Fort Worth Transit Co., Inc.

National Labor Relations Board - Board Decisions

Jul 3, 1962

137 N.L.R.B. 1146 (N.L.R.B. 1962)

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. (1) All employees engaged in servicing, repairing, maintaining,
and assembling automotive equipment, excluding drivers, plant main-
tenance employees, powerplant employees. at Charlestown, Massa-
chusetts, office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
(2) All employees of the maintenance department engaged in serv-
icing, repairing and maintaining plant machinery and equipment,
excluding drivers, automotive maintenance employees, powerplant em-
ployees at Charlestown, Massachusetts, office clerical employees, pro-
fessional employees, guards, and supervisors as defined in the Act.'
(3) All production and distribution employees, excluding all other
employees and supervisors as defined in the Act.
If a majority of employees in voting groups (1) and (2) vote
respectively for IAM Lodges 1898 and 264, they will be taken to have
indicated their desire to constitute a separate appropriate unit or
units, which, in the circumstances, the Board finds to be appropriate
and the Regional Director shall certify the union or unions winning
such elections. If the employees in both groups (1) and (2) vote for
separate representation and if a majority in voting group (3) vote for
Teamsters Local 380, the Regional Director shall certify Local 380
as the bargaining representative of a separate unit of production and
distribution employees, which unit the Board finds under the circum-
stances to be appropriate.
However, if a majority of employees in groups (1) and (2) do not
vote for separate representation, their ballots shall be pooled with
those for group. (3). If a majority in the pooled group vote for
Local 380, it shall be certified as the representative of the employees
in such group, which, under those circumstances, the Board finds to
be an appropriate unit. If the votes are pooled, votes cast for Lodges
1898, or 264 shall be counted neither for nor against Local 380; all
other votes shall be given their face value.
[Text of Direction of Elections omitted from publication.]
8 The TAM would exclude employees who operate and maintain boilers and employees
classified as porters at Quincy. It appears that employees in these classifications may be
the type customarily included in plant maintenance units. However , as the record con-
tains insufficient evidence upon which a final determination can be made in this regard,
we shall allow such employees to vote by challenged ballot.
Fort Worth Transit Co., Inc. and Amalgamated Association
of Street , Electric Railway and Motor Coach Employees of
America, AFL-CIO. Case No. 16-CA-1559. July 3, 1962
DECISION AND ORDER -
On April 23, 1962, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
137 NLRB No. 125.
FORT WORTH TRANSIT CO., INC. 1147
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 Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on October 31, 1961 ( as later amended ), by the Amal-
gamated Association of Street , Electric Railway and Motor Coach Employees of
America, AFL-CIO, herein called the Union , the General Counsel of the National
Labor Relations Board , through the Regional Director for the Sixteenth Region
(Fort Worth, Texas), issued a complaint dated November 27, 1961, alleging that
Fort Worth Transit Co., Inc., herein called the Respondent or the Company, has
engaged in unfair labor practices in violation of Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended by the LaboraManagement Reporting and
Disclosure Act of 1959, herein called the Act. The answer of the Respondent admits
certain allegations of the complaint but denies the commission of any unfair labor
practices . Pursuant to notice , a hearing was held before Trial Examiner Reeves R.
Hilton at Fort Worth, Texas, on January 15 and 23 through 26, 1962. The parties
were represented by counsel and were afforded opportunity to adduce evidence on
the issues herein, to present oral argument , and to file briefs . About February 27,
1962, I received briefs from counsel which I have considered fully.
Upon the entire record in the case, and from my observation of the witnesses and
their demeanor , I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Company, a Texas corporation, maintains its office and principal place of
business at Fort Worth, Texas, where it operates a public transit system and related
services. In the year preceding the issuance of the complaint the Company pur-
chased goods and materials valued in excess of $50,000, which were transported to
it from States other than the State of Texas. In the same period the Company
received in excess of $500,000 in revenue for its services. I find, contrary to the
Company's denial, that it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.'
1In a prior case the Board found the Company was subject to the jurisdiction of the
Act and that it had engaged in unfair labor practices in violation of Section 8(1) and (3)
of the Act, 80 NLRB 1422 In proceedings to enforce the order the Circuit Court of
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues presented are whether the Company: (1) discriminatorily discharged
two employees and (2) interfered with, restrained, and coerced its employees by
unlawful interrogations, acts of surveillance, and promising benefits to employees if
they renounced the Union.
B. The Company 's management officials and supervisory staff
At times material herein the following persons held the title appearing after his
name: W. A. Robertson , president ; A. J. Rowe , vice-president ; C. W. Wilkerson,
secretary-treasurer ; and D . C. Melear, superintendent.
The answer admits that the following individuals were, and are, employed as
inspectors and are supervisors within the meaning of the Act: C. M. Norris;
Homer Pirkle; 2 W. G. Butts; D. C. Bruton ; and E . B. Jopling.
The complaint also alleges that Bill Kirkley , 10. W. Haw , and Bill Fielder, as
supervisors , and F . C. Dobson, E. R. Stepps , and H. L . Faulkner, as agents, of the
Company engaged in certain conduct proscribed by Section 8(a)(1) of the Act.
The answer denies these allegations of the complaint . The status and conduct of
these individuals is discussed below.
C. Organizational activities
Robertson, as a witness for the General Counsel under Rule 43(b), stated he
first learned of organizational activities around June or July 1961,3 when he received
a letter from John W. Connally, International representative of the Union, informing
him that the Union was conducting an organizational campaign among the employ-
ees. Robertson advised Melear and Wilkerson of receipt of the above letter and told
them that under the law the employees had a perfect right to organize and the
Company had no right to coerce, threaten, or abuse the employees in any manner.
Robertson directed Melear and Wilkerson to issue instructions to this effect to all
supervisors.
While the General Counsel characterizes the union campaign as an intensive one,
with employees being divided into prounion and antiunion groups, not a single witness
gave an outline of the campaign describing the date and circumstances of its com-
mencement, the date of initial meetings, the leaders in the movement, or the manner
in which the drive for members was conducted. The General Counsel concedes the
pertinent union meetings in this case were held primarily in October.
Robertson admitted he saw some letters or literature which had been distributed
by the Union, as well as some employees who opposed to organization, especially a
letter signed by some 10 employees addressed to Connally revoking, as of August 8,
their signed application and/or authorization cards submitted to the Union. Dobson
admitted he prepared this letter and sent a copy thereof to the Regional Office about
August 10.
The Board's records show that about November 3, 1961, the Union filed a repre-
sentation petition (Case No. 16-RC-3029) and that an election was conducted on
January 3, 1962, which the Union lost.
D. Alleged acts of interference, restraint, and coercion
1. Bill Fielder
The complaint states that Fielder on two occasions, about July 27 and August 17,
questioned an employee regarding his talking about the Union and signing a union
card.
Appeals for the Fifth Circuit sustained the Board's jurisdictional findings and conclu-
sions but denied enforcement of the order, 187 F 2d 792 The present Union was i4
volved in the case.
3 His name erroneously appears In the complaint as Homer Perkale The complaint
is amended to show the correct spelling of his name
'All dates refer to 1961, unless otherwise stated.
FORT WORTH TRANSIT CO., INC. 1149
L. D. Peel, busdriver with more than 15 years' service, stated that about July 27,
he was in the company clubroom 4 talking to three drivers, Coy D. Wade, Jesse
Redell , and M . T. Ratliff, and after they left Fielder motioned him to come into
Melear 's office, which he did. There, Fielder asked if they were talking about the
Union and Peel answered he was no "stoolpigeon," "don't count on me a-telling you
anything." That ended the conversation and Peel left the office. Fielder, according
to Peel, was "over the schedule department" and, at the time in question , was acting
as division superintendent in Melear's absence. Sometime later Fielder called Peel
to Melear's office to discuss a charter run and Fielder, in a friendly way, asked Peel
if he had signed up with the Union. Peel laughed it off, gave no answer , and left.
Wade, a busdriver with 20 years' service, said Peel informed him of his conver-
sation with Fielder the morning after it had occurred. The following afternoon
Wade met Fielder in Melear's office and repeated Peel's version of his talk with
Fielder. Fielder denied having any such conversation with Peel. Wade made it clear
he would talk to anyone in the clubroom on any subject and if Fielder interfered
in his affairs he would whip him. Fielder stated he was inquiring about union activi-
ties and the talk ended with Fielder saying he still considered Wade as a friend,
although he was not sure Wade felt the same way toward him. Like Peel, Wade said
Fielder was in the schedule department and that he acted as division superintendent
in Melear's absence. About a week later Wade mentioned his talk with Fielder to
Wilkerson but Wilkerson refrained from making any comments.
Fielder worked for the Company about 20 years as bus operator, instructor, and
dispatcher and at the time in question was director of schedules. In the latter ca-
pacity he was responsible for making traffic checks to determine the spacing and
schedules of buses on various routes. On occasions he also acted as superintendent
in Melear's absence and he was acting in that capacity around July 27.
On the above date Fielder was using Melear's office, and one of the dispatchers,
Faulkner, reported that Wade was griping to some drivers in the clubroom. Wade
had left to take out his run so Fielder asked if any of the other drivers were still
around and the dispatcher said, "Yes, Peel." Fielder called Peel to the office and
asked what Wade was talking about. Peel said he did not know, that he was not
listening to him. Fielder denied he mentioned the Union in his conversation with
Peel or that Peel remarked he was not a stoolpigeon. Fielder also denied having any
conversation with Peel in which he inquired about the Union or if Peel had signed
up for the Union.
The next day Wade asked Fielder why he was making inquiries about him and
Fielder replied he had heard Wade had been griping to some of the drivers. Wade
said he had been talking to them about personal affairs, which did not involve com-
pany business. Fielder stated if it was personal business he did not care to hear
about it and the conversation ended. Fielder denied he brought up the subject of
the Union to Wade or that Wade threatened to whip him.
There is nothing in the record indicating Peel or Wade were interested in the
Union or active on its behalf around July 27.
Thus, Peel, when asked when he signed a union card, replied he could not recall
the date he signed the first one but he signed a second card on October 3. Later,
Peel stated that sometime in September he was in the barbershop next to the club-
room, when driver N. J. McLean told Wilkerson he had signed up with the Union.
Peel declared he, too, had signed and was 100 percent for the Union. Wilkerson
made no reply to these volunteer statements.
McLean testified concerning the incident in the barbershop, which he stated took
place in the early part of September. Prior to that time McLean had had talks with
Wilkerson about receiving a 10-year safety award and during these talks McLean
strongly hinted he would join the Union if denied the award. McLean, with Peel,
met Wilkerson in the barbershop and Wilkerson inquired if the 10-year award had
been straightened out and McLean stated they decided not to give it to him. Mc-
Lean then declared he had joined the Union, was a strong unionman , and wanted
everyone in the shop to know it. He then asked if everyone had heard and Wilkerson
answered, they had. At that time Peel told Wilkerson, "That goes for me, too."
Wade never did say when he signed a union card or indicate what, if any, part he
played in organizing the drivers. Around September 21, Wade, at Wilkerson's sug-
gestion, met with Robertson and Wilkerson. Driver John Langley requested Wade
to inform Robertson and Wilkerson that he had joined the Union, but Wade sug-
gested he come along and tell them himself. Langley attended the meeting. Wade
said Wilkerson had little to say but Robertson asked what the Union could give
them that the Company could not give them. Wade answered he believed the Union
s The clubroom is also used by the drivers in checking in and out on their runs
Melear's office and dispatcher's office are located in or adjacent to the clubroom.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could obtain a little more money, some benefits, and more job security. Robertson
said the Company could not afford any wage increase and produced books for his
inspection. Wade looked at the books, as a courtesy to Robertson, but they meant
nothing to him since he was not an accountant. Wade volunteered the information
he had signed a union card and Robertson said that it was his privilege to do what-
ever he wished. Robertson added he heard a number of drivers had signed up, but
mentioned no names.
Langley said he attended the meeting at Wade's invitation. According to Langley
the meeting was "just a regular session" during which the group discussed problems
of the Company, seemingly, including the dissatisfaction of one employee. Robert-
son asked why the men were discouraged about problems of the Company and men-
tioned he heard the Union was moving in. Both Langley and Wade announced they
had signed up with the Union and Robertson said he was aware that they had. As
they were leaving Robertson said he would guarantee no one would be fired for
engaging in union activities. Apparently, Langley joined the Union in early
September.
There is no doubt that Peel, McLean, Wade, and Langley attended union meetings
in October.
While the General Counsel, in his brief, stresses the July 27 incident described
above, he makes no mention of any alleged interrogation by Fielder on or about
August 17. I find no evidence to support the latter allegation.
2. Homer Pirkle
Pirkle is alleged to have interrogated an employee about August 3.
T. E. Knowles, a driver, said he had signed a union card sometime before August 3,
but "renewed" his application about August 5. Knowles stated that on August 3,
he finished his run and went into a cafe to get a cup of coffee where he met Pirkle,
his supervisor. Pirkle said he wanted to talk to him about the Union and when
Knowles started on his return run, Pirkle boarded the bus. Pirkle told Knowles he
was one of the eight instigators of the Umon, which Knowles denied. That ended
the conversation, which lasted 3 or 4 minutes, and Pirkle left the bus. The next day
Knowles mentioned the incident to -Melear who stated he knew nothing about it, he
had not told Pirkle to speak to him.
About August 6 or 7, Knowles, at his request, met with Robertson, Wilkerson, and
Rowe for the purpose of informing them that he had joined the Umon after Pirkle
had accused him of being a member. Robertson said it was a privilege to join the
Union. Rowe asked if he could get his card back and Knowles said he did not think
that he could. Knowles concluded by saying he was mixed up and after Pirkle's
accusation he joined the Union.
E. R. Craig stated that about August 3, Pirkle boarded his bus and sat directly
behind him. Pirkle said he was surprised that Craig, his son, and his brother, who
worked for the Company, had signed up with the Union. Craig asked where he got
his information and Pirkle said from a reliable source. Craig questioned the source
of his information and the conversation ended without Craig admitting or denyng
Pirkle's assertion.
Richard L. Jacks stated that in October or November, Pirkle boarded his bus and
in the presence of one passenger already aboard, a lady, Pirkle asked what he thought
of the Union. Jacks explained how the Union could help the men and he and Pirkle
had a brief conversation on that point. The passenger then asked Jacks if they
were not already organized and when he answered, "No," she said, "You should be."
That ended the conversation between Jacks and Pirkle.
Pirkle stated that on one occasion Knowles approached him in front of a cafe and
remarked he thought the Union was organizing the men, but he was not having any-
thing to do with it. Knowles then asked if Pirkle had not told him that some 81
men had already signed up and Pirkle denied ever making any such statement, that
he did not know anyone who had signed up. Pirkle denied he accused Knowles
of being one of the instigators of the Union.
Pirkle admitted he rode with Craig at times but denied that he ever told him that
he was surprised that Craig, his son, and his brother had joined the Union.
Pirkle admitted he rode home with Jacks on occasions and he recalled the time
the lady passenger made a remark about organization. Jacks, on this occasion,
according to Pirkle, said he had been a member of a union at one time but he left
the union and then helped to break it up. The lady then remarked she thought the
drivers were organized and that ended the conversation. Pirkle denied that he
brought up the subject of the Union at any time or that he expressed any opinion
either for or against the Union.
PORT WORTH TRANSIT CO., INC. 1151
3. O. W. Haw and Bill Kirkley
In brief the complaint alleges that about September 27, Kirkley questioned an
employee regarding a union meeting and Haw did likewise, about October 3, plus
threatening the employee with loss of his job.
Counsel stipulated that Haw, regular dispatcher, was on military leave at the time
of the hearing, having been called to active duty in the Armed Forces at some undis-
closed date. Kirkley replaced Haw as dispatcher.
Kirkley stated that he acted as temporary dispatcher and busdriver from about
July to the time Haw was called to active duty, about the second week in September,
when he assumed Haw's duties. Kirkley and another dispatcher, Lee Jopling,
worked under W. M. Faulkner, trainmaster. Kirkley voted in the election held on
January 3, 1962.
W. J. Williamson stated he attended a union meeting the night of October 2, and
the next evening Haw telephoned him at his home to say that he knew Williamson
had been going to union meetings. Williamson admitted he had attended meetings
whereupon Haw said, "If you don't go down there and tell them guys you are going
out, get out of the Union, you are going to lose your job." Williamson replied he
would make his own decision and the conversation ended.
Williamson said he and Kirkley had several conversations about the Union. The
day after Williamson attended a union meeting, Kirkley, in a joking way, asked,
"How many was down there? Was the doors busting open? and stuff like that."
Williamson joked back and told Kirkley to come to the meetings, he was welcome.
Haw did not testify at the hearing.
Kirkley admitted having a conversation with Williamson along the lines related
by him.
4. Acts allegedly committed by Supervisors Wilkerson, Norris, Melear, and Bruton
and Agents Dobson, Stepps, and Faulkner
In substance the complaint states that at various times the above -named super-
visors interrogated and threatened employees, promised benefits to them, and main-
tained surveillance of union meetings and that the above-named agents acted as
surveillants of union meetings.
Knowles, having already informed Robertson and Wilkerson about August 6 or
7 that he was a union member (supra), stated that around August 17 Wilkerson asked
if Redell would talk with him and Knowles expressed the belief that he would.
Knowles made arrangements and that afternoon he and Redell met with Wilkerson
and Robertson. Wilkerson pointed out the financial difficulties of the Company were
such they could not afford the Union. Robertson agreed. When asked what was
said about the Union, Knowles replied Wilkerson wanted to know if Redell was
a member thereof. Redell did most of the talking and, in response to Wilkerson's
inquiry, said he thought Peel and Wade would be willing to talk to him. Apparently
that ended the meeting.
Redell, who had been with the Company almost 18 years, stated that Knowles
arranged the above meeting which lasted for about 2 hours. He related that after
discussing working conditions and several other matters they talked about the
Union. Wilkerson asked Redell if he was a member of the Union and he admitted
that he was. Wilkerson thereupon inquired if he knew any others who had signed
up and he answered he did not know of anyone. When asked if Peel was a member,
Redell told Wilkerson he would have to talk with Peel. Wilkerson then asked if
Peel and Wade would talk to him and Redell said he thought they would. The
meeting then ended.
Sometime later, about October 23, Redell attended the safety award dinner at
Eagle Mountain Lake. On this occasion Wilkerson spoke to Redell, privately, and
asked him to get out of the Union because he had too many friends who were
opposed to organization. Redell said that was true but he also had a lot of friends
who favored the Union. Wilkerson repeated his request that Redell leave the
Union and added the Company had planned a future for him before he joined the
Union and that the Union could not win. Redell said he would stay with the Union
and Wilkerson asked why. Redell replied that Wilkerson, Robertson, and Rowe
would not be with the Company much longer and the drivers needed the Union to
help them. The conversation then ended.
McLean testified that in the latter part of September, following his talk with
Wilkerson in the barbershop (supra), Wilkerson asked if he had changed his mind
about the Union and McLean said he had not.
Wilkerson did not testify at the hearing.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Langley testified that around the first of September he was walking toward the
garage when Norris called him over to the car in which he was seated. Norris
asked if any of the unionmen had been out to see him and Langley replied they
had not. That ended the conversation.
About September 17, Langley was changing his head signs at the end of his run,
the Army depot, when Norris drove up in a company car. Norris remarked, "I
understand you have changed your mind and signed up with the Union" and Langley
answered, "Yes, sir. That's right, Mr. Norris." Norris asked why he had signed
up and Langley gave his reasons why he believed it advantageous to have the Union.
Norris replied that if the Union "took over" the Company "would go broke and we
would all be without jobs." Langley said he was delayed 12 minutes on his sched-
uled run.
About September 30, Langley checked in his run and went to the clubroom.
Melear came up to him and asked if he "had been a good boy." Langley said, "I
have been a bad boy. I am up to my neck." Melear stated, "Well, we are going
to have to put a little more pressure on it and start watching you closer." Langley
said that thereafter the inspectors followed him practically everyday.
T. T. Sample, driver for about 7 years, stated that he attended a union meeting
the night of October 10, and the next afternoon he met Norris as they were parking
their cars. Norris inquired if Sample was married and had a family and Sample
said yes. Norris then queried, "You are not looking for another job, are you?"
and Sample replied, "No. Why?" Norris stated he heard Sample was "all signed
up." Sample explained he attended the union meeting the night before but he did
not sign up. Norris said "a certain source" reported he had signed up, which
Sample again denied and asserted his information was not true. The conversation
then ended.
Norris recalled a brief conversation with Langley about September 17, during
which he inquired about the Union but denied stating that the Company would go
broke if the Union came in. On direct examination he testified he asked how the
union boys were treating him and Langley replied he was not having anything to do
with it, that he just bought a new home and car and could do nothing but work.
Obviously, Norris was confusing the two conversations he had with Langley. On
cross-examination Norris said that he brought up the conversation of September .17,
by telling Langley he had heard that Langley had changed his mind about the
Union and was now working for it. Langley said that was true. Norris pointed out
that Langley had previously told him he was not interested in the Union so he wanted
to know what had made him change his mind. Langley stated he changed his mind
because he did not like the way Dobson had acted. He gave no further explanation
regarding Dobson's actions.
Norris recalled the conversation with Sample during which he asked Sample if he
was married and inquired of his union affiliation. Norris said he told Sample, "If
the boys put the Union in and ran it as they said they was going to run it that a guy
like him with no more seniority than he had would be-would certainly have to work
the extraboard."
Melear denied having any conversation with Langley, as asserted by Langley.
Peel testified the Union had arranged for a meeting to be held on the night of
October 40 at the Park Plaza Motel located on East Lancaster Street. Shortly
before 8 o'clock Peel was standing in front of the motel and saw Norris drive past in
a company car about 15 or 20 miles an hour and look toward the motel. A few
minutes later he saw Norris again drive past, this time going in the opposite direction.
Peel said the car was readily distinguishable since it was painted the same color as
the buses. Peel did not see anyone in the car with Norris.
Langley stated he arrived at the motel about 8 o'clock and saw Norris and Clifford
Wyatt, driver on the Lancaster run, standing at the rear of a bus parked near the
motel. Norris and Wyatt had the flaps raised, indicating some engine trouble, and
Norris had a flashlight. However, instead of directing the light toward the engine
he was flashing it on the driveway leading to the motel. Peel said they were still at
the bus when he entered the motel.
McLean said the bus was parked across the street from the motel. Otherwise he
testified substantially the same as Langley.
E. H. Tolan, driver for about 8 years, stated he arrived at the motel about 8:15
and saw Norris drive by at an estimated speed of 20 to 25 miles an hour. Tolan did
not see any bus parked near the motel.
J. L. Dunlap, driver for 3 years, stated he and Jacks went to the October 10
meeting, arriving there about 9 o'clock. As Dunlap and Jacks were entering the motel
he saw Norris and Dobson sitting in a company car parked about 100 feet from the
motel. Dunlap and Dobson were on friendly terms, they attended Baptist Seminary,
and the following morning Dobson invited Dunlap to stop by his home for coffee,
FORT WORTH TRANSIT CO., INC. 1153
which was a common practice. Dunlap dropped by his home and, after engaging in
general conversation, Dobson asked how many persons were present at the meeting
and Dunlap told him. Dobson then asked how long he stayed and Dunlap gave the
approximate time of his arrival and departure. Dobson thereupon said Dunlap ar-
rived for the meeting at 9:02 and left at 10:08. Seemingly, that ended the conversa-
tion and the meeting. Prior to this Dunlap knew that Dobson had changed his po-
sition concerning the Union and had sponsored a petition seeking withdrawals from
the Union.
Jacks said as he and Dunlap were entering the motel he saw two men in a company
car "cruising" around. Jacks could not identify the men. When Jacks left the
meeting he saw the car parked some 200 or 300 feet from the motel (apparently on
the opposite side of the street) and recognized two men sitting in the car as Norris
and Dobson.
Williamson attended the meeting of October 10, but could not recall seeing any
company car or officials on that occation. However, Williamson said he went to the
motel to attend a union meeting on October 2 and saw Norris and Dobson drive
by in a company car.
Peel testified the Union held a meeting the night of October 20, at the union hall,
located at 601 West Pennsylvania Avenue. Peel and other drivers were standing
in front of the hall about 7:50 when Norris drove slowly by and sounded his horn.
Bruton also drove past the hall, apparently a few minutes later. Peel said he saw
Bruton but once that night, but Norris also drove past the hall about 10 o'clock,
after the meeting had ended.
Jacks related he went to the above meeting and saw Norris drive past the hall on
two occasions, Bruton drive by once, and a third company car pass by but he could
not identify the driver.
Williamson recalled a meeting at the union hall when Norris drove past, blew
his horn, and waved to some of the drivers standing in front of the hall.
Wade said he attended meetings at the Park Plaza Motel but never saw any com-
pany officials in the vicinity thereof. However, he was standing in front of the
union hall one night and observed a company car drive past but he could not recognize
the driver. This car was the one usually used by Bruton.
Norris stated the Company has maintained four cars for its inspectors which were
painted red with a cream or light gray top and bore the Company's insignia. Norris
said he was aware of the dates and places of union meetings for the drivers always
passed the word around in advance and practically everyone knew of the scheduled
meeting or meetings. Norris stated he had no interest in the meetings, although
he may have been a little curious, and "the chances are that I passed" the meeting
places but not for the purpose of finding out who was attending the meeting. On
cross-examination the General Counsel produced an affidavit, dated November 17,
given by Norris to a Board agent and he acknowledged the truthfulness of the fol-
lowing excerpt therefrom:
In the early part of October on one of my regular cruises of Lancaster Street
(there's no set time for these cruises), I thought I recognized some of the cars
parked in front of one of the motels. As there had been rumors of a union
meeting, I naturally was curious and looked around. There was no one in the
cars. I did not stop nor did I see anyone that I recognized.
Norris admitted he may have driven past the motel on October 10, but he could not
recall any broken-down bus on that date. At the same time he conceded he might
have had a call to check a bus for minor trouble. Norris denied that he ever
parked his car near the motel and denied that Dobson ever rode with him in a com-
pany car. Norris admitted he may have passed the union hall and sounded his
horn and waved to drivers standing in front of the building. Since the Company
operates buses on Pennsylvania Avenue and Lancaster Street Norris frequently uses
these streets.
Bruton stated his duties required him to drive all over the city and he could have
passed the union hall or the Park Plaza Motel while meetings were in progress.
Dobson has been a busdriver for about 3 years. Prior to and during his em-
ployment Dobson was a student at Southwestern Baptist Theological Seminary and
graduated shortly before the hearing. Dunlap also graduated from the seminary.
Dobson signed a union card, dated June 19, and attended one union meeting which
was held at Wade's house around July. Dobson admitted that he sponsored the with-
drawal petition mentioned above and that he sent similar petitions to Connally and
the Board covering two additional withdrawals about September 14 and 27, respec-
tively. Dobson said that subsequent to July, he was invited to attend union meet-
649856-83-vol. 187-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings but he never actually attended any of them . However, he did go to the meeting
places on three or four occasions but remained outside.
Dobson said he was invited to the meeting of October 10 at the motel , and was told
by Dunlap , or some of the drivers , that a majority of the men were in favor of the
Union. He drove to the motel that evening, parked his car, and observed the men
entering the premises . Dobson concluded a majority of the drivers did not show up,
so he did not go to the meeting . He denied he was with Norris at this meeting or any
other meeting . Dobson admitted Dunlap came to his home the next morning and
that he asked Dunlap to leave the Union and told Dunlap the exact time he entered
and left motel.
The complaint alleges that about November 9, Dobson , Faulkner, and Stepps en-
gaged in surveillance of a union meeting.
Dunlap testified the Union held a meeting in the latter part of October at the Park
Plaza Motel and that he introduced the speaker on this occasion . Prior to the com-
mencement of the meeting Dunlap observed a car parked across the street from the
motel, so he walked toward it and saw it was occupied by Dobson , Faulkner, and
Stepps and their wives . Dunlap had no conversation with them. Admittedly, all
these men were employed as bus operators.
Dobson said he and his wife drove to the motel the night in question where they
met, without prearrangement , Faulkner and Stepps and their wives . All of them got
into Dobson's car where they remained about 5 minutes and then left to get some
coffee. Upon their return to the motel area the Faulkners and Stepps left and drove
off in their own cars.
E. The discharges
1. W. J. Williamson
Williamson was discharged by Melear on October 13 for failure to complete his
scheduled run.
Williamson was first employed by the Company on March 21 , 1956, and dis-
charged August 29, 1956, for failure to report for work. He was rehired Decem-
ber 15, 1956 , and discharged May 15 , 1957, for the same ,reason. On November 13,
1959, he was rehired and discharged on October 13, 1961, for the reason stated
above.
Williamson signed a union card about September 21, and, as stated above, attended
union meetings . At the time of his discharge Williamson did not have a regular run,
nor was he on the seniority list, but was on the extra board, which means he took
any run that was available when he reported for work. The record shows, and the
General Counsel concedes , that during 1961 company inspectors placed "yellow
slips" or warning slips in Williamson 's personnel file, as follows ( copies of the slips
were not given to the drivers) :
February 5______________________ Accident ; cautioned.
February 26_____________________ Accident; cautioned.
March 20_______________________ Accident , not at fault.
April 4_________________________ Accident, not at fault.
April 11________________________ Drinking, two-day suspension.
May 16------------------------- Accident , not at fault.
July 7__________________________ Complaint, cautioned.
July 12 _________________________ Accident , cautioned.
August 5------------------------ Accident ; another bus hit rear of his bus.
September 7--------------------- Swapped runs; cautioned.
September 14 -------------------- Watching out for passengers and running
good schedule , cautioned.
October 59_________ ______________ Deviated from route , cautioned.
October 6----------------------- Driving in excess of 50 miles per hour.
October 6_______________________ Late for work.
The General Counsel in his brief concedes that on October 5, Williamson admitted
to Norris that he had "deviated " from his route but it was necessary in order for him
to get to Bluebonnet Circle. There is no doubt Williamson missed some passengers by
reason of his deviation and Norris said another driver would pick them up. William-
son admitted that on October 6, he overslept and reported late for work. On the
same day Williamson said he was stopped by Inspector Jopling, who accused him of
driving 48 miles per hour on the freeway . Apparently , Williamson did not deny
Jopling's assertion , although he did not know whether he was actually driving 48
miles per hour.
On October 11, Williamson 's final trip was to South Summit . From there he
would deadhead back to the garage , being due in about 6:40 p .m. Williamson ad-
FORT WORTH TRANSIT CO., INC. 1155
mitted he did not complete his trip but upon discharging his last passenger at Berry
Street, about five or six blocks from the terminal point of his run, he turned around
and drove to the garage, arriving there ahead of his schedule. Upon his arrival at the
garage Norris asked if he had completed his run and Williamson admitted that he
had not. Norris replied, "You guys are going to have to start carrying these sched-
ules out." Williamson explained he discharged his last passenger at Berry Street,
that he could not have brought back any passengers, so he headed for the garage.
Norris stated, regardless of that, he was supposed to go to the last point on the
run. Williamson worked the next day but was discharged on October 13 by Melear
for failing to complete his run. Williamson said that in the past he had cut off on his
final runs upon discharging his last passenger, for he had heard "through the grape-
vine" that it was all right to do so. He admitted no supervisor (except for a few
specific occasions) had ever told him that cutoffs were permissible or that he had ever
seen any notices covering this practice on the company bulletin board.
Tolan testified that around October 11, he returned to the garage about 5 minutes
early and Norris asked if he had completed his last run. Tolan admitted he had cut
off one block of his run, as he had on other occasions. Norris told him that from
now on to be sure and go to the end of his run. Tolan admitted no inspector or
supervisor ever stated it would be all right to cut off on his last run, although one
instructor (a driver), had told him that he could do so.
Wade said that on some runs he headed for the garage after discharging his last
passenger, without going to the end of the line. Admittedly, no supervisor ever
issued any such instructions, but Wade claimed he had read a bulletin to that
effect posted on the company bulletin board.
McLean said he saw a bulletin or notice posted a few years ago which stated
that on the last trip of a run the driver, after discharging his last passenger, would
go directly to the garage, without completing his trip.
Langley, testifying on this point, said "The policy" was that after discharging the
last passenger the driver should take the shortest cut to the garage in order to save
mileage.
Norris testified that on October 5, Williamson came in 5 minutes ahead of his
schedule and when he asked if he had covered his regular route Williamson said
that he had not. Norris told Williamson to run the schedule as written and placed
a warning slip in his file. On this occasion Williamson cut off 18/10 miles and
missed 21 designated bus stops. On October 11, Williamson came into the garage
at 6:30 p.m. instead of 6:45 and Norris placed a warning slip in his file for cutting
his run. This time Williamson cut off 15/10 miles and missed 19 designated bus stops.
These warning slips were given to Melear. Norris said he was unaware of any in-
structions, written or verbal, which would allow a driver to cut off on any of his
scheduled runs, except perhaps when he was having mechanical difficulties with
his bus.
Fielder said the drivers were, and are, given a copy of their scheduled runs and
they were not permitted to deviate from the schedule.
W. M. Faulkner stated that drivers were required to complete their schedules.
He denied that he ever told Williamson he could cut off on his last trip.
Melear was aware of the warning slips issued to Williamson in 1961, including the
warning of October 5 for cutting off on his run and the two warnings on October 6
for reporting late and driving in excess of 50 miles per hour, respectively. Accord-
ingly, when Melear was advised of the warning slip issued to Williamson on
October 11, he discharged him. Melear stated it is important to maintain schedules
as written and denied he had ever issued instructions permitting a driver to cut off on
his final trip. Melear said the last bulletin on this subject was posted on the com-
pany bulletin board about November 11, 1954, by the then superintendent, which
stated:
RUNNING SCHEDULES AND ROUTES
We have had a number of complaints lately about night operators not running
their schedules and not following their regular routes, especially on late or
last trips.
This kind of operation must be corrected at once. We feel sure it would be
corrected without further disciplinary action.
Melear said the bulletin has never been revoked or modified.
2. L. D. Peel
Peel was discharged by Melear on October 23 for fighting.
On the morning of October 22, Peel reported to take out his run, scheduled for
5:40, and in the clubroom he met Cox, a bus operator. While he was talking to or
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing near Cox, Dobson approached and remarked to Cox, "There comes one of
your union buddies." Cox answered, "Yes, sir." Peel ignored Dobson's remark.
Shortly thereafter Peel left for his bus and on his way he saw Dobson sitting behind
the wheel of his bus, ready to leave on his run. Admittedly, both Peel and Dobson
were on duty at this time. Peel approached the bus at the driver's side and told
Dobson, "I'd appreciate it if you't stop, I heard that you had been running around
here telling things on me, rumors on me. I'd appreciate it if you'd stop it and throw-
ing things at me and everything." Dobson replied he had been doing "no such a
g-- d--- thing." Peel said that he had to stop it. Dobson thereupon stated, "Why
don't you go home and change your diaper? . . . . You [are] all wet." Peel
again complained he did not "appreciate them things" and Dobson replied, "Well,
you are just a lying s-- o- b..... .. Peel asked Dobson to get out of his bus, with
the intention of beating him, and Dobson left his bus.
The two of them then engaged in a fight, Peel could not recall who struck the
first blow, and after about 10 minutes Peel, who was losing, became so tired he
could no longer continue to fight. Peel then grabbed a tool or steel bar out of his
box, about 12 inches long and three-fourths of an inch in diameter, in order to protect
himself.5 Admittedly, Dobson was not striking him at that time, did not offer to
resume the fighting, and held no instrument or weapon of any kind. After Peel
secured the tool, E. A. Rice, a driver, grabbed his arm and told him, "If you can't
fight fair, I will take it myself." Rice told Peel to drop the tool and when he
refused, Rice began beating Peel with his free hand, cursing him at the same time.
This lasted 4 or 5 minutes, until Peel dropped the tool and Rice stopped beating him.
Rice then offered to shake hands and forget about it. When Peel said he did not want
to shake his hand, Rice threatened to resume the fight, so Peel shook hands with
him. That concluded the fighting.
After the fight Inspector Jopling told Peel to go home and change his shirt, which
was bloody, and after washing up he went home. Peel returned later and told
Dispatcher Ben Faulkner he was ready to work. Faulkner said he would call him,
if needed, and after waiting around until about 8 o'clock without being called,
Peel left.
That night Peel telephoned Faulkner, to inquire if his run was open the next
day and he said Peel had been pulled off by Inspector Jopling, and he was to see
Melear at 10 o'clock the next morning.
The next morning Melear asked Peel what had happened and when he started
to give his version of the affair Melear told him to submit a written statement to
the claims department. Peel said he could explain it better verbally than in writing
and as he started his explanation Melear cut him off with the announcement, "Well,
I am just going to have to let you go." On cross-examination Peel said he declined
to give a written statement to Melear because, "I figured he was going to fire me
anyway." Peel complained to Melear that he was being fired for signing a union
card rather than fighting, which Melear denied. Peel then left the office.
Peel stated he knew the Company's rules and instructions for the guidance of bus
operators, which were in effect at the time of the fight, contained the following pro-
visions:
19. Cooperation. Employees who are quarrelsome or who persist in an-
noying fellow employees or whose attitude or conduct is disturbing to discipline
and harmony will not be permitted to continue in the service of the company.
22. Fighting while on duty except in self-defense or other just cause is
prohibited.
Dobson testified he reported for work about 5:15 the morning of October 22, and
saw Ben Cox, a driver as he was leaving the clubroom. Dobson paused a moment to
speak to Cox, who had been his instructor when he first came with the Company, and
as several men including Peel were approaching, Dobson remarked, "There is some
of your friends coming in the door." Cox commented, "It is good to have friends."
Dobson then picked up his bus and while seated behind the wheel Peel came to the
driver's side cursed Dobson and accused him of using his name. Dobson did not
know what Peel was talking about, he had never used his name , and told Peel "he had
better go home and change his diapers because he was all wet." Peel then told
Dobson if he got off the bus he would beat his "so and so brains out." At that time
Peel removed an object, wrapped in a mechanic's towel, from his satchel. Dobson
had heard Peel was quick-tempered and had been known to carry a gun, so he left
the bus and faced him. Peel dropped the object and remarked, "You so and so, I
6 Peel said the Company furnished the drivers with the tool during World War II to
be used for checking tires.
FORT WORTH TRANSIT CO., INC. 1157
don't have to use this to whip you." Peel then hit Dobson, who defended himself,
and after several blows were struck Peel picked up the object and struck Dobson
across the face. Dobson asked to him to fight fair and he replied he did not have
to. As Peel raised the object to strike him again, Rice grabbed his arm and told
him to drop it. Instead, Peel struck Rice with his free hand and Rice in turn struck
Peel, who then dropped the object which turned out to be a metal rod. That ended
the fighting and Dobson went on his run.
Melear said the dispatcher reported the fight to him by telephone about 6:15
the same morning. Later that morning Melear interviewed Dobson and secured a
statement giving his account of the fight. Melear also obtained statements from three
other drivers, Foster, Crocker, and Rice. From Melear's testimony these state-
ments generally supported Dobson's version of the fight.
The next day, October 23, Melear interviewed Peel and asked if he would give a
statement, like other witnesses, but Peel declined to do so. Melear suggested that he
consult with personnel in the claims department who would assist him in preparing
a statement but, again he declined to do so. Peel then explained that on the morning
in question a man told him Dobson had been using his name and when Melear asked
if Dobson had used his name that morning he answered, "No, he used `friends."'
Peel stopped at that point and said there is no use "trying to tell you anything about
this because you wouldn't believe it in the first place." Peel never did relate his
version of his fight with Dobson.
After the investigation Melear determined Peel was the aggressor in the fight with
Dobson, while both were on duty, and he was discharged for that reason.
Peel, in rebuttal, denied that he ever carried a gun.
Concluding Findings
While the record is sketchy and fragmentary concerning the manner in which the
Union conducted its organizational drive there is no doubt that Robertson was
notified of the Union's intention to organize the employees as early as June or July.
Immediately upon receipt of this notice, Robertson advised Melear and Wilkerson
that the employees had the right to organize and directed them to instruct the
supervisors that they were not to coerce, threaten, or abuse the employees for exer-
cising their right to join the Union. Although the record shows that the General
Counsel's witnesses signed cards and attended meetings , it does not reveal the names
of the leading proponents of organization. On the other hand, there is no doubt
Dobson, after signing a union card, became opposed to the Union and circulated
petitions for withdrawal from the Union. However, the complaint does not allege
that the Company sponsored or assisted Dobson in his efforts in this respect. The
General Counsel does contend that the Company through its officers and supervisory
employees as well as employees acting as its agents, engaged in a series of acts and
conduct designed to thwart its employees from exercising the rights guaranteed
them in Section 7 of the Act. Considering all the evidence touching upon this course
of action, and there are 14 specific acts alleged in the complaint, I find and conclude
as follows:
The testimony is undisputed that about July 27, Fielder, who was acting supervisor,
called Peel into Melear's office and asked him what Wade and other drivers were dis-
cussing in the clubroom. Peel testified Fielder questioned him about the Union
while Fielder, who had heard Wade was griping, stated he merely inquired what
Wade was talking about, and Peel replied he did not know, that he was not listening
to him. Wade supported Peel's testimony for after Peel reported the affair to him
the following morning, Wade went to Fielder and repeated the incident to him.
Although Fielder denied having any such conversation with Peel, Wade made it
clear that in the clubroom he would talk with anyone he wished on any subject
and he would tolerate no interference on that score from Fielder. I was not im-
pressed with Fielder's version of this incident. First, granting he had information
Wade was griping, there is no reason why he could have not waited until Wade came
in and then spoke to him, rather than questioning Peel. Second , presumably, Fielder
had been instructed regarding his position in the organizing campaign and if he was
aware of gripes on the part of Wade, which could have involved the Union, he
should have consulted with Robertson or Wilkerson instead of interrogating Peel.
I find Fielder was acting in a supervisory capacity around July 27, and I accept and
credit the testimony of Peel concerning his conversation with Fielder. Accordingly,
I find Fielder interrogated Peel regarding his organizational activities.
Knowles related that about August 3, Pirkle spoke to him about the Union and
accused him of being one of the instigators of organization. Craig also stated that
around August 3, Pirkle expressed surprise that Craig, his son, and brother had joined
the Union. When Craig asked where Pirkle had obtained this information he replied
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was from "a reliable source ." Jacks related that in October , Pirkle, in the presence
of a lady passenger , inquired what he thought of the Union and Jacks and Pirkle
then discussed the Union. This conversation ceased when the lady asked if the drivers
were not already unionized and upon being informed they were not, remarked that
they should be. Ptrkle admitted he had talked to Knowles and rode buses driven by
Craig and Jacks but denied he brought up the subject of organization for discussion
or that he expressed any opinion for or against the Union . I find it difficult to
believe that Knowles, Craig, and Jacks concocted their testimony regarding Pirkle's
pattern of interrogations . Therefore , I accept their testimony and find Pirkle did
interrogate them in the manner described.
The General Counsel contends that Haw and Kirkley were employed as super-
visors and both questioned an employee about a union meeting and that Haw
threatened the employee with loss of his job. The Company denies Haw and
Kirkley were supervisory employees . The record shows that Haw was employed
as a regular dispatcher until called to active duty in the Armed Forces , sometime in
September, and that Kirkley , who had acted as temporary dispatcher , replaced him.
Kirkley did not describe his job duties other than to say the dispatcher worked under
W. M. Faulkner , the trainmaster , and that Haw performed the same job before his
recall to active duty. Kirkley's testimony that he voted in the Board-conducted
election of January 3, 1962, is undisputed . I find no evidence to support the General
Counsel 's contention that Haw and Kirkley were employed by the Company in
supervisory capacities . Hence, the Company is not responsible for any remarks
or threats which Haw or Kirkley may have made to Williamson.
On the basis of Redell 's credible and uncontested testimony , I find that about
August 17 Wilkerson questioned him regarding his membership in the Union as
well as that of other drivers , and that around October 23 he requested Redell to
leave the Union with the promise of employment benefits if he would do so.
I also find that Wilkerson , knowing McLean to be a union member, inquired if
he had changed his position regarding the Union.
Langley testified Norris had two conversations with him in September The first
time, in early September, Norris inquired if the union representative had contacted
him and he answered in the negative . The second time, about September 17, Norris
told Langley he had heard Langley had changed his mind and signed up with the
Union and Langley admitted that was true. Norris then asked why he had signed
up and , after Langley gave his reasons , Norris declared the Company "would go
broke and we would all be without jobs" if the Union "took over." Norris did not
challenge Langley 's testimony on essential points, except to deny that he stated the
Company would go broke if the Union came in, and in fact his version of their
conversation on September 17 is entirely consistent with Langley 's testimony.
Sample testified that on October 11, Norris asked if he was married and had a
family and when Sample said yes, Norris inquired if he was looking for another
job. Sample replied he was not looking for a job whereupon Norris stated he had
heard Sample was "all signed up." Sample admitted he had attended a union meet-
ing the night before but denied that he had signed a union card . Norris persisted
he had signed up, which Sample again denied.
Norris conceded he had a conversation with Sample during which he inquired if
Sample was married , if he had joined the Union , and warned him that if the Union
came in "a guy like him with no more seniority than he had would be-would cer-
tainly have to work the extraboard."
From the foregoing testimony I have no difficulty in finding that Norris interro-
gated Langley and Sample concerning their union affiliation , urged Langley to get
out of the Union with the prediction they would all be without jobs if the Union
came in, and warned Sample he would lose valuable employment rights in the event
of unionization.
Langley further stated that about September 30, Melear asked if he had been "a
good boy," he replied he had been "a bad boy," whereupon Melear said they would
have to watch him and thereafter the inspectors followed him practically every day.
Melear denied having any such conversation with Langley . I find Langley 's testi-
mony, apart from Melear's denial , too vague and general to sustain the allegation
that Melear thereby unlawfully interrogated Langley and threatened to watch him
closely because of his union activities.
The testimony of the witnesses produced by the General Counsel to sustain his
allegation that Norris and Dobson spied on the union meeting of October 10 at
the Park Plaza Motel, if not outright contradictory , is plainly conflicting and unim-
pressive . Thus, Langley and McLean stated they saw Norris standing by a stalled
bus shining his flashlight on the motel driveway , yet, as I view their testimony, they
were not in accord as to the location of the bus. Again Tolan , who arrived at the
FORT WORTH TRANSIT CO., INC. 1159
motel shortly after Langley and McLean, claimed he did not see any bus parked
near the motel, but he did see Norris drive past the motel doing about 20 or 25
miles per hour. Dunlap and Jacks testified they entered and left the union meeting
together. Dunlap asserted he saw Norris and Dobson seated in a car as they entered
the motel. On the other hand Jacks asserted he saw two men "cruising" around
as they entered the motel and when he and Dunlap left the meeting he observed
Norris and Dobson sitting in a car near the meeting place. Williamson claimed he
saw Norris and Dobson drive past a meeting place around October 2. Wade, who
attended meetings at the motel, did not observe any company officials in the area.
Norris admitted that out of curiosity, he may have driven past the motel on the
night or nights in question but denied he was engaging in spy activities or that Dobson
was with him. Dobson conceded he went to the meeting because he was invited to
attend but denied that he was with Norris. I accept and credit the testimony of
Norris and Dobson and find they did not, together, go to the vicinity of the union
meetings on the nights in question. Unquestionably, Norris drove past the union
hall while the drivers were congregated outside, sounded his horn, and waved to the
men. Bruton, likewise, admitted he may have driven past the hall on such occasions.
Apart from the weakness of the General Counsel's affirmative evidence, I find it
highly implausible that if either Norris or Bruton intended to spy on the union
meetings they would have used company cars and, as Norris did, clearly make known
his presence to the drivers. Moreover, the fact that they may have known union
meetings were planned on these occasions would not foreclose them from carrying
out their normal duties which necessitated their driving past the meeting places. To
hold otherwise would mean that once supervisors had knowledge of a union meeting
it would, per se, be an unfair labor practice for them to be in the vicinity of the
meeting place, regardless of the existence of valid reasons for their presence.6 I
find Norris and Bruton did not maintain surveillance of any union meetings.
The only testimony adduced by the General Counsel to sustain his allegation that
Dobson, Faulkner, and Stepps, as company agents, spied on a union meeting some-
time in October or November, comes from Dunlap. His testimony amounts to
nothing more than he saw these individuals and their wives seated in a car near
the union meeting place . Dobson conceded this to be true. There is nothing in
the record remotely suggesting they were acting as agents of the Company, or that
they made any reports to the Company concerning attendance at the meeting. I find
no evidence to support this allegation of the complaint.
Williamson's work record is, as the General Counsel concedes, a very poor one.
However, he advances the theory that the Company's failure to terminate William-
son for serious offenses committed prior to the advent of the Union, and then dis-
charging him for the minor offense of failing to complete his last run, common
practice, demonstrates that his discharge was motivated by antiunion considerations.
I agree that this is about the only argument available to the General Counsel and
while it may be somewhat novel, it is, nevertheless, improvised argument and is
wholly unsupported by the record. Apart from his prior derelictions, the credible
evidence shows, and I find, that Williamson was cautioned for cutting off his route
on October 5, and the next day warning notices were issued because he reported late
for work and for driving in excess of 50 miles per hour. It is undisputed that he
again cut off his scheduled run on October 11, and was discharged for that reason
on October 13. Both Tolan and Wade, witnesses for the General Counsel, admitted
that no inspector or supervisor had ever issued instructions to the effect that drivers
could cut off their scheduled run on the last trip. In fact, Tolan acknowledged
that around October 11 he did not finish his trip and was warned by Norris that he
must complete all his runs. Wade and McLean claimed they saw a notice posted
on the company bulletin board a few years ago to the effect that on the last trip a
driver could go directly to the garage after discharging his last passenger without
completing his schedule. Langley characterized this procedure as company "policy."
Company witnesses, Norris, Fielder, W. M. Faulkner, and Melear, uniformly denied
that any such practice ever existed and produced a bulletin, posted in November
1954, prohibiting any such practice. These instructions were never revoked or
modified.
Since the Company is chartered to provide public transportation in the Fort
Worth area and must maintain scheduled runs, I find it simply unbelievable that it
would initiate, condone, or tolerate a practice whereby the driver had the discretion,
in these circumstances, to short cut any scheduled runs, be they the first or last trip.
It is sufficient to say that Wade, McLean, and Langley were completely mistaken in
"The mere presence of a supervisor at or near a union meeting does not satisfy the
requirements of burden of proof to establish surveillance Opelika Textile Mills, Inc.,
81 NLRB 594, 599.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their interpretation of the Company's rules and regulations in this respect . Accord-
ingly, I reject their testimony and accept the testimony of the Company 's witnesses.
I, therefore , find that Williamson was discharged for valid reasons, not for his
union membership or activity as claimed by the General Counsel.
The General Counsel concedes that if Peel was the aggressor in his fight with
Dobson he was discharged for cause. The General Counsel then proceeds to attack
Dobson's credibility , the manner in which Melear conducted his investigation of the
affair , and the adverse inference drawn by the Company 's failure to produce wit-
nesses to the fight who had testified in its behalf at a hearing before the Texas Em-
ployment Commission. From all this, the General Counsel concludes that the
Company seized upon Peel 's fight as a pretext to eliminate a union adherent. There
is neither merit nor substance to this argument.
I have no doubt whatever that Peel instigated and provoked the fight with Dobson.
His own version is that on the morning in question he heard Dobson remark to Cox,
"Here comes one of your union buddies." Certainly , this was a harmless, meaning-
less remark by Dobson and, obviously, Peel felt the same way for he completely
ignored it . Shortly thereafter Peel approached Dobson , who was in his bus, and in
substance told Dobson to stop talking about him. Dobson, according to Peel, with
some emphatic profanity , denied the accusation and suggested that Peel "change his
diaper." Peel claimed he again requested Dobson to refrain from talking about
him and when Dobson called him a "lying s-- o- b----," Peel invited Dobson
to get out of the bus , with the idea of giving him a beating. Dobson accommodated
him in more ways than one, he got out of his bus and gave Peel a lesson in boxing.
When Peel became so tired he could not continue the fight he grabbed a steel bar
from his box in order to protect himself , despite the fact that Dobson was not strik-
ing him at the time, made no offer to resume the fighting , and had no weapon or
instrument of any kind. Rice, Peel said, thereupon seized him with one hand, told
him to drop the steel bar and when he refused to do so, Rice struck him. When
Peel finally dropped the bar Rice let hold of him.
Thus, from Peel's own testimony, it is clear that he was the aggressor in the fight.
Whether Peel was a quick-tempered person or simply used Dobson's remark as an
excuse for fighting a man because he opposed the Union is immaterial . The plain
fact is that Peel started the fight.
Dobson 's testimony is not too much at variance with Peel's account of the affair,
except that he merely commented to Cox that Peel was one of his "friends ," denied
that he cursed Peel, and asserted that Peel actually struck him with the steel bar.
From my close observation of Peel and Dobson while appearing on the witness
stand, I accept and credit Dobson 's testimony concerning the events leading to the
fight as well as the fight itself.
From the testimony of Peel and Melear, as set forth above, I find that Melear
conducted a fair and impartial investigation of the affair and that Peel was afforded
ample opportunity to present his side of the case. It is equally clear that the Com-
pany had a rule prohibiting fighting while on duty and Peel admitted he had knowl-
edge of this rule.
It is, of course, unfortunate that Peel, with a good record covering a period of
15 years, should have provoked such a senseless fight. However, on the record
herein, I find that the Company was fully justified in discharging him and in doing
so it did not engage in any unfair labor practice as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations 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
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the above findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent 's operations occur in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
FORT WORTH TRANSIT CO., INC . 1161
3. By interrogating employees concerning their union membership, sympathies, or
activities in a manner constituting interference, restraint, or coercion, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By promising benefits to employees if they withdrew from the Union the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
5. By threatening employees with loss of employment if they did not withdraw
from the Union or cease their activities on its behalf, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
6. The Respondent in discharging L. D. Peel and W. J. Williamson has not en-
gaged in any unfair labor practice within the meaning of Section 8(a)(3) and (1)
of the Act.
7. The Respondent has not engaged in any surveillance of union meetings within
the meaning of Section 8 (a) (1) of the Act.
8. F. C. Dobson, E. R. Stepps, and H. L. Faulkner were not agents of the Re-
spondent within the meaning of Section 2 (13) of the Act.
9. O. W. Haw and Bill Kirkley were not supervisors of the Respondent within
the meaning of Section 2 (11) of the Act.
10. The unfair labor practices found herein are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
11. Except for the unfair labor practices found herein, it is recommended that the
remaining allegations of the complaint be dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I hereby recommend that the Respondent Fort
Worth Transit Co., Inc., Fort Worth, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union affiliation, sympathies, or
activities in a manner constituting interference, restraint, and coercion in violation of
Section 8(a) (1) of the Act.
(b) Promising benefits to its employees if they withdrew from the Union or
ceased their activities on its behalf.
(c) Threatening its employees with loss of employment if they did not withdraw
from the Union or cease their activities on its behalf.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its place of business in Fort Worth, Texas, copies of the notice at-
tached hereto marked "Appendix." 7 Copies of said notice, to be furnished by the
Regional Director for ,the Sixteenth Region, shall, after being signed by the Respond-
ent; be posted immediately upon receipt thereof, and be maintained for a period of
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply herewith .8
7In the event that this Recommended Order be adopted by the Board the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further recommend that , unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing Recom-
mended Order , the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
I further recommend that the complaint be dismissed insofar as it alleges that the
Respondent discriminatorily discharged W. J. Williamson and L . D. Peel and that
it engaged in acts of surveillance of union meetings , or any other acts or conduct in
violation of the Act, except as specifically found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their affiliation with
Amalgamated Association of Street Electric Railway and Motor Coach Em-
ployees of America, AFL-CIO, or their sympathies or activities in that organiza-
tion , in a manner constituting interference , restraint , or coercion.
WE WILL NOT promise benefits to our employees if they withdraw from or
cease ,their activities on behalf of the above-named Union.
WE WILL NOT threaten our employees with loss of employment if they do
withdraw from and cease their activities on behalf of the above-named Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self -organization , to form labor
organizations , to bargain collectively through representatives of their own
choosing , and to engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any and
all such activities.
FORT WORTH TRANSIT CO ., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 300 West
Vickery, Room 2093 , Fort Worth, Texas , Telephone Number, Edison 5-5341, Ex-
tension 284 , if they have any question concerning this notice or compliance with its
provisions.
Leo Rosenblum , d/b/a Crown Handbag of California , and d/b/a
Soft Touch Shoe Co. and L.A. Leather, Luggage & Handbag
Workers Union , Local 213 L, AFL-CIO. Case No. f1-CA-4525.
July 3, 1969 11
DECISION AND ORDER
On May 1, 1962, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that these allegations be dismissed.
137 NLRB No. 124.