the truth of the ultimate fact, and their
inconsistency with a reasonable inference of the truth of the converse of the fact sought
to be shown, when viewed in the light of the entire record. (N. L. R. B. v. Stafford
Operating Company, 206 F. 2d 19.)
The suspicious circumstances to which I have referred in connection with the problem of
Diewold's employment tenure must be evaluated in the light of Garrison's testimony that he
was instructed to consider Diewold under "suspension" because of a course of conduct
attributed to him independently of his union sympathies, and in the light of Diewold's own
testimony that Knight refused to restore him to his combination assignment as a garage
mechanic and part-time driver because of the asserted fact that his original assignment to
the Respondent's garage had been "temporary" in the absence of the firm's regular grease
man, who had since returned. No evidence was adduced by any witness for the General Counsel
to establish that Diewold had not, in fact, been guilty of misconduct as a Coachways employee,
or that a position substantially equivalent to that which he had filled as an employee of the
Respondent before the 11th of February was, in fact, available thereafter. Upon the entire
record, therefore, I am constrained to find that the General Counsel has not established, by
a preponderance of the evidence, that Diewold was subjected to discrimination in connection
with his employment tenure in order to discourage union membership or activity.
Since I have reached this conclusion after a consideration of the evidence with respect to
the events which occurred before February 11, 1953, I have found it unnecessary to consider
a further contention with respect to Diewold which the Respondent has raised. Much evidence
was adduced, in Diewold's cross-examination, and as a part of the Respondent's case-in-
chief, to establish that Diewold, after his employment as a regular part-time driver ended,
failed to return his company-owned equipment and, most particularly, his money changer
and $49 in company funds issued to him in order to facilitate the making of change in con-
nection with the acceptance of cash fares. Diewold, as a witness, curtly denied that any of
the Respondent's equipment was still in his possession, but made no real effort to offer or
advert to probative evidence in support of his assertions. Since the impasse between the
Respondent and Diewold with respect to this issue apparently developed after February 11,
1953, when his employment as a driver was virtually terminated, it does not appear to have
played any part in the Respondent's decision, as of that date, to deprive Diewold of his earlier
regular assignment, although Knight did testify baldly and without circumstantial detail that
his reluctance to give Diewold "extra" work at frequent intervals after the 11th of February
and prior to March 1, 1953, had been grounded in his insistence that Diewold's obligation with
respect to the return of the Company's funds and equipment would have to be satisfied before
he could be considered for additional work. If required by the record to pass upon this issue,
I would have considered it relevant to the question of Diewold's right to reinstatement. His
attitude with respect to this line of examination could best be described as flip; it certainly
was not calculated to inspire confidence in the veracity of his testimony. And I would not have
been inclined to recommend his reinstatement with back pay (even on the basis of a conclu-
FAIRBANKS TRANSIT SYSTEM, INC. 995
sion otherwise favorable to the General Counsel's position) in the absence of evidence suffi-
cient to establish, beyond all doubt, that his obligation to the Respondent, with respect to the
return of its funds and equipment, had been completely satisfied.
6. Marcel Perez
Marcel Perez entered the Respondent 's employ as a busdriver on November 11, 1952. At
the outset of his employment , for a time, he apparently handled the Respondent 's Eielson
Field run. I so find.
The record establishes that he was a union member when that organization instituted its
effort to achieve representative status. Early in February when the antiunion petition was
being circulated, Montgomery approached Perez at the terminal and questioned him as to his
"feelings" with respect to the Union. Perez replied, I find, that he was a union member and
added that he had heard of Montgomery's petition. Montgomery in reply acknowledged the
circulation of a petition but declared that he did not need the signature of Perez, as sufficient
signatures had already been secured.
On one occasion, during the latter part of February, Perez was late for work, and observed
another driver at the wheel of his bus en route to the Respondent's terminal. Under the firm's
newly established regulations , previously duly promulgated and explained to all the drivers,
Perez was suspended for 3 days because of his tardiness by Operations Manager O'Grady.
The record establishes that the Respondent had just established and announced a standard
scale of penalties for tardiness or absence without notice --suspension for 3 days after the
first offense, 6 days after a second offense, and discharge in the event of a third offense.
At some unspecified time before his suspension, Perez had been transferred from the Respond-
ent's lengthy EieLson Field run to a city run. The record establishes, however, that the city
run in question was discontinued , for undisclosed reasons , during his period of suspension. I so
find.
While suspended, on a date in the last week of February not set forth specifically in the
record, Perez had a conversation with O'Grady about the Union's campaign; its substance
has been set forth elsewhere in this report. The testimony of Perez, which has not been denied
in this connection, also establishes that he entered the terminal, on at least 1 occasion during
his period of suspension, in the company of 2 union organizers, and that he was seen at the
time, in their company, by William Knight, O'Grady, and employees Montgomery and Fender.
Upon the entire record, it would seem to be clear, and I find, that the Respondent was fully
cognizant, at all material times, of the attitude taken by Perez with respect to the Union's
organizational activity.
On the final day of his suspension Perez, I find, telephoned Garrison to ask which run he
would handle after the suspension ended. According to the employee's testimony, Garrison
replied that he did not know which run would be assigned, and, indeed, that he did not know
when he (Perez) would be able to resume work. I so find. Perez pointed out that he had
seniority over several of the other drivers then in the Respondent's regular employ, and
asked, "Should I actually figure on starting back to work or should I just figure I was ter-
minated and looking for another job? " Garrison, as the record shows, advised Perez in words
or substance, "I think you had better look for another job." The available evidence suggests,
and I find, that Perez received this advice on about March 2, 1953.
Garrison's testimony, although not as circumstantially detailed as that of Perez, is consistent
with that given by the employee. The driver -supervisor Os a witness, added that he would have
reinstated Perez after his period of suspension, but for the instructions of William Knight;
Garrison testified that Knight had instructed him to tell Perez that no runs were available,
and that the statements reported by theesnployeehad merely been relayed pursuant to Knight's
instructions. And Garrison added that Knight, in givinghis instructions with respect to Perez,
had described his action as taken becauseofthe latter's union affiliation. I so find. Garrison's
testimony with respect to Knight's observation as to his reasons for the refusal to reinstate
Perez was clearly hearsay; in the context of the instant case, however, it involves a patently
crucial admission. In addition, it serves to reveal a material fact--Knight's motive for action--
indepeIidently of any finding with respect to his statement's truth or falsity. As such, under
the rules of evidence, Garrison's testimony with respect to it must be considered admissible
and probative.
The Respondent's contentions with respect to Perez are not entirely clear. Knight, whose
sketchy testimony with respect to this employee exhausts the record from the Respondent's
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point of view, testified only that Perez had "left" the Company's employ after his city run
was discontinued . At first, he insisted that Perez failed to "show up" for work after the aboli-
tion of his run; then he admitted receipt of a report from Garrison that he (Garrison) had
asked Perez to quit. In connection with this version of the situation, however, there is no
evidence whatever that Knight censured Garrison for his apparently unwarranted action (as
Knight reports the incident ) or that he then made any effort whatever to determine the personal
inclinations of Perez with respect to a new assignment . Knight merely denied that Perez had
been terminated because of his union activity.
Knight's testimony with respect to Perez was brief and, as previously indicated, deficient in
circumstantial detail. No clear inference can be drawn from it , therefore , as to whether the
Respondent contends that Perez resigned his employment voluntarily , or, in the alternative,
that he was requested to leave--in which case a discharge would have been involved . Upon the
entire record , I am constrained to reject Knight 's testimony with respect to this employee,
since it obviously lacks the substantiality to sustain any factual conclusions whatever.
Upon the entire record in this connection there would seem to be sufficient evidence to
establish that Perez , at all material times , was a union member and a supporter of its
organizational campaign ; that the Respondent 's management was fully cognizant of his attitude,
throughout the period in question , and that his employment as a driver was terminated, at the
option of the Respondent, because of his union membership and activities. I so find. The
record does establish, it is true, that his run (the run to which he was assigned immediately
before his suspension) was subsequently discontinued. In the light of the available evidence,
however, there would seem to be ample justification for a conclusion that he could have been
transferred to another regular assignment or, at the very least , that such a transfer for him
should have been considered. The Respondent made no effort, in this case, to criticize his
work. Perez testified without contradiction, in fact, that his work was never criticized. Since
there is nothing inthe record to thecontrary , and since my observation of Perez , as a witness,
has persuaded me that his testimony is credible, I so find.
The Respondent has, however, made no effort to establish that it considered Perez for a
transfer, or that it had good cause or any cause for a failure or refusal to reassign him. His
temporary suspension had involved a standard penalty; and since his tardiness on the occasion
set forth in the record appears to have been his first lapse subsequent to the promulgation of
the Respondent 's rules , as described in this report , the Respondent cannot, in my opinion,
effectively argue that the rule infraction involved justified his discharge . His supervisors
made no attempt to claim such a justification, in fact. Upon the entire record, I am convinced
and find that the Respondent refused to reassign him to a regular, full-time run after his
suspension, and advised him to seek employment elsewhere on or about March 2, 1953, because
of his union membership and activities. In so doing, I further find, the Respondent discriminated
with respect to his tenure of employment in order to discourage union membership, and inter-
fered with, restrained, and coerced its employees in the exercise of rights statutorily
guaranteed.
D. The refusal to reinstate dischargees
The Respondent argues that no foundation has been laid for a finding that the Respondent
refused and continues to refuse to reinstate or reemploy the dischargees, in violation of the
statute; it is contended that none of the dischargees has ever applied for reemployment or
reinstatement, although the Respondent has at all times been willing to rehire its "laid-off"
employees as needed. The issue raised by the argument has no material relationship, however,
to the basic problems presented in the instant case ; it is well established that the failure of
a discriminatorily discharged employee to apply for reinstatement cannot in any way affect
the need for remedial action to correct the specific unfair labor practice "completed" by his
dismissal. (Pennsylvania Greyhound Lines, Inc., 1 NLRB 1, 38.) And long-settled decisional
doctrine also would compel a determination that the contention, even if its materiality could
be assumed, lacks merit; where the original severance of employment is in itself an unfair
labor practice , the employer is under a duty to offer reinstatement , and an employee's failure
to apply for it is immaterial. 11 In the absence, therefore, of any evidence with respect to
'0National Labor Relations Board, Second Annual Report, p. 76; Smith Cabinet Mfg. Co„
1 NLRB 950, 960; Morristown Knitting Mills, 80 NLRB 731, 732; The Red Rock Company, 84
NLRB 521, 527, enforced 187 F. 2d 76 (C. A 5), and the cases therein cited.
FAIRBANKS TRANSIT SYSTEM , INC. 997
specific offers of reemployment or reinstatement addressed to the discriminatorily dis-
charged employees , I find that the Respondent 's unfair labor practice was a continuing one;
it included , in fact and in law, a refusal to reemploy or reinstate the employees in question--
and it is so found.
E. Subsequent Developments
On March 30 , 1953 , the Board issued a Decision and Direction of Election in Case No.
19-RC-1252 . Thereafter , however , by a letter dated on April 17, 1953 , the Union requested
permission to withdraw its petition in the case . The request was granted on April 23, 1953.
No election pursuant to the Board 's order has ever been held.
F. The refusal to bargain
1. The appropriate unit
In its decision on the Union 's representation petition the Board found appropriate, for the
purposes of collective bargaining , a unit defined as follows:
All busdrivers employed by Fairbanks Transit System , Inc., in the area of Fairbanks,
Alaska , excluding supervisors as defined in the Act.
And the General Counsel contends that the unit , as found, should be considered appropriate
for the purposes of a collective bargain in the present case. The Respondent disputes its
appropriateness.
I find merit in the General Counsel's contention . Although no specific evidence in support of
the contention was adduced , with the exception of the Board 's decision , the record as a whole
suggests the appropriateness of a unit limited to the Respondent 's busdrivers , as defined. Such
a unit has been found inherently appropriate , ii And the Respondent introduced no evidence
in suport of its contention that the unit approved by the Board in the representation case
is inappropriate . In the light of the entire record, and the available precedents , I find that
the unit described in the Board 's Decision and Direction of Election, as set forth above, was
at all material times , and now is , atunit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act , as amended.
2. The Union' s representative status
(a) The issues
Although the unit appropriate for the purposes of a collective bargain on behalf of the
employees may thus be simply defined, the problems presented in connection with any attempt
to determine the Union 's status as the alleged representative of an employee majority,
within the unit as defined , have not been easy to settle.
The General Counsel contends , in the amended complaint , that the Union was, at all material
times , the designated representative of an employee majority in the unit herein found appro-
priate, and that, by virtue of Section 9 (a) of the statute , it was entitled to recognition as the
exclusive representative of the employees within that unit. Any attempt to reach a conclusion
with respect to the merits of this contention would necessarily require consideration of several
preliminary issues:
(a) A determination would first have to be made as to the composition of the unit --i.e., the
specific employee categories and types of employee tenure encompassable in a unit intended
to cover "all bus drivers" in the Respondent 's employ.
(b) Some conclusion would then- be required as to the number of employees within the
employee group involved, on each of the significant dates to which reference is made in the
present complaint , as amended.
"See Columbus -Celina Coach Lines, et al., 97 NLRB 777; Gastonia Transit Company, 91
NLRB 894, and the cases therein cited.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The evidence relied upon by the General Counsel to establish the designation or selection
of the Union as a collective-bargaining agent, on behalf of the employees, would then have to
be evaluated.
(d) And finally, the number of union supporters within the appropriate unit, at all times,
would have to be compared with the total number within the unit herein found appropriate, at
such times, in order to reach a determination as to whether the Union ever achieved any
status as a majority representative
In January and February, as previously noted, the Respondent employed a number of regular
full-time, city drivers, assigned to its commercial runs on shifts which approximated 9 hours
in length Each of these individuals, whatever the length of their period of employment, held
relatively fixed assignments, subject to variation only in periods of emergency. No substantial
question appears to exist as to the propriety of their inclusion as a component part of the unit
found appropriate, in this case, for the purposes of a collective bargain.
However, the Respondent then employed, and continues to employ, a number of drivers who
serve on something less than a regular, full-time basis. The record establishes, specifically,
that the firm employs:
(a) Regular part-time schoolbus drivers, with fixed assignments , who perform no other
services for the Respondent , in any capacity.
(b) Regular part-time schoolbus drivers, with fixed assignments, who also serve the Respond-
ent as garage mechanics.
(c) Irregular part-time drivers and "extras " who serve as relief drivers on commercial
runs, replace any regular part-time schoolbus drivers or city drivers temporarily absent or
unavailable, and drive schoolbuses on various runs to which no particular employee has
otherwise been assigned.
The participants in this case took no position with respect to the inclusion or exclusion of
these part-time employees as a component part of the unit found appropriate for the purposes
of a collective bargain. The decisional principles applicable in cases requiring such a de-
termination, however, would seem to be well settled. The Board has repeatedly declared that
its conclusions with respect to the appropriateness of any unit are based upon the inclusion
of functionally related job categories. All of the employees at work within the unit are nec-
essarily included and entitled to representation , irrespective of their employment tenure. The
determination factor with respect to the inclusion, in the present unit, of the above-described
part-time employees, therefore, would appear to bethe similarity between their interests and
employment conditions and those of the regular full-time drivers in the unit. See National
Labor Relations Board, Seventeenth Annual Report, p. 82, and the cases therein cited. No issue
has been raised, in this case, with respect to the existence of such a critical similarity. I find
that it exists.
The only serious question suggested by the record, then, insofar as it reveals the part-time
tenure of some of the Respondent's employees, would appear to involve the propriety of their
inclusion within the unit for the purpose of determining the Union's majority.
Little data appears to be available in unfair labor practice cases, in this connection, but
the Board has had occasion, frequently, to determine the voting eligibility of part-time em-
ployees in representation elections. The two questions would appear to be closely related.
And in its most recent annual report, the Board described its decisional doctrines in regard
to the eligibility problem as follows:
Part-time and extra employees ordinarily are eligible to vote if they work regularly
and perform work similar to that of full-time employees under comparable employment
conditions Conversely, part-time employees whos employment is neither frequent nor
regular are ineligible to vote . If a part-time employee has other employment with
another employer, he will be eligible to vote only if his part-time employment in the vot-
ing unit is regular and for a substantial portion of his time (Emphasis supplied ) (See
Sixteenth Annual Report, p. 122.)
During the past year, the Board modified its rule regarding the voting eligibility of
employees who work part-time in the voting unit and part-time elsewhere for the same
employer (Ocala Star Banner, 97 NLRB 384) Previously, such employees were per-
mitted to vote only if they worked 50 percent of their time in the voting unit. But, under
the new rule, they are treated in the same manner as part-time employees who during
the remainder of their time are idle, or work for a different employer. iz
12 National Labor Relations Board, Seventeenth Annual Report, p. 94, and the cases therein
cited.
FAIRBANKS TRANSIT SYSTEM, INC. 999
(b) The evidence
In an attempt to apply these principles to the Respondent's payroll as it stood in the January-
February period, I have considered all of the available evidence with respect to the duties and
employment tenure of 48 persons, all of them named in the record as employees who served
the Respondent, in a greater or lesser degree, as busdrivers during the period in question.
Any attempt to set forth in detail the evidence which influenced my decisions with respect to
the employment tenure of each and every employee, named by the Respondent as a full-time
or part-time driver, would extend this report considerably I have, therefore, summarized
my conclusions, except as to those employees with respect to whom specific discussion
appears to be warranted. A tabular summary of my findings follows-
Regular full-time city drivers (20)
Donald G. Alder
Paul Boisvert
Verla Mae Bowen
Alice Jean Brink
Donna Carmichael
Fred Cole
James Flynn
Paul Gillum
Beatrice Greenside
John Jaskowski
Felix A Lederer
Donald Mariott
Herman Montgomery
Fred Nikitin
Marcel E Perez
Wilfred Plumondore
Clare Z Russell
Edward Sankey
Charles Singleton
Mamie Wright
Boisvert, as I have previously found, was a regular full-time city driver before his absence
due to illness began on or about January 10, 1953 After his recovery he returned to a regular
full-time assignment, until the end of January Thereafter, and until his termination late in
February, Boisvert appears to have served as an "extra" driver for a substantial portion of
his time. I have listed him at this point for convenience.
The available evidence with respect to Cole, Flynn, Greenside, and Montgomery does not
include information as to their earnings. In the case of Cole and Montgomery, the data in the
Respondent's possession, if any, was simply not assembled or presented to the General
Counsel's representative. Earnings figures with respect to Flynn and Greenside were not
offered for the record, I infer, because the Respondent's data revealed that their initial em-
ployment with the firm began after February 15, 1953, when the last payroll period covered
by the General Counsel's request for information ended. The status of each employee as a
regular driver would seem to be clear, however, specific testimony with respect to the regu-
larity of their employment, regardless of its duration, was offered and received without con-
tradiction
As to Brink and Montgomery, the available evidence establishes only that they were regu-
larly employed, substantially on a full-time basis, as relief drivers on the Respondent's
commercial and school runs; since they do not appear to have been limited to part-time work
their employment tenure, in trry opinion, ought to be considered equivalent to that of the
Respondent's regular full-time city drivers. It has been so found
Five of the listed employees, Brink, Lederer, Marion, Sankey, and Singleton, served only
in 1 of the 2 pay periods covered by the available data. And in the case of one, Nikitin, the
Respondent produced earnings information for a January pay period only, although its records
show his separation date as February 20, 1953, since the record suggests that the personnel
data submitted by the Respondent may be more accurate than its payroll information, I have
counted Nikitin as a regular employee at all material times prior to the date of his February
termination
Bowen and Russell, though discharged on the 9th of February, retained their employee
status by definition under Section 2 (3) of the statute, and they have been counted as regular
full-time city drivers throughout the critical period involved in this case Perez and Plutnon-
dore were not terminated until a date or dates subsequent to the January - February period
with which this report is concerned; and their status as regular full-time drivers prior to
their termination is not disputed
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regular Part-time Schoolbus Drivers (Not otherwise employed by the firm) (6)
Lee A Dixon Major W Grotts
George W. Frye, Jr. William Petersen
Paul E Gapen Bernard Vaughn
Payroll information with respect to Gapen, again, is not available, since he appears to have
been "hired" on February 16, 1953. The parties stipulated to that'date as his date of assign
ment, it was also stipulated that he served without compensation, while "learning" the runs,
until the 19th or 20th, when he received his chauffeur's license, and that he was assigned to a
regular school run and "extra" city runs, with pay thereafter. I have considered Gapen a
regular part-time employee of the Respondent on and after the 16th of February, the date on
which his application was accepted and his starting rate determined.
In the light of the limited record available, there may be some doubt as to whether Grotts
and Petersen worked within the unit for a "substantial portion', of their time. Their reported
earnings were low, but the evidence, considered as a whole, has inclined me--albeit with
some reservations--to resolve residual doubts in favor of their inclusion, and to count them
as employees within the driver unit.
With respect to William Petersen, also, no dates of employment are given in the record.
The payroll information submitted by the Respondent, however, indicates that he worked in
the latter part of January and the first half of February. His earnings in these two semimonthly
periods appear to be more or less comparable with those of the other regular part-time
schoolbus drivers, with whom he was classified by several witnesses I have, therefore, con-
cluded on what appears to be a slight preponderance of the evidence that he was a regular
part-time employee of the Respondent for a "substantial portion" of his time, and that he
should be counted as a clearly established member of the driver's unit, at least through the
15th of February. The record is silent with respect to his employment thereafter.
Irregular Part-time and Extra Drivers (Not otherwise employed by the firm) (3)
Rutherford Bright
George Fain
Lane Hilsinger
With respect to Rutherford Bright, no dates of employment are given in the record. A pre-
ponderance of the credible evidence establishes, and I find, that Bright worked irregularly
in January and February, but his earnings appear to have been high enough to warrant a
conclusion that he was so employed for a "substantial portion" of his time, in the period
taken as a whole It is, therefore, so found. The record indicates, also, that he is still
in the Respondent's employ and that he is a regular driver now. I have, therefore, counted
him as a member of the driver's unit throughout the critical period delimited in the complaint
--i.e., until the 17th of February
Fain and Hilsinger appear to have been concurrently employed as Coachways drivers. The
former was initially employed in February. Hilsinger's earnings with the Respondent have been
reported only for the last half of January, but the firm's personnel records show his termina-
tion date as March 3, 1953. I have considered him an employee of the Respondent on an
irregular part-time basis, up to the date, of his termination. Despite the absence of re-
ported earnings for him in the firm's first February payperiod, his earnings in January
suggest the propriety of aconclusionthatheserved as a part -time employee for a "substantial
portion" of the January-February period as a whole. On what appears to be a slight pre-
ponderance of the evidence, considered in its entirety, I so find.
Irregular Part-Time and Extra Drivers (Employed by the Respondent as mechanics) (4)
William L. Diewold Roy Prough
James Houtchens T. M. Spencer
With respect to each of these employees, the firm's payroll records establish that more
than 20 percent of their total earnings, within the two January- February payperiods for which
such records are available, derived from work within the driver's unit. In terms, 20 percent
FAIRBANKS TRANSIT SYSTEM, INC. 1 001
has been held to be a "substantial portion" or any part-time employee's working time. The
Broderick Co. (Header-Press Division), 99 NLRB 385 By parity of reasoning, proof that
more than 20 percent of a regular employee's earnings derived from work within the unit
ought to be considered sufficient to establish that d "substantial portion" of his work was done
within that unit, at least incases for which "time" data is unavailable or difficult to ascertain.
I so find.
The evidence indicates that Diewold's status changed after February 11, 1953, and that he was
not given work to any significant extent thereafter To the extent that this fact may be material,
if at all, the matter will be discussed elsewhere in this report.
Although the Respondent's available records include no data with respect to the duration of
T M. Spencer's employment, his own testimony, which was undenied, establishes that he
worked for the Company from December 15, 1952, to May 15, 1953 I find that he served as
a part-time driver for a "substantial portion" of the time covered by the events with which
this case is immediately concerned
Employees Excluded from the Unit (8)
C. E. Baxter Edward Kerby
Ralph Fender Thomas O'Shaughnessy
Edmond Frazer Vernon Rhodes
Harold Griffin Hubert Tyree
No information is available with respect to the exact duration of the employment of Baxter,
Rhodes, and Tyree. Earnings have been reported for Rhodes and Tyree, however, in the Re-
spondent's last January payperiod and the first semimonthly period in February. For Baxter,
earnings were reported in the Respondent's last January payperiod only. They establish that
all 3 of these employees earned less than 20 percent of the total pay they received, within
the driver's unit, during the payperiods involved. President Swank concurred in the General
Counsel's contention that Tyree was "primarily" employed as a mechanic, and the accuracy
of the Respondent's payroll records with respect to Baxter or Rhodes has not been challenged.
Fender was employed between February 18, and April 20, 1953; he was thus not in the Re-
spondent's employ during the period within which the Union's majority status must be tested.
Kerby's earnings within the period with which we are concerned were so low, as a driver
and as a mechanic, as to compel the inference that he would have no real interest worthy of
cognizance in a formal proceeding to determine the Union's status as a majority repre-
sentative. And the same conclusion would seem to be warranted with respect to Frazer,
Griffin, and O'Shaughnessy, all irregular part-time and "extra" drivers. It is, therefore,
so found.
Employees of Doubtful Status (7)
Harold Atkinson Lloyd Grossnickle
Steve Begley James Ledeke
N. Jack Benson, Jr. James O'Malley
Dewey Siah
The records of the Respondent reveal that Begley and Ledeke were employed for specific
periods in January 1953, but there is no evidence available as to the nature of their assign-
ment, their earnings , or their employment tenure.
In the case of Grossnickle, also , no usable information was provided, he was identified
only as a mechanic and extra driver on the Respondent's Eielson Field run during the winter.
Benson was identified, in testimony, as a Coachways driver on a leave of absence, whose
services for the Respondent were largely confined to its office. No dates with respect to
his employment by the Respondent are available. Its payroll records show that he earned
$45 as a mechanic in the firm's last January payperiod, and $ 198.50 as a driver. The latter
sum is reported in 2 portions--$ 187.50 and $11 respectively. Benson also earned $ 14 50
as a driver in the firm's first February payperiod. Such earnings as a driver for the Re-
spondent would be inconsistent with the available testimony that Benson took leave of his
Coachways assignment as a driver to work in the Company's office. Could the $ 187 50 re-
present his earlier Coachways pay, mistakenly charged to the Respondent's payroll account9
1 002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record reveals an ambiguity with respect to Benson's status , which none of the available
evidence will clarify.
With respect to Atkinson , O'Malley, and Siah, each of whom was employed throughout the
January- February period with which we are concerned , the Respondent ' s records reveal
substantial earnings , most of the sums involved being charged in each case to their work as
garage mechanics . Relatively insignificant amounts were reported for their work as drivers.
As a witness , however, the Respondent ' s president insisted that they did more work as
drivers than his own firm's payroll records would appear to show . He expressed the opinion
that these men in particular , employed at an hourly rate as mechanics , had failed or de-
liberately omitted to " clock out" when assigned to work as drivers , so that the amounts
due them for trips would be understated and the amounts due them for garage work would
be overstated . If the record merely revealed Swank's suspicions on this score , I would be
inclined to accept the agreed -upon abstract of the Company ' s payroll records as the best
available evidence of the facts . But Atkinson , as a witness for the General Counsel, ad-
mitted that he had frequently , if not regularly , handled assignments as a schoolbus driver
after February 1, 1953, and his testimony discloses that the garage time clock had been
in disrepair for an undisclosed period of time before that date. His testimony, therefore,
provides some objective support for Swank ' s generalized suspicions , I find it sufficient
to cast doubt on the accuracy of the Respondent ' s payroll data in this connection . The record,
therefore , must be considered insufficient to establish by a preponderance of the evidence
that Atkinson , O'Malley, and Siah should be excluded from the driver's unit for the purpose
of the count now in issue.
With respect to the 48 persons who served as drivers , at one time or another during the
period with which this case is concerned , the record will thus justify certain limited con-
clusions 33 apparently served as regular full -time drivers or part -time drivers for a
" substantial portion" of the time , throughout their respective periods of employment.
Eight employees , apparently , ought to be excluded from consideration in any attempt to
determine the number of employees in the unit herein found appropriate , at any time within
the critical period, either because their employment began thereafter or because the availa-
ble payroll information will justify an inference that they performed part-time service
within the unit for something less than a " substantial portion" of the period during which
they were employed . And the record with respect to seven employees must be considered
ambiguous , either because of the absence of evidence as to the nature of their assignments
or employment tenure , or because of doubt as to the probative character of the evidence
upon which reliance must be placed in connection with any determination as to their in-
clusion or exclusion from the unit for the purpose of a majority count.
In this state of the record , our attention should then be turned to the character of the
evidence relied upon by the General Counsel to establish the designation or selection of
the Union as the collective - bargaining agent of the Respondents ' employees . This evidence,
in its original form , apparently , consisted of the Union ' s official membership records,
applications for union membership , and a petition in which various employee signers desig-
nated or selected the Union to act as their agent in the negotiation , execution , and enforce-
ment of a collective bargain. For the present record, the information available in these
original documents was abstracted and summarized in a document prepared at the direction
of a union business agent . His testimony , which I credit, establishes that the Union's original
records, although not offered in evidence , were available for inspection by any interested
parties at the hearing , and that the summary sheets offered in evidence correctly reflected
all of the relevant information on the original records in question . I so find.
The Respondent objected to the introduction of the summary as an exhibit on the ground
that it was " incompetent , irrelevant , and immaterial , and not germane to any issue involved
in this proceeding at this time" and on the further ground that a proper foundation had not
been laid for its introduction . After reserving a decision with respect to the admissibility
of the summary , until such time as the General Counsel indicated his intentions clearly
with respect to the addition of a refusal - to-bargain allegatidn to the complaint , I overruled
the Respondent 's objections and received the summary in evidence . This decision is reaffirmed.
Evidence as to the designation or selection of the Union as the bargaining agent for certain
employees of the Respondent would obviously be relevant and material in connection with any
allegation that the Respondent refused to bargain. When embodied in the Union 's official
membership records, applications for membership , and a designation petition , such evidence
is obviously competent , evidence as to current union membership or the recent execution of
FAIRBANKS TRANSIT SYSTEM, INC. 1003
an application for membership has been held probative of an intention to designate the
labor organization involved as a bargaining agent, and a petition specifically couched in
such terms would obviously be probative with respect to the issue . Cf. New Jersey Carpet
Mills, Inc , 92 NLRB 604, Long-Lewis Hardware Co., 90 NLRB 1403, United States Gypsum
Co., 90 NLRB 964 And, in the lightof the evidence with respect to the manner of its prepara-
tion, I am satisfied that a proper foundation was laid for the receipt of the Union ' s summary
in evidence
The summary provided information with respect to 23 persons . With respect to 2, James
Houtchens and Herman Montgomery , a substantial dues delinquency was indicated , and the
record establishes that these employees were, in fact, formally suspended in March and
April of 1953 , respectively I have not considered them union adherents or supporters. One
employee , Donald Mariott; was listed only as an active union member throughout the January-
February period with which this case is concerned . Four employees , Alder , Begley , Brink,
and Carmichael , were listed only as applicants for union membership. Four others who
signed applications for membership, Hilsinger , Jaskowski , Ledeke , and Russell, were
listed as concurrently active union members in good standing throughout the period in
issue. The other employees involved , 12 in number , were listed as signers of the Union's
authorization petition ; 2 of these , Baxter and O 'Shaughnessy , were listed as inactive members
holding union withdrawal cards at the time, while the remainder were listed as active union
members for all or part of the January - February period with which we are concerned.
In my opinion , all of the individuals listed with the exception of Houtchens and Montgomery
ought to be considered adherents or supporters of the Union at all times subsequent to their
initial objective manifestation of an intent to have the Union represent them, whether such
objective manifestations involved applications for membership, signatures on a designation
petition , or the mere maintenance of active union membership. 13
No contention has been made that the passage of time made any of these objective mani-
festations stale. The Respondent has, hbwever , adverted to the antiunion petition --presented
as a company exhibit in the Union 's representation case- -as probative evidence of a desire
on the part of its signers to disassociate themselves from the Union ' s bid for representative
status In the light of the evidence , previously noted, as to the Respondent ' s sponsorship
of the petition , and in the light of the methods employed by Montgomery as the Respondent's
agent in connection with its circulation , it cannot be considered indicative of the uncoerced
desires of its signers . In my opinion , therefore , it ought not to be considered effective as a
revocation of any previous designation or selection . 14 I so find.
(c) Conclusions
In this posture of the record , how much validity is there to the General Counsel ' s claim
that the Union was designated by a majority of the Respondent 's employees to act as their
representative for the purposes of collective bargaining , and that it was entitled to recognition
as their exclusive agent for that purpose?
The General Counsel's complaint alleges a refusal to bargain on the part of the Respondent
on and after certain specified dates These dates are particularized in the complaint as
follows
January 20 , 1953--the date on which the Union sent its first letter to the Company
January 22, 1953- - the date on which the Union's letter was received
February 9 , 1953--the date on which the first discriminatory discharges occurred.
February 10 , 1953-- the date of the formal hearing in the Union's representation case
February 16, 1953--the date on which the Union ' s second letter was sent to the Company
February 17, 1953--the date on which the Union ' s second letter was received.
i3See e, g. N. L R . B. v, Bradford Dyeing Association , 310 U . S. 318 , 338-340; N. L R. B.
v. Louisville Refining Co., 102 F. 2d 678 , 680 (C . A. 6), cert. denied 308 U S 568; Lebanon
Steel Foundry v . N. L R. B. , 130 F. 2d 404, 407-408 (C. A. , D C.) cert . denied 317 U. S.
659; N L. R. B. v. Clinton E. Hobbs Co ., 132 F 2d 249, 251 (C A 1 ); N. L. R. B v, Fiss
Corp., 136 F 2d 990 (C. A. 3), enforcing 43 NLRB 125 , 143-144. Cf. Brown Truck and
Trailer Mfg. Co. , Inc., 106 NLRB 999.
'4See Apex Toledo Corporation , 101 NLRB 807; Long- Lewis Hardware Co., 90 NLRB
1403; Superior Engraving Co., 83 NLRB 215.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the complaint alleges that the Union is now and that it was, at all times specifically
alleged, the representative of an employee majority within the unit herein found appropriate
for collective bargaining, a determination of the issue would seem to require findings with
respect to the Union's representative status on each of the dates to which a reference has
been made. The task has been difficult, primarily because of the inadequacies of the record
with respect to some of the Respondent's employees previously listed and described as em-
ployees of doubtful status. A tabular summary of my conclusions with respect to the Union's
representative status on each of the dates specifically mentioned in the complaint follows:
Employees 1-20 1-22 2-9 2-10 2-16 2-17
Clearly within unit 22 21 23 25 27 28
Status doubtful 7 5 5 5 6 6
Subtotal 29 26 28 30 33 34
Clearly outside unit 5 5 7 7 7 7
Total 34 Ti 35 37 40 41
Union Employees
Clearly within unit 11 11 12 12 12 12
Status doubtful 4 2 2 2 2 2
Subtotal T5_ 7 14 14 14 14
Clearly outside unit 1 1 1 3 3 3
Total 16 14 15 17 17 17
Nonunion employees
Clearly within unit 11 10 11 13 15 16
Status doubtful 3 3 3 3 4 4
Subtotal 14 13 14 16 19 20
Clearly outside unit 4 4 6 4 4 4
Total 18 17 20 20 23 24
The record, in my opinion, thus will not support a conclusion that the Union ever repre-
sented a majority of the Respondent's employees in a unit limited to its drivers As an
analysis of the table reproduced above will show, the Union may have achieved such status
on the 20th of January, when its first letter to the Respondent was dispatched. In the face of
the ambiguities implicit in the record, however, a definitive conclusion that the Union
achieved majority status on that date could not be sustained
In order to permit an adequate review of my conclusions in this respect, a detailed list
of the Respondent's employees, as of January 20, 1953, would seem to be required it follows
Union Employees
Clearly within the unit
Boisvert Jaskowski
Bowen Mariott
Diewold Nikitin
Gillum Perez
Hilsinger Plumondore
Russell
Status doubtful
Begley Ledeke
Grossnickle O'Malley
FAIRBANKS TRANSIT SYSTEM, INC. 1005
Clearly outside the unit
Tyree
Nonunion Employees
Clearly within the unit
Alder Houtchens
Bright Prough
Dixon Vaughn
Frye Wright
Grotts Petersen
Spencer
Status doubtful
Atkinson
Benson
Siah
Clearly outside the unit
Baxter Kerby
Frazer Rhodes
The previous discussion has indicated my residual doubts with respect to the unit inclusion,
for present purposes, of Bright, Grotts, Hilsinger , and Petersen. Analysis will show that the
relegation of these employees to doubtful status, and even their outright exclusion from the
unit, would not result in the establishment of the Union's majority status by an evidentiary
preponderance . Hence my conclusion, as previously stated
By January 22, 1953, when the Union's letter was received, I find, by an agent of the Re-
spondent, Begley and Ledeke, two union adherents with respect to whose employment assign-
ment and tenure the record is silent, had left the Respondent's employ. The record is silent
with respect to the circumstances of their termination, but no contention is made that any
unfair labor practice was involved. Roy Prough, a nonunion employee clearly assigned to
work as a driver throughout his period of employment, had also been terminated. In deter-
mining the identity of the Union supporters among the Respondent's employees as of any
given date, I have given due regard to the available evidence with respect to their active
membership in the Union throughout the months of January and February, 1953; with respect
to those individuals for whom the record shows inactive membership or no previous union
connection, designation or selection of the Union has been considered as occurring on the
date on which their signatures were appended to an application for membership or the designa-
tion petition. In Donald A]der's case, for example, the record shows that he signed an applica-
tion for union membership on February 5, 1953, and that he had previously had no union
connection I have, therefore, counted him as a nonunion employee on the 20th and 22nd of
January
As of February 9, 1953, Alder and Carmichael, the latter a new employee, had designated
the Union as their representative Mariott, however, had been separated from the Respondent's
employ. This resulted in a net gain of one among the Union's supporters With respect to the
nonunion employees, the Respondent's payroll records establish that Houtchens had been
terminated, and that Fain and Montgomery had entered the firm's employ. The names of
Griffin and O'Shaughnessy also appear on the Respondent's payroll, for the reasons already
set forth at length in this report they have not been counted as members of the busdriver
unit.
Successive personnel changes on the 10th, 16th, and 17th of February did not improve the
Union's position Even after an assumption that Bowen and Russell retained employee status,
under Section 2 (3) of the statute, despite their discriminatory discharge, and a further
assumption that Gillum retained employee status as a temporarily laid-off employee, the
Union's percentage of representation declined. At various dates within the period noted,
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brink, Cole, Flynn, Gapen, Greenside, Lederer, and Sankey joined the Respondent's staff.
Jaskowski's employment ended In the light of the inadequate records available, the status of
Benson, Frazer, Griffin, O'Shaughnessy, Petersen, Baxter, Rhodes, and Tyree became even
more clouded. Insofar as conclusions are possible one can only infer, in the light of the
record, that the Respondent's payroll expanded while the Union's representation, within the
appropriate unit , remained static . It is , therefore , so found.
It is well established under the Act as amended, so well established as to require nothing
more than restatement here, that the burden of proof with respect to any alleged violation
of the statute is laid upon the General Counsel's representative. In cases which involve an
alleged refusal to bargain , the established decisional principles require that the General
Counsel must show, by a preponderance of the evidence, the limits of the unit appropriate
for the purpose of collective bargaining , the union's status as a majority representative
within that unit at material times, the presentation of an unequivocal demand for recognition
and collective bargaining by the labor organization, and a refusal on the part of an employer
to accord such recognition or to undertake negotiations.
Insofar as the question of majority status is concerned it would seem to be clear that the
General Counsel, in order to meet his burden, ought to be required to establish, by reliable,
probative , and substantial evidence , the number of employees in the appropriate unit at all
times alleged to be material , and the effective designation of the union by a majority of the
employees in question.
Although the point has never been expressly decided, insofar as I can determine, it would
seem to be patent that the General Counsel, in order to prevail, must establish the inclusion
or exclusion from the unit of each and every individual whose status as an employee of the
respondent at material times is established by the record. If the available documentary
evidence and testimony with respect to such employees is ambiguous, or leaves unresolved
doubts as to their inclusion or exclusion, the General Counsel is not entitled to a disposition
of the question on the basis of a mere suspicion or inference. Nor can his burden be dis-
charged, as I see it, by theeliminationof such employees from consideration for all purposes;
the size and composition of the employee unit found to be appropriate for the purposes of a
collective bargain cannot be so cavalierly manipulated merely to achieve superficial clarity
in the teeth of an ambiguous record.
It follows, in the light of these considerations, that the General Counsel's burden has not
been met here. In so holding, it should be made clear, I do not imply that the General Counsel's
investigation was inadequate, or that his presentation was faulty And in the interest of
equal justice it should be pointed out that there is no basis in the record for an inference
that the Respondent withheld information readily available, or that its officials created the
difficulties with which the General Counsel's attempted investigation was beset. In the course
of several lengthy discussions, both on and off the record, each of the parties had occasion
to express awareness of the fact that the Respondent's records, available in Fairbanks, were
incomplete. A recess in the case, and an adjournment to Anchorage, to facilitate an inspection
of the records there, was discussed informally: no one, however, insisied upon a recess or
adjournment for that purpose. Everyone seemed to be in agreement that such a course of
action would have involved inconvenience and difficulty, and that a search of the Anchorage
records might not even prove useful. In effect, the parties were willing to "take a change"
that the record, as it was finally elaborated, would be adequate to sustain their respective
contentions. Analysis has merely indicated that the General Counsel's willingness to rest
upon the record, as the best which the parties could reasonably be expected to produce, has
left his burden unsatisfied.
In the light of the unresolved ambiguities in the record with respect to the size of the
appropriate unit and the identity of the employees who composed it, at material times, I
am constrained to find that the Union's status as the representative of an employee majority
has not been established by a preponderance of the evidence.
The Alleged Refusal to Bargain
In view of my determination with respect to the Union's failure to establish its repre-
sentative status, I have found it unnecessary to consider, at length, the questions suggested
by the record in connection with the Respondent's alleged refusal to bargain. The available
evidence indicates the existence of substantial issues in this connection: Whether the
Union's initial letter was adequately addressed, in view of the Union's broad unit contention,
FAIRBANKS TRANSIT SYSTEM, INC. 1 007
and whether the rights of the Respondent after its receipt by Superintendent Hayden should
be considered as affected in any way by the Union's failure to designate both employers of
the individuals it claimed to represent by their proper corporate names, whether, in the
light of the partial misnomer involved, the letter ought to be regarded as a properly addressed
demand for recognition--in an appropriate unit, as originally described by the Union, or as
herein found; 15 whether the Union's letter, by its terms, effectively put the Respondent
upon notice of that organization's claim to represent an employee majority, and whether
it implied a demand for recognition and the inception of negotiations; 16 whether, as the Re-
spondent contends, the Union's failure to offer any proof of its majority status and the
simultaneous initiation of its representation case absolved the Respondent of any obligation
to answer the letter in question, and whether the course of conduct attributed herein to the
Respondent, after the 20th of January, should be taken as indicative of a desire to dissipate
the Union's majority, and as indicative of a rejection by the Respondent of the collective-
bargaining prmciple,17 If the record, as it stands, could be said to require a disposition of
these issues, many serious questions of fact and law, some of them argued at length by the
Respondent's counsel, would be presented. In the light of my conclusions as set forth in this
report, however, these questions need not be answered now. It will be recommended that the
complaint, insofar as it alleges an illegal refusal to bargain on the part of the Respondent,
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE.
The activities of the Respondent set forth in section III, above, which occurred in con-
nection with the operations of the Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce
V. THE REMEDY
Since it has been found that the Respondent engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom, and that it take certain affirmative
action, including the posting of appropriate notices, designed to effectuate the policies of
the Act
Specifically, since it has been found that the Respondent engaged in certain acts of inter-
ference, restraint, and coercion, it will be recommended that the Respondent cease and
desist from such conduct.
It has also been found that the Respondent discriminatorily discharged Verla Bowen,
Clare Russell, Wilfred Plumondore, Alice Jean Brink, and Marcel Perez, on the dates
specified elsewhere in this report, and that it has since failed or refused to reemploy them,
because they engaged in Union activities I shall, therefore, recommend that the Respondent
offer each of these employees immediate and full reinstatement to his or her former or
a substantially equivalent position, without prejudice to his or her seniority or other rights
and privileges See The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827, for a definition of the phrase "former or substantially equiva-
lent position" as here used It will also be recommended that each of them be made whole
for any loss of pay and other incidents of the employment relationship which he or she
may have suffered by reason of the Respondent's discrimination, by the payment to each of
a suns of money-equal to the amount which each normally would have earned as-wages be-
tween the dates on which their discriminatory treatment began and the date of the reinstate-
iSSee Peterson Construction Company, Inc., 106 NLRB 850; DeLuxe Motor Stages, 93NLRB
1425; National Works, General Chemical Division, Allied Chemical and Dye Corporation, 91
NLRB No 181 (not reported in printed volumes of Board Decisions and Orders); The Packers
Association of Chicago, et al., 73 NLRB 627; L S Broach Mfg Corp., 53 NLRB 536.
i6See Joy Silk Mills, Inc., v. N. L R B., 185 F. 2d 732 (C A , D C.), cert. denied 341
U S 914.
17 See Joy Silk Mills, Inc., v. N L. R B., supra, Howell Chevrolet Company, 95 NLRB
410; but cf. Glass Fiber Moulding Co., 104NLRB 383 and N L R. B v. Crown Can Company,
138 F. 2d 263 (C A. 8).
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment offers recommended in this report, less net earnings, if any, during that period.
Compare Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7. The pay losses of the employees should be computed on a quarterly
basis, in the manner established recently by the Board. F. W. Woolworth Company, 90 NLRB
289; N. L. R B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
The unfair labor practices attributable to the Respondent are, in my opinion, closely
related to the other unfair labor practices proscribed by the Act, and a danger of their
commission in the future is to be anticipated from the conduct of the Respondent in the
past. The preventive purposes of the statute would be thwarted unless the order in this
case is coextensive with the threat. In order therefore to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of the unfair labor practices
and thereby to minimize industrial strife which burdens and obstructs commerce, and
thus to effectuate the policies of the Act, it will be recommended that the Respondent cease
and desist from infringement in any other manner upon the rights guaranteed in Section 7
of the Act, as amended.
In order to secure' expeditious compliance with the recommendations I have made in re-
gard to back pay and reinstatement, I shall recommend, finally, that the Respondent upon
request make available to the Board and its agents, for examination and copying, all pertinent
records.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the case, I
make the following conclusions of law:
1. The Respondent is an employer, within the meaning of Section 2 (2) of the Act, engaged
in commerce and business activities which affect commerce, within the meaning of Section
2 (6) and (7) of the Act, as amended.
2. Teamster, Chauffeurs, Warehousemen and Helpers Union, Local No. 183, AFL is
a labor organization within the meaning of Section 2(5) of the Act, as amended.
3. By interference with, restraint, and coercion of its employees in their exercise of
rights guaranteed by Section 7 of the Act, the Respondent engaged in and has continued to
engage in unfair labor practices within the meaningof Section 8 (a) (1) of the Act, as amended.
4. By its discrimination with respect to the employment tenure of Verla Bowen, Clare
Russell, Wilfred Plumondore, Alice Jean Brink, and Marcel. Perez, and by its failure or
refusal to reinstate these employees after their separation from its employ, the Respondent
has engaged in and continues to engage in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act, as amended.
5. All of the busdrivers employed by the Respondent in the area of Fairbanks, Alaska,
exclusive of supervisors as defined in the Act, constitute a unit appropriate for the purposes
of a collective bargain within the meaning of Section 9 (b) of the Act, as amended.
6. The Respondent has not engaged in any unfair labor practice within the meaning of
Section 8 (a) (5) of the Act, as amended, by any failure or refusal to bargain collectively
with the Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 183, AFL,
on or about January 20, 1953, or at any time thereafter, as the exclusive representative
of its employees in a unit appropriate for the purposes of a collective bargain.
7. The unfair labor practices found are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act, as amended.
Recommendations omitted from publication.]
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEU1.S, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L., LOCAL NO. 710 and RAY SIMMONS Case No.
14-CB-198. May 24, 1954
DECISION AND ORDER
On December 24, 1953, Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above-entitled proceed-
108 NLRB No. 134.