Keeshin Charter Service, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 780 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keeshin Charter Service, Inc. anid Retail Clerks
Union Local 1550, United Food and Commer-
cial Workers International Union, AFL-CIO.'
Cases 13-CA-16799, 13-CA-17002, and 13-
RC-14493
July 18, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND ME MBERS
PENELLO AND TRUESDALE
On May 31, 1979, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,2 findings, 3
recommendations, 4 and conclusions of the Admin-
' On June 7. 1979. the Retail Clerks International Union merged vxith
the Amalgamated Meatcutters and Butcher Workmen of North America
to form the United F'ood and Commercial Workers International Union,
AFL CIO
2 Respondent excepts. inter alia. to the failure of the Administrative
Law Judge to sequester Priola. one of the discriminatees. during the testi-
mony of Heuerman, the other named discriminatee It contends that the
Administrative L aw Judge's failure to sequester Priola during Heuer-
man's testimony constitutes prejudicial error and, in support of this con-
tention. relies upon the Board's decision in Unga Painting Corporation. 237
NLRB 1306. which issued on August 5. 1978 There we held that, absent
special circumstances. a motion for sequestration should be granted when a
named discriminatee is iestifying about events as to which another dscrimin-
atee has testified. or *ill or may iestify. However. the hearing in the instant
case was conducted prior to the issuance of Unga Painting Corporation.
supra. Therefore, since sequestration is a procedural matter and hearings
are conducted in accordance with those procedural rules in effect at the
time of the hearing. the Administrative Law Judge was within his discre-
tion in refusing to sequester Priola. Standard Matertals. Inc. 240 NL RB
969 (1979).
1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
I With respect to the representation case. the Administrative Law
Judge recommended that if the Union failed to obtain a majority of the
votes cast after the Regional Director opened and counted the ballosts of
the five employees he forund to be eligible, the Regional Director should
then set aside the election because Respondent's unfair labor practices in-
terfered with the holding of a free and fair election In this regard. we
note that in the order reopening record and consolidating representation
case. the representation case was consolidated with the two unfair labor
cases herein for the "limited purpose of taking testimony or other eti-
dence tin the challenged hallots in the representation case, and [for] a rec-
ommendation on their disposition in the decision " Accordingly. since the
Union never filed ohbjections to the election. there were nio ohbjections
properl hbefotre the Administrative I.aw Judge. and we dio ntot adopt his
recommendation concerning the setting aside of the electiotn Therefore.
in our Order we shall direct the Regional Director to open anid count the
ballots 'of the five employees found to he eligible and thereafter to issue
the appropriate certification
250 NLRB No. 117
istrative Law Judge only to the extent consistent
herewith. '
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging Heuerman, one of its bus drivers.
As a remedy therefor, the Administrative Law
Judge provided, inter alia, that Respondent be re-
quired to offer immediate and full reinstatement to
Heuerman. Respondent contends that Heuerman is
not entitled to reinstatement because, subsequent to
his discharge on October 17, 1977, he would have
been terminated after it was informed by letter
dated November 16, 1977, from the National In-
demnity Insurance Company, Respondent's tempo-
rary insurer for November and December 1977,
that any vehicles operated by employees Heuer-
man, Woodin, or Gerace were excluded from lia-
bility coverage. It further asserts that these other
employees with poor driving records also were not
retained. Respondent further contends that due to
his record of traffic violations, Heuerman is no
longer fit to perform his driving duties and that,
therefore, it would not effectuate the policies of the
Act to require his reinstatement. We conclude that
Heuerman is not entitled to reinstatement, for the
reasons set forth below.
As found by the Administrative Law Judge,
Heuerman had been employed by Respondent as a
charter bus driver since April 1971. During his em-
ployment Heuerman was involved in several acci-
dents: the first in the fall of 1971; the second in
March 1975; and the third in August 1976. In addi-
tion, Heuerman's Illinois driver's license was tem-
porarily suspended in 1971 for traffic violations. In
October 1975, his license was suspended a second
time, initially for a period of 1 year. However,
through Respondent's intercession with the state li-
censing authority, Heuerman received a temporary
permit and later a "hardship" license. Thereafter,
in 1976, Heuerman had traffic (speeding) violations
in Illinois and Wisconsin. Finally, in October 1977,
Heuerman was notified that his Illinois license
would be suspended for 1 year for a speeding vio-
lation in Wisconsin in March 1977.
Based on the record as a whole, including both
the inferences that he drew from the surrounding
circumstances and his credibility resolutions, the
I In par. l(e) of his recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language. "in any other manner"
However, we have considered this case in light or the standards set forth
in Hickmontt Flxds, Inc. 242 NLRB Noi 177 (19719) and have concluded
that a broad remedial order is inappropriate inasmuch as it has not been
shown that Respondent has a proclivity to violate the Act or has en-
gaged in such egregious or widespread miscconduct as Io demonstrate a
general disregard for the employees' fundamental statutory rights. Ac-
coirdingly, wne shall use in our Order the narrow injunctive language, "in
any like or related manner."
78()
KEFSHIN CHARTER SERVICE. INC
Administrative Law Judge concluded that Re-
spondent's decision to terminate Heuerman in Oc-
tober 1977 was discriminatorily motivated. We do
not disturb that finding. However, the record also
establishes that during this period Respondent was
seeking to lower its insurance costs by securing a
new insurance carrier. In this connection, Respond-
ent's insurance broker and consultant, Goldman,
testified that he and Respondent's president, Kee-
shin, discussed drivers' records in October, that he
told Keeshin it would be next to impossible to
obtain satisfactory replacement insurance if drivers
with bad records were retained, and that certain
drivers had abominable records. Consistent with
Goldman's prediction, on November 16, 1977, Re-
spondent received an endorsement from a new in-
surance carrier, National Indemnity Insurance com-
pany, which specifically excluded liability for loss
or damage while a company vehicle was driven by
one of three named persons, Gerace, Woodin, or
Joseph Heuerman (apparently the carrier had not
been informed of Heuerman's termination).
There is no evidence in this record, nor indeed
even a suggestion that the action taken by Re-
spondent's insurance carrier on November 16, in
excluding Heuerman from insurance coverage was
the result of any collusion with Respondent.
Indeed, as the recital of Heuerman's driving record
indicates, and as insurance broker Goldman accu-
rately predicted, it does not appear that any satis-
factory insurance replacement would have been se-
cured if Heuerman were allowed to drive. Nor
does the record show that Gerace and Woodin, the
other two drivers whose records made them unfit
for insurance coverage, were retained. 6
The Board has long recognized that there are
circumstances in which the policies of the Act will
not be effectuated by requiring reinstatement of a
discriminatee. See, for example, Fort Smith Broad-
casting Company, 146 NLRB 759 (1964). We find
such circumstances are present herein and require
that we not order Heuerman's reinstatement but
rather that we toll his backpay as of November 16,
1977, when Respondent learned that he was unin-
surable. 7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
" There is no indication in the record that these two eacre union adher-
ents. Hence, there is no evidence of disparate treatment of Ileuermian as
compared to Gerace and Woodin
7 In view of our conclusion that fleuerman is not enlltled to reint ate-
ment based on circumstances w hich exiled as of N cihember lo, 1977, and
that, in any e.ent. he could hase been lasfulls terminated otn or about
that date, we find that he aas, not eligible to s.ote in the clection conduct-
ed on Februar) 15. 1(80 Aczordimigl, contrar. Io the Adlminiiratixt,
Law Judge. we shall suain the chllt inge to hi, hal lo
lations Board hereby orders that the Respondent,
Keeshin Charter Service, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to
their signing of union authorization cards, their rea-
sons for signing such cards, and who among them
is behind union activities or responsible for distrib-
uting union cards.
(b) Threatening to sell or close its business rather
than accept a union.
(c) Discouraging employees from support of or
membership in Retail Clerks Union Local 1550,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, or any other labor organiza-
tion, by discharge or other discrimination affecting
their hire, tenure, or conditions of employment.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
(2) Take the following afirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer employee Joseph Priola immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of earnings incurred by him
as a result of his discharge on August 20, 1977,
with backpay and interest thereon to be computed
in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 8
(b) Make employee Joseph Heuerman whole for
any loss of earnings incurred by him as a result of
his discharge on October 17, 1977, for the period
from that date to November 16, 1977, with back-
pay and interest thereon to be computed in the
manner set forth above.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its garage and offices in Chicago, Illi-
nois, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by
Sue, gcnticiall, Als Plnblhih l d& llt,,lnr (5,. 138 Nl RB 71h ( lh2 )
" In the c itll that this Order Its enfo rced h ai J3 udgmient of a t'llit.d
Sltates (ourlt of Appeals. the sords i the nrtlce reading *t'ostsj b~h
Order of thie Naitiional L absor Relatilons Board' shall readl "'stocd Pulttl-
int Io a Jldlgicllil of the Ul1ilted Slacs, ICotsl tit ' Appells Enforclf ig l t
()rdcr itf Ihf Nitisosl I ;1hor Re ltisls slo ird '
7XI1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 13, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS HEREBY ORDERED with respect to the elec-
tion conducted in Case 13-RC-14493 on February
15, 1978, that the challenges to the ballots cast by
Sylvia Brooks, James Patterson, Joseph Priola, and
Beatrice Washington be, and they hereby are, over-
ruled, and that the challenges to the ballots cast by
Joseph Heuerman and Theodore Washington be,
and they hereby are, sustained.
DIRECTION
It is hereby directed that the Regional Director
for Region 13 shall, within 10 days from the date
of this Decision, Order, and Direction, open and
count the ballots cast by Sylvia Brooks, James Pat-
terson, Joseph Priola, and Beatrice Washington in
the election conducted in Case 13-RC-14493 on
February 15, 1978, and prepare and cause to be
served on the parties a revised tally of ballots. If
the revised tally reveals that the Petitioner has re-
ceived a majority of the valid ballots cast, the Re-
gional Director shall issue a Certification of Repre-
sentative. However, if the revised tally shows that
Petitioner has not received a majority of the valid
ballots cast, the Regional Director shall issue a
Certification of Results of Election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT coercively interrogate our
employees as to their signing of union authori-
zation cards, their reasons for signing such
cards, and who among them is behind the
union activities or responsible for distributing
the union cards.
WE WIl.Lt NOT threaten to sell or close our
business rather than accept a union.
WE WIt.L NOT discourage our employees
from support of or membership in Retail
Clerks Union Local 1550, United Food and
Commercial Workers International Union,
AFL-CIO, or any other labor organization, by
discharge or other discrimination affecting
their hire, tenure, or conditions of employ-
ment.
WE WItlt NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights as guaranteed in Section
7 of the National Labor Relations Act.
WE WIt L offer Joseph Priola immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights and privileges previously en-
joyed, and WE WILL make him whole for any
loss of earnings incurred by him as a result of
his discharge, with interest.
WE WILL make Joseph Heuerman whole for
any loss of earnings incurred by him as a result
of his discharge on October 17, 1977, for the
period from that date to November 16, 1977,
with interest.
KEESHIN CHARTER SERVICE, INC.
DECISION
HERZEL. H. E. PL AINE, Administrative Law Judge:
Keeshin Charter Service (Respondent), a bus company
that transports charter passengers, was the object of
union organizing by Retail Clerks Local 1550 (the
Union), commencing in the summer of 1977, that result-
ed in a Board-conducted election on February 15, 1978.
The election ended in a 14-14 tie with 6 challenged bal-
lots.
Following the filing of the union petition for election
on August 8, 1977, but prior to the election, according to
the General Counsel, Respondent discharged two bus
drivers, Priola and Heuerman, the employee leaders of
the union organizing, because of their union activities, in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended (the Act). ' It was also alleged
that Respondent engaged in violations of Section 8(a)(1)
of the Act by coercive interrogation of employees con-
cerning their union activities and sympathies, and by
threats that Respondent would shut down its business if
the Union came in, all on the part of Respondent's presi-
dent, Paul Keeshin.
Respondent claims it suspended employee Priola, but
did not fire him, in connection with a motor vehicle ac-
cident in mid-August 1977, and that he voluntarily quit
his job. Respondent further contends that it discharged
employee Heuerman, in mid-October 1977, for an
"abominable" driving record including a driving license
suspension. While Respondent has also formally denied
' he conmplainit in Cae 13 CA 16799, jiol img thC diwcharge of em-
ploee Joeph P'riol,. was filed on ()Ocoher 31, 1977, on a charge filed h>
the Union on August 26, 1977 The ctmplidrt im Case 13-CA 17(X)2. in-
,ollilig the dhilcharge of eilnployc Joseph Heuerman, as lfiled on No-
lhember .t). 1977. on )1 ilcharge filed h5 the Unio n o ()ctober 28, 1977
7X82
KFEtSHIN CHARTER SERVICE, INC
(by its answer) commission of the several alleged 8(a)(l)
violations of coercive interrogation and threats by its
president, Paul Keeshin, there was no testimony by Kee-
shin in response to the employee testimony on these sub-
jects.
Notwithstanding their apparent separation from em-
ployment by Respondent, both Priola and Heuerman
voted in the February 15, 1978, representation election.
Their ballots were challenged, and, of course, their eligi-
bility is contested by Respondent. Also challenged by
Respondent were the ballots of three bus cleaners or
office cleaners, and the Union challenged the ballot of a
fourth bus cleaner. In his supplemental decision of April
4, 1978, on the challenges and objections to the conduct
of the election, the Regional Director noted that the
issue of eligibility of Priola and Heuerman to vote would
be determined in the unfair labor practice proceeding
before me on the legality of their discharges, and con-
cluded that the challenges to the eligibility of the other
four voters should also be resolved by a hearing. For this
purpose, the General Counsel moved to reopen the
record of the unfair labor practice cases to consolidate
the representation case, to take testimony regarding the
eligibility of these other four challenged voters, and to
recommend disposition of the six ballots. I reopened the
record for limited purposes.
The consolidated cases were heard in Chicago, Illinois,
on February 22, 23, March 13, 14, and June 27, 28, 1978.
The General Counsel has filed a brief in the unfair labor
practice cases, the Union has filed a brief in the represen-
tation case, and Respondent has filed briefs for the three
cases.
Upon the entire record of the cases, including my ob-
servation of the witnesses and consideration of the briefs,
I make the following:2
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Illinois corporation engaged in intra-
state and interstate transportation of charter passengers
by bus, with its business location in Chicago, Illinois.
2 Both the General Counsel and Respondent filed motions for correct-
ing the transcript of the testimony (comprising six volumes) With one
exception, I have allowed all of the proposed corrections as justified,
based upon either the corroboration of my notes. or the sense derived
from the surrounding text, or both. I have included a few additional cor-
rections to ease the reading in a number of garbled places.
The one suggested correction, which I have denied, was the proposal
by Respondent to make a change on p 625, 1 25 (Vol. 4. March 14,
1978) from "February 22" to "your affidavit." The change would be in-
correct and. if allowed. misleading. The witness Priola was being asked
on March 14, 1978, about what he had said, or not said. prior in the hear-
ing of this case, on the day he previously testified; namely, February 22.
1978. That is quite clear from the remainder of the question on the top of
page 626 where Respondent's counsel said. "in other words when you last
testified here you made no mention at all about the incident with Paul
Keeshin. can you tell us why that is?" (Emphasis supplied.) The accuracy
of the text, as written. is further buttressed by the fact that the affidavit
of Priola. which was admitted into evidence (G C. Exh 10) was execut-
ed on August 31. 1977. prior to the event as to which Priola had testified
(the return of keys and other property of Respondent), that occurred at
least no earlier than September I. 1977 (testimony of Respondent's Man-
ager Bayr. infr),. hence 4would not have been included or referred tt in
Priola's affidasit of August 31
In 1976, Respondent's gross volume of business ex-
ceeded $250,000, of which over $50,000 was derived
from interstate transportation of passengers. In the same
year, Respondent purchased and received goods and ma-
terials valued in excess of $50,0(X) directly from suppliers
located outside the State of Illinois.
As the parties admit, Respondent is an employer
within the meaning of Section 2(2), (6). and (7) of the
Act.
As the parties also admit, the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
It. THE UNFAIR I ABOR PR CTICIES
A. Respondent's Business Operations
As described by Operations Manager Bruno Kopacz,
Respondent is a regulated interstate irregular-route
motor carrier of passengers and luggage, with authority
to engage in irregular-route operations from three Illinois
counties to 47 States; and it is also an intrastate motor
carrier of passengers and luggage, engaged in charter op-
erations wholly in Illinois. Typical operations are the
moving of groups of people to and from conventions,
hotels, exhibits, business meetings, sporting events, and
summer camps. While the business is an all-year-round 7-
days-per-week operation, the bus operations are heaviest
in the summer months.
The business location is at 705 South Jefferson Street,
Chicago, about a mile and a half from the downtown
loop area. There Respondent has its offices and garage in
one building. The west end of the building has three of-
fices-one for President Paul Keeshin, one for General
Manager Edward Bayr, and a general office occupied by
Operations Manager Bruno Kopacz, Phil Edelheit, con-
troller or accountant, and two office clericals responsible
to Edelheit. Additionally, there are two small rooms that
together comprise .what is variously described as the
kitchen or coffee or drivers' room, and a small bunk
room where one or more bus driver might sleep when
there is no time between charters for going home. The
remainder of the building is a large unpartitioned garage
area into which one can step directly from the office
area.
The garage area is where buses pull in for repairs per-
formed by the auto mechanics or mechanical employees.
and for cleaning and routine checking of gas, oil, and tire
pressure by the bus cleaners, also called maintenance em-
ployees. The latter included bus cleaners who also did
office cleaning for part of their time. Respondent had no
outside service for cleaning the offices or buses, accord-
ing to Operations Manager Kopacz.
Operations Manager Kopacz, who handled the dis-
patching of the buses, was the immediate supervisor of
the drivers, mechanics, and cleaners, including responsi-
bility for their hiring and firing, and was answerable to
General Manager Bayr and President Keeshin, who \were
in overall charge. All three were admitted supervisors
within the meaning of the Act.
B. Uniont Organizing
The employees were not represented by a Union.
DECISIONS OF NA()IONAI LABOR RELATIONS BOARD
According to employee Joseph Heuerman, who began
employment as a charter bus driver with Respondent in
April 1971, prior to his employment (on information
from fellow drivers and President Keeshin), there had
formerly been a union that was voted out and replaced
by a drivers' association. Heuerman testified that he was
elected by the drivers in 1976 as driver representative of
the drivers' association (along with another driver who
did not serve in 1977). Keeshin told him, said Heuerman,
that the drivers' association was not a union, but would
be the means to negotiate with Keeshin for a pay raise.
Heuerman testified that, though his function was to try
and settle grievances of employees with Respondent, he
had little success because whenever he brought a griev-
ance to Keeshin or Operations Manager Kopacz they
would bounce him back and forth between them like a
yo-yo.
The desirability of the employees organizing to affili-
ate with a union was raised by charter bus driver Joseph
Priola in a June 1977 meeting at a restaurant near the
garage with a group of fellow drivers.3 Interest was
evinced, and employee Priola mentioned his nephew,
Phil Priola, an employee of the International AFL-CIO
at its office in Rosemont, Illinois, as one who could help
Respondent's employees. With concurrence of his fel-
lows, employee Joseph Priola called Phil Priola, who
said he would help Respondent's employees. Phil Priola
sent employee Priola a batch of union authorization
cards which employee Priola turned over to employee
Heuerman, as the drivers' association representative, for
distribution. Heuerman testified that he received the
cards from Priola in the latter part of June and distribut-
ed them, including handing some out at the table in the
drivers' room, and signed one himself. When the other
signed cards came back to him, Heuerman said, he
turned them over to employee Priola, who also had
signed one, and the latter delivered them to his nephew
Phil Priola of the AFL-CIO office. This was in July
1977.
Phil Priola got in touch with Retail Clerks Local 1550,
suggesting that the Local undertake representation of
Respondent's employees and turned over the signed au-
thorization cards in his possession. Retail Clerks' Orga-
nizer Martin Nally took over and filed the representation
petition for Retail Clerks with the Board on August 8,
1977, including with it the signed authorization cards.
Board Agent Schrank notified Nally that the authoriza-
tion cards were inappropriate to support the petition in
their then form, which was a designation of AFL-CIO
or its appropriate affiliate as bargaining agent. Nally was
given a brief period of time to obtain appropriate desig-
nations. He handed a batch of Retail Clerks Local 1550
authorization cards to employee Joseph Priola, who,
again, gave the batch to employee Heuerman for distri-
bution. Heuerman distributed these, including some at
the table in the drivers' room, and gave the signed cards
to employees Priola and Keesy for ultimate delivery to
:' The charter bus drivers were the predominant element among the
employees, comprising more than Iwo-thirds of the whole number There
were 20) or more regular full-time and part-time driver,, about 5 or 6 reg-
ular full-time and pa;rt-time maintenance employees (cleatnersl, 2 luto me-
chanics, and 2 office clerical employees
Union Agent Nally. This was accomplished shortly after
mid-August, and the new cards were accepted as appro-
priate designation of Retail Clerks (the Union) in time
for the hearing on the petition that convened August 26,
1977.
The hearing in the representation case took place on
August 26, September 6, and October 27, 1977. On No-
vember 16, 1977, the Regional Director issued a Deci-
sion and Direction of Election in a unit that included all
of the employees other than the office clericals.
The election was held on February 15, 1978. Balloting
was deadlocked at 14 for the Union to 14 against, with 6
additional ballots challenged.
C. Respondent's Antiunion Hostility, Coercive
Interrogation, Threats
In connection with the union organizing, Respondent's
president, Paul Keeshin, engaged in various acts of coer-
cive interrogation of and threats to employees and gave
other evidence of antiunion hostility.
Employee Joseph Priola testified that about August 2
(approximately 2 weeks before he signed his second au-
thorization card on August 16), he came to see President
Keeshin with a complaint of unjust treatment by Oper-
ations Manager Kopacz in two matters.
The first matter occurred about 2 weeks earlier, when
Priola was accused, unfairly, of tailgating another bus,
i.e., driving too closely to the bus ahead of his, in a
charter party comprising a group of Respondent's buses.
The tailgating charge was made anonymously by one of
the drivers in the group in an unsigned letter that also
did not identify the accused driver. The accuser turned
out to be driver Glenn Keesy, who testified for Re-
spondent. While Keesy denied that the anonymous letter
was in his handwriting (G.C. Exh. 11), he admitted that
it was he who raised the matter with General Manager
Bayr, indicating that Priola was the culprit; then later in-
formed Bayr that it was not Priola but driver George
Godeman who did the tailgating. On cross-examination,
General Manager Bayr admitted that Keesy came to him
and first accused Priola, then came back later and said it
was not Priola but Godeman he was accusing of driving
too close behind his, Keesy's, bus.
Meantime, Bayr and Operations Manager Kopacz,
without investigating the letter or Keesy's accusation
hauled Priola before them, showed him the anonymous
letter, and accused him of the tailgating. According to
Kopacz and Priola, Priola protested that it never hap-
pened, that his bus was a half-mile away from the other
buses, and the letter had to be referring to someone else.
Kopacz told Priola that he had never admitted a fault
and that he, Kopacz, just did not believe him.
Later, when driver Keesy informed Bayr and Kopacz
that he had mistakenly accused Priola, Bayr told Priola
there had been a mistake but Kopacz did not apologize
to Priola for the slur.
The second matter occurred on the morning that em-
ployee Priola came to complain to President Keeshin. It
appeared that on a prior Sunday night, Priola and a part-
time driver. Ken Chorvath, had been scheduled to make
a pickup of employees of Arthur Andersen Company at
784
KEESHIN CHARTER SERVICE. INC
Chicago O'Hare Airport. Priola arrived at O'Hare with
his bus, but had not come from Respondent's garage and
was not aware at the time that there were to be two
buses. The second bus did not arrive. An Andersen
Company employee asked Priola about the second bus,
he called the garage, and was told hy th- person in
charge that there would not be a second bus. Operations
Manager Kopacz testified that he was at home that
Sunday night and that he learned later that driver Chor-
vath had not been notified of his assignment to the
second bus. When Kopacz heard of the foulup from an
Andersen Company emplo,,-e, he took his embarrass-
ment and anger out on employee Priola by chewing him
out.
FeehWg, as a result of these two incidents, that he was
being unfairly picked on by Kopacz for things for which
he was not at fault, employee Priola walked into Presi-
dent Keeshin's private office to complain. Priola had not
complained before in his year of employment. Keeshin
said he was not aware of the Keesy letter or the Chor-
vath matter, but changed the subject to another matter.
Keeshin said to Priola, that he did not understand what
was going on among the employees, all of the fellows
are for the Union 100 percent. Priola answered, that he
did not know, but if Keeshin would go out and talk to
them they would listen to him and give him cooperation.
According to employee Priola, President Keeshin
asked Priola if he had signed a union card. Priola said
yes. Keeshin asked why. Priola answered that he had
signed for the same reason everybody else had signed,
that they wanted fair treatment.
President Keeshin then said to employee Priola that
Priola had a relative at the Rosemont office of the Union
and, he being Italian and Priola being Italian, it was
Priola who caused the union matter. Priola replied there
were persons of other nationalities working at Rosemont
and in Respondent's garage, why did he single out the
Italians. That ended the conversation, said Priola.
About a week after this conversation with President
Keeshin, according to employee Priola, Keeshin walked
into the drivers' room where a number of the drivers, in-
cluding George Godeman, Noah Nelson, and Priola,
were present. Addressing no one in particular, Keeshin
asked if they had seen a note on the bulletin board refer-
ring to information sought by Board Agent Schrank. He
then added, do you know what you fellows are doing to
me with this Union. Someone or more replied, "You
brought it on yourself by not listening to the fellows."
According to employee Priola, President Keeshin
turned to employee Noah Nelson and asked if he had
signed a union card. Nelson answered yes. Keeshin asked
why. Nelson replied that he signed for the same reason
that the others did, they wanted representation.
Employee Joseph Heuerman, who was employees' rep-
resentative of the in-house drivers' association, testified
to a half dozen or more conversations between President
Keeshin and himself on the subject of the Union, in the
second half of July and the month of August 1977.
In mid-July, said employee Heuerman, he was riding
in an oversize station wagon with President Keeshin and
General Manager Bayr to pick up signs for a shuttle of
passengers to the McCormick Exhibition Center. Kee-
shin said that he had heard from another bus company
owner that Respondent's employees were organizing a
union; and, asked Keeshin, addressing Heuerman, was he
trying to force the Union down Keeshin's throat. Heuer-
man replied, "No there are thirteen others who are."
Keeshin answered, "You mean there are thirteen chiefs
and no Indians"; and Heuerman said, "It sounds that
way.
Within less than a week of this conversation, employee
Heuerman said, President Keeshin talked to him again
about the Union at the garage. Keeshin told him, Heuer-
man testified, that there would never be a union in Kee-
shin Charter Service, he would sell the place and close
the doors. Keeshin repeated this statement to him, said
Heuerman, again in the garage about a week later, saying
there would never be a union at Keeshin, he would sell
or close the place.
Employee Heuerman testified that shortly thereafter,
when he was about to leave the garage on a trip, Presi-
dent Keeshin asked him if he had signed a union card.
Heuerman answered, "Yes." Keeshin then asked if he
had passed out the union cards, and Heuerman answered,
"I don't have any." Keeshin responded, "Somebody has
to be passing out cards, somebody is instigating this."
Heuerman repeated that he did not have any cards.
About 3 or 4 days before August 23, 1977, Heurman
said, he received a document that had been mailed to
him by the National Labor Relations Board and handed
to him by General Manager Bayr. It was a "disclaimer
of interest" or waiver form in which he was asked to in-
dicate whether, on behalf of the Independent Drivers'
Association, he disclaimed interest in representing any or
all employees of Respondent who sought to become in-
volved in the pending representation case, Case 13-RC-
14493. President Keeshin came to Heuerman, in the
garage, and said he knew that Heuerman had received a
waiver request from the Board in respect to representing
the drivers before the Board, and that Heuerman did not
have to go to that hearing. Keeshin asked him what he
was going to do about the waiver. Heuerman replied he
would have to find out more about it before he did any-
thing. On August 23, Heuerman said he signed and
mailed the disclaimer of interest to the Board.
According to employee Heuerman, I or 2 days after
he signed the disclaimer of interest, he received a tele-
phone call from President Keeshin, who said he had
heard that Heuerman signed the waiver that he would
not represent the drivers' association at the Board hear-
ing, and told Heuerman that he had let the drivers down.
Heuerman replied that he understood that when the driv-
ers signed the union cards to be represented by the
Union that ended the drivers' association. Keeshin retort-
ed that that was not the way some of the drivers looked
at it. Heuerman answered he would resign as drivers'
representative. He did not attend the Board hearing, the
first day of which was August 26, 1977.
President Keeshin did attend the Board hearing and
was present throughout the day of August 26, as were
drivers Joseph Priola and Noah Nelson, assisting the
Union's attorney, Rosenfeld. and agent, Nally (testimony
785
DECISIONS OF NATIONAL IABOR RELATI(ONS BOARD
of Union Agent Nally).4 At the end of the day, testified
employee Heuerman, while he was talking to General
Manager Bayr in the latter's office, President Keeshin
came storming in and said angrily that he had been at
the Board hearing and that Joe Priola and Noah Nelson
were there representing the drivers. Turning to Bayr,
President Keeshin said that if either of them came on Re-
spondent's property they were to be arrested for tres-
passing, and told Heuerman he wanted him out of the
bunk room. '
On October 17, 1977, after employee Heuerman was
informed that he could no longer drive for Respondent,
while Heuerman was in the drivers' room, President
Keeshin came in for coffee. Heuerman asked Keeshin if
he was using Heuerman's driver's license problem to get
back at him for his union activities. According to Heuer-
man, Keeshin replied that his lawyers advised him not to
talk, but he had heard that Heuerman had sat at the table
in the drivers' room and passed out union cards.
Employee Dario Gonzales, who was a bus driver for
Respondent for 4 years, testified that he had signed one
each of the two sets of union cards distributed (G.C.
Exh. 13 on July 5, G.C. Exh. 14 on August 20, 1977).
About the time of his signing the second card, said Gon-
zales, he was intercepted by President Keeshin in the
garage, and asked by Keeshin if he knew about the
Union and had he signed a union card. Gonzales an-
swered, "Yes." Keeshin asked why, considering that
Keeshin was operating the company on a "family" basis.
Gonzales told Keeshin it related to a number of things,
such as employee Priola's suspension without any of the
men knowing what had happened, and differences in
treatment of the drivers on like problems-"there ought
to be a rule book," said Gonzales. According to Gon-
zales, Keeshin commented that he could not have a rule
book as every situation was different. Gonzales replied,
"At least there should be guidelines."
In a second conversation a few days later, when Gon-
zales was called in by Keeshin to discuss a charter, Kee-
shin asked him who was behind the union activities.
Gonzales said he answered that he did not know, that
the men received the union cards in the mail. According
to Gonzales, Keeshin responded that he thought he knew
that there was an Italian working at the union office and
an Italian had been driving for the company. Gonzales
testified that the only "Italian" driver he knew at the
time was Joseph Priola. 6
4 Employee Nelson had just previously been discharged in that month,
according to Operations Manager Kopacz, and employee Priola had been
permanently suspended or discharged August 20, as discussed and found
infra.
I Employee Heuerman testified that he had been staying at the bunk
room on the premises (see description, sec. A, supra), as other drivers had
done from time to time, since June 1977, and moved out sometime after
August 26, when a notice was posted saying no staying except between
trips without time to get home and back for the next run,
6 Under close cross-examination by Respondent, employee Gonzales
went through the list of employees. including the supervisors, indicating
what he knew from them individually of their national origins or ances-
try and established that he was well informed on the subject to identify
whomever he was asked about as either German, Polish, Mexican, Jamai-
can, Bohemian, Italian. and so on. He was asked about a driver Mike
Spattafore, and identified him as a part-time driver whose ancestry was
Italian, but testified that Spattafore had not come with Respondent until
All of the above-described events, testified to by em-
ployees Priola, Heuerman, and Gonzales, concerned
statements and conduct by Respondent's principal officer
and overall supervisor, President Keeshin, who also, as
indicated, infra, by his subordinates, General Manager
Bayr and Operations Manager Kopacz, was responsible
for the separation from employment of Heuerman and
Priola (when ordinarily Kopacz would make such deci-
sions). Nonetheless, President Keeshin did not testify.
There was no claimed impediment to his testifying,
indeed Operations Manager Kopacz testified, on the day
that the taking of testimony was concluded in the unfair
labor practice cases, that Keeshin was in his office at 705
South Jefferson Street, Chicago, about a mile and a half
from the courtroom or 10 minutes away in terms of driv-
ing time.
Conclusion
The foregoing evidence supplied by witnesses Priola,
Heuerman, and Gonzales was credible and sufficient to
establish that Respondent had committed the alleged
unfair labor practices, violating Section 8(a)(1) of the
Act, as well as exhibiting union animus. The failure of
Respondent's responsible officer, President Keeshin, to
explain away or contradict such evidence was itself per-
suasive that his testimony if given would have been unfa-
vorable to Respondent and would not have supported
Respondent's formal position denying any wrongdoing.
Interstate Circuit, Inc. v. United States, 306 U.S. 208, 225-
226 (1939); V.L.R.B. v. Kalof Pulp and Paper Corp., 290
F.2d 447, 451 (9th Cir. 1961).
I therefore find that Respondent engaged in coercive
interrogation, in violation of Section 8(a)(1) of the Act,
by its President Keeshin variously questioning employees
Heuerman, Priola, Gonzales, and Nelson on whether
they signed union cards, their reasons for signing such
cards, who of Respondent's employees was behind the
union activities, and which of them were responsible for
distributing the union cards. Such probing reasonably
tends to interfere with the free exercise of employee
rights under the Act, and is consequently coercive; and
the coercion was accentuated by the fact that the em-
ployees were not informed of any lawful purpose for the
interrogation or assured that there would be no reprisal.
Satra Belarus, Inc. v. N.L.R.B., 409 F.2d 271 (7th Cir.
1978); Paceco, a Division of Fruehauf Corp., 237 NLRB
339 (1978).
The interrogation was not only coercive in its nature,
in the context of the union organizing and President
Keeshin's openly expressed hostility to the Union, but
was accompanied by his threat to sell or close the busi-
ness rather than accept the Union, itself a violation of
Section 8(a)(1) of the Act, N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, 618-620 (1969).
later il the year and was not drvi ing fir Responldentl at the time of Kee-
shin's conversation with Gonzalec ahbout the Italian
786
KEESHIN CHARTER SERVICE, INC.
D. Discharge of Employees Priola and Heuerinan
I. Employee Priola
As set out above, employee Joseph Priola began his
employment as a charter bus driver with Respondent in
August 1976. He helped interest and organize his fellow
employees in the Union through the professional connec-
tion of his nephew, starting in June 1977, and was there-
after interrogated concerning his signing a union card
and his union sympathies by Respondent President Kee-
shin and accused by Keeshin of having been responsible
for the union organizing. This last occurred at the begin-
ning of August 1977.
On August 19, 1977 (a Friday), employee Priola was
one of four drivers taking buses to a camp at Minocqua,
Wisconsin, to pick up a group of girl scouts and return
them to Chicago. Near Minocqua, Priola was driving his
bus a distance behind the other drivers. About 7 p.m., his
bus was in a line of cars moving northward on a north-
south two-lane highway, when a car, not in the line,
pulled in front of the first in the line and made a sudden
stop. As a result, the first car in the line hit the errant
car, the second car (immediately in front of Priola's bus)
hit the first car, Priola's bus (the third in line) hit the
second car in front of him, and the fourth car (behind
Priola) hit Priola's bus, in a chain effect. Priola said there
was no opportunity for him to avoid hitting the car in
front of him (car two) by moving out of line into the
southbound lane because of oncoming traffic in that lane.
In any event, it appeared that the damage to car two was
to the rear bumper and trunk, and a passenger in the car
may have hurt his toe and had a scratch on his nose. The
damage to the bus was to the front and rear bumpers.
No one in the chain accident required hospital treatment
though an ambulance came on the scene (G.C. Exh. 7).
Employee Joseph Heuerman, who was the lead driver
of the four drivers on the Minocqua charter, said he
learned almost immediately of the accident from employ-
ee Priola, who called him on the CB radio. Heuerman
testified that he drove back to the scene and from there
reported the accident by telephone to General Manager
Bayr in Chicago. In response to Bayr's inquiries, Heuer-
man indicated that Priola's bus was in operating condi-
tion and that there appeared to have been no personal in-
juries.
The four-bus charter picked up its passengers that eve-
ning and returned them to Chicago, and reported in at
the Respondent's garage on Saturday, August 20. Gener-
al Manager Bayr was not there, but Operations Manager
Kopacz was. Kopacz said nothing to employee Priola
when he came in about the accident and asked him no
questions about it, and Priola proceeded to the drivers'
room to complete his logbook paperwork. He observed
that his name was on the board for work.
As Priola worked on his papers he observed Oper-
ations Manager Kopacz come into the room and take his
name off the work assignment board. Priola asked why,
and Kopacz told him that he understood Priola had an
accident in Wisconsin and there was no more work for
him until further notice. Priola remonstrated that he was
being prejudged without having given his accident
report, or Kopacz questioning his account or looking at
the bus. Kopacz reported that anytime anyone runs into
the back of another car, that was enough for him.
Kopacz testified that his words were, "anytime you have
a rear-ender, that's it."
Significantly, Operations Manager Kopacz admitted
that he never talked to employee Priola about the acci-
dent or asked him for information about it, that he was
merely told by someone-he did not know who-that
Priola's vehicle hit another vehicle. 7 Also, Kopacz did
not know, until later, that the accident involved a chain
of vehicles, in which another vehicle hit Priola's vehicle
in the rear. Further, Kopacz concluded that, because
Priola had been involved in a rear-end collision, the acci-
dent was chargeable to Priola and that there could be no
exonerating circumstances.
Employee Priola testified he asked Operations Man-
ager Kopacz for an accident report form that he could
fill out, but Kopacz simply turned and walked away.
Kopacz claimed nothing was said about an accident
report form, and besides giving out such forms was Man-
ager Bayr's function; however, employee Dario Gon-
zales, who was present in the drivers' room during the
conversation, testified that Priola asked Kopacz for an
accident report form and Kopacz did not respond and
walked away. Moreover. Kopacz admitted he had given
out accident report forms on other occasions. I credit
Priola's testimony in this matter.
Employee Priola said he came back to the garage the
next day, Sunday, August 21, to see if his name was
posted for work and again on Monday and Tuesday,
August 22 and 23, and found that it was not. On either
August 22 or 23, said Priola, he was called on the public
address system to Manager Bayr's office and given an
accident form to complete. In this connection Bayr, who
testified that this was the kind of accident on which he
wanted a report as fast as he could get it for use of the
insurance adjusters, could not account for the delay be-
tween August 19, when he learned of the accident from
employee Heuerman, and August 22 or 23, when he
gave Priola an accident report form. He obviously had
not told Kopacz to get it from Priola, and admitted he
might have left it in Priola's message cubbyhole, but had
not done that since he wanted to know if persons were
injured. However, in the same breath, Bayr conceded he
already knew from employee Heuerman's phone report
of August 19 that no one was injured.
Employee Priola repaired to the drivers' room to com-
plete the accident form. He testified that while doing so
Operations Manager Kopacz came in, and Priola asked
when he was going back to work. According to Priola,
Kopacz answered, "You are not coming back, you are
off indefinitely." Priola said, "You mean I'm fired?" and
Kopacz replied, "You said that, but you are not coming
back to work anymore." Priola completed filling the ac-
cident report and returned it to General Manager Bayr,
who, said Priola, typed and put on it a summary page
' General Manager Bayr claimed he did not remember telling Kopacz
or anyone about the accident when it vas reported to Bayr
Kopacz also conceded that it was the company responsibilit Iot give
the employee the accident form, and not the emploees' responsibility to
get it The employee is respnsible only to, fill it out, he said
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(G.C. Exh. 7). Kopacz claimed he told Priola that he
would not be put back to work until there was an inves-
tigation, and that Priola suggested he was being fired and
was going to the Labor Board to complain, whereupon,
Kopacz further claimed, he took Priola to General Man-
ager Bayr and said that he had suspended Priola and that
he had not been fired. Neither Bayr nor Priola confirmed
any such episode, and I am inclined to doubt Kopacz'
veracity on this issue, particularly since no such investi-
gation was made and Kopacz admitted he made no effort
at any time to contact Priola about returning to work.
Kopacz said there was no reason to get in touch with
Priola, he had come in thereafter and turned in his com-
pany property-keys and company credit card-to Gen-
eral Manager Bayr and, in effect, had quit.
However, the return of company property by employ-
ee Priola did not occur until September 1, according to
Bayr, which was 12 days after Priola was first denied
work on August 20, and 6 days after the significant
events of August 26, when Priola had attended the first
Board hearing on the employees' union representation
case. At the end of that day, August 26, as related by
employee Heuerman, Respondent President Paul Keeshin
had come back to Respondent's offices from attending
the hearing and had said angrily and loudly for supervi-
sors and employees to hear that Priola and Noah Nelson
(who had been fired unequivocally just previously) had
been representing the drivers at the hearing, and added
(pointedly to Bayr) if either of them came on Respond-
ent's property they were to be arrested for trespassing.
Heuerman informed Priola of what Keeshin had said
later that evening (see G.C. Exh. 10), and there can be
little doubt that Keeshin viewed Priola as he did Nelson,
a discharged employee who had no business purporting
to act as an employee aiding the Union on or off Re-
spondent's premises.
President Keeshin made this unmistakably clear direct-
ly to Priola on September 1, 1977. Priola testified that
because his work had been terminated he did not wish to
remain responsible for property of Respondent and he
came into the garage that day to return the gasoline
credit card, garage door key, and uniform (which he had
not worn). Keeshin apparently drove in behind him,
jumped out of his car, and ordered Priola to get out,
saying he had no business there. Priola responded that he
was trying to return Respondent's property. At or about
that time General Manager Bayr came by and, when
Priola said he was trying to return the Company's prop-
erty, Bayr said he would take it and did. Bayr claimed
he told Priola he had not been fired and only suspended,
but Priola denied there was any such statement. In view
of Bayr's knowledge of Keeshin's views regarding Prio-
la's status since at least August 26, I find Bayr's assertion
incredible. Indeed, Bayr became very hazy about what
Keeshin said that morning, September 1, directly to
Priola, stating that Keeshin had been there, and Bayr
was not saying that Keeshin did not talk to Priola, but he
could not recall anything about it. And, of course, as al-
ready noted, Keeshin did not testify and did not deny
Priola's testimony, from which it can be inferred that on
September I Keeshin confirmed what Prioia and Bayr al-
ready knew, that Priola had been discharged rather than
suspended since August 20, 1977.
Likewise, Operations Manager Kopacz, who conceded
that he would normally make the decision for discharg-
ing as well as suspending an employee was obviously
aware of President Keeshin's decision that employee
Priola was to be discharged, which accounted for
Kopacz denying work to Priola before even knowing or
learning the facts of the August 19 accident, or without
conferring with Chief Bayr, who handles accident re-
porting, and, of course, making no effort to ever recall
Priola if he was merely suspended.
Moreover, the treatment of employee Priola following
the Minocqua accident of August 19, was quite unlike
the previous history and practice of Respondent in deal-
ing with accidents of employees, including Priola, and
suspensions therefor.
First of all there was no rule or practice that the em-
ployee was automatically chargeable and suspended, as
Kopacz told Priola, because of a rear-end accident. As
President Keeshin told employee Gonzales, there were
no rules about company accidents, each case was treated
individually. The closest to automatic rules, among the
company rules produced, were several setting forth the
grounds for immediate discharge, such as a driver using
alcoholic beverages (G.C. Exh. 25), or tailgating and
playing bumper tag (G.C. Exh. 23), or taking a bus home
without permission (G.C. Exh. 33), or failing to turn in
lost articles on a bus (G.C. Exh. 35).
But, concerning accidents, employee Heuerman's bus,
on an intinerary carrying a professional basketball team,
hit a car in the rear on March 26, 1975, and he filed an
accident report provided by Bayr on his return to Chica-
go, April 2, 1975 (G.C. Exh. 18), indicating that the
brakes of the bus failed to slow properly. Heuerman was
not suspended, reprimanded, or warned, and suffered no
loss of work.
Two weeks after employee Priola's Minocqua accident
and permanent suspension, employee Gonzales, on a
charter to Scranton on September 4, 1977, backed his
bus into a low hanging tree branch, which he claimed he
did not see and punctured the fibreglass roof of the bus.
On September 6, he filed an accident report given him
by Bayr, but he was not suspended, warned, or repri-
manded. When Gonzales talked to Operations Manager
Kopacz on September 7, Gonzales asked, "When do I
start my suspension," and according to Gonzales,
Kopacz chuckled and shook his head.
Operations Manager Kopacz testified that an accident
report is required in every case when a driver is in-
volved in an accident and that he looks at the reports to
determine all of the conditions and circumstances of the
mishap and whether it is chargeable to the driver or ex-
cusable and decides whether to suspend, reinstate, or dis-
charge him after taking into account all of the factors.
Kopacz made no semblance of even a pretense of follow-
ing this procedure in employee Priola's case, but dis-
charged him summarily (calling it an indefinite suspen-
sion) even before the accident report was completed by
Priola, and admittedly without knowing the facts of the
case or discussing it with Priola.
788
KEESHIIN CHARTER SERVICE, INC
Moreover, unlike contemporaneous suspensions in
cases of other drivers that Operations Manager Kopacz
discussed, where decisions were made to reinstate or dis-
charge the affected driver in 2 or 3 days, employee
Priola was never notified of an investigation or decision
on the so-called suspension. Kopacz said that in the case
of driver Stewart, whom he suspended for an accident in
Wisconsin, Stewart was reinstated in 3 days after Kopacz
discovered that another vehicle contributed to the acci-
dent. In driver Noah Nelson's case Kopacz said he sus-
pended Nelson 2 days after an accident in August 1977,
and discharged him I or 2 days later after review of a
series of accidents Nelson had in a 6-month period. Em-
ployee Heuerman, who was a senior employee and had
contemporaneously been a driver representative, con-
firmed that suspensions were typically resolved in 2 or 3
days.
Lastly, employee Priola himself had had a few minor
accidents prior to the Minocqua accident, but these had
been discussed with him each time and there had been
no warnings or suspensions. His first accident had oc-
curred in October 1976, when, in taking his bus out of
the garage, the bus scraped the bumper of a car parked
partially and illegally in the exit. Priola testified he filled
out the report form (G.C. Exh. 9) and discussed it with
Keeshin and Bayr who both told him they were aware
of the illegal parking. There was no warning or suspen-
sion given him.
Employee Priola's second accident occurred in Febru-
ary 1977 on the Chicago outerdrive on an S-curve where
an already damaged vehicle pulled into the right side of
his bus on the curve. Priola said there was a suspicion
that this was deliberate to collect for the damage previ-
ously suffered by the damaged vehicle. Priola reported
to the police, then filed his report with General Manager
Bayr (G.C. Exh. 8). There was no written warning to or
suspension of Priola.
Employee Priola's third accident happened in July
1977, at Green Spring, Wisconsin, on a steep, winding,
narrow road leading to the "House on the Rock," a
sightseeing spot. According to Priola (Resp. Exh. 1), a
car going in the opposite direction of his bus hit the side
of the bus, but the driver of the car failed to provide the
exchange of information at the time. Priola said that he
discussed the matter with General Manager Bayr and
Operations Manager Kopacz, and later Bayr heard from
the driver, but there were only a few scratches on both
vehicles, and Bayr told Priola there was not much to the
matter, and Kopacz told him it appeared he could not be
blamed. There was no warning to or suspension of
Priola.
Apart from these three accidents, Operations Manager
Kopacz referred to an occasion when employee Priola
had taken a party of employees of the Andersen Compa-
ny from St. Charles to O'Hare airport and admittedly
missed a turnoff that cost him more time than ordinarily
was needed in getting to the airport, with the alleged
result that some of the passengers missed their flights.
There was a question whether a customer had reported
the matter by letter; Priola was not shown a letter, and
there was none in the Respondent's files. Kopacz con-
ceded that other drivers had been late as much as an
hour in similar carriage of passengers to the airport with
resulting missed flights. Priola was not reprimanded or
suspended for the incident.
Conclusion
The circumstances surrounding employee Priola's dis-
charge or permanent suspension on August 20, 1977, es-
tablish that his performance as a driver was not the moti-
vating cause for his discharge. Indeed there are, in Re-
spondent's files, letters of commendation and praise from
customers for his performance (G.C. Exh. 2, February
1977, G.C. Exhs. 3 and 4, June 1977), indicating that he
was expert in his driving, courteous, helpful, and liked
bv the customers, all qualities that Operations Manager
Kopacz indicated are important for the charter business.
The few accidents or other mishaps appeared to have
been minor and of a nature not unusual in this business of
almost perpetual movement of vehicles and passengers
on the streets and highways. Clearly, Respondent did not
view any of the matters, prior to August 19, 1977, as de-
serving of warning, reprimand, or suspension.
The suspension and denial of work on August 20 and
thereafter used the August 19 Minocqua accident as a
pretense to permanently separate employee Priola from
his employment. The permanent suspension was accom-
plished without any discussion of the facts of the acci-
dent between employee Priola and any of the three su-
pervisors or members of management, and specifically
without Operations Manager Kopacz (who would nor-
mally determine a suspension or discharge) knowing the
facts of the accident from anyone when he imposed the
suspension. This was a clear departure from the proce-
dure theretofore or thereafter practiced by Respondent.
Kopacz's claim that, because he had learned from some-
one-he did not know whom-that the accident in-
volved a rear-end collision, it meant that suspension or
even discharge was automatic was pure fiction. The evi-
dence established that Respondent had no such rule or
automatic practice for rear-end collisions but on the con-
trary took into account all of the circumstances of an ac-
cident, including cases of rear-end collisions, before in-
voking suspension or discharge. The unusual departure
from established practice was accentuated by the perma-
nent suspension even before Priola had been given and
completed the required accident report form, the unac-
counted-for delay of 3 or 4 days by General Manager
Bayr in providing Priola with the accident report form,
Kopacz refusing in the interim to provide the form when
Priola asked for it (though admittedly it was manage-
ment's function to supply the accident form without the
employee asking), and the absence of an investigation
and resolution of the suspension in the usual period of 2
or 3 days.
The eagerness to get rid of employee Priola and dis-
pensing with the usual practices in handling accident
cases can be explained only by President Paul Keeshin's
union animus and his hostility to Priola, whom Keeshin
regarded as the Italian who had initiated the union orga-
nizing-and told Priola so, directly, before the discharge,
as well as employee Gonzales, after the discharge. Short-
ly after the discharge, Keeshin reiterated on August 26
7X9
I)ECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
what had been on his mind in causing the permanent sus-
pension of Priola, and revealed that it had been a dis-
charge for antiunion reasons and not a temporary suspen-
sion pending investigation of the employee's accident,
when he loudly proclaimed to General Manager Bayr
and employees within reach of his voice his anger at
Priola for having taken part with the Union in represent-
ing the employees at the Board hearing, and directed
that Priola be arrested for trespassing if he came onto
Respondent's property. Keeshin buttressed what he had
expressed to others on August 26, by ordering Priola off
Respondent's premises when Priola came in on Septem-
ber 1 to return personal property of Respondent's previ-
ously furnished him as a driver.
Accordingly, I find that employee Priola was unlaw-
fully and discriminatorily discharged by Respondent on
August 20, 1977, in violation of Section 8(a)(3) and (1) of
the Act, in retaliation for his union activities and in order
to discourage union adherence and support by Respond-
ent's employees.
2. Employee Heuerman
As already noted above, employee Joseph Heuerman
was an employee who regularly had driven charter buses
for Respondent since April 1971. He appeared to enjoy
the confidence and respect of his fellow drivers, who
had chosen him in 1976 as driver representative of an in-
house drivers association, apparently established and
used by Respondent President Paul Keeshin as a means
of dealing with the drivers as a group, following the
demise of employee representation by a union prior to
Heuerman's employment.
After employee Priola had interested the employees in
June 1977 in organizing a union and getting the help of
the International AFL-CIO, and ultimately of the Retail
Clerks Union Local 1550 (the Union), the interested em-
ployees apparently turned to employee Heuerman to do
the organizing and get the union authorization cards dis-
tributed and signed, actually twice because of the inap-
propriateness of the first set of cards. Indeed, Heuerman
got a considerable part of the distribution and signing
completed in the drivers' room on Respondent's prem-
ises.
President Keeshin became aware of the union activity
and the leadership of employees Heuerman and Priola,
and, as recounted above, confronted them both separate-
ly, as well as other employees on the subject of the
Union. Among other things, Keeshin accused Heuerman
of trying to force a Union down Keeshin's throat, and
Keeshin coercively interrogated Heuerman regarding
card signing and distribution and threatened to sell or
close the business rather than accept the Union, in viola-
tion of Section 8(a)( ) of the Act.
Employee Heuerman was an experienced driver of
passenger buses when he began his employment with Re-
spondent. Indeed, President Keeshin had sought him out
to come and work for Respondent back in 1971. Immedi-
ately prior thereto, Heuerman had been working for 6
years as a bus driver for LaGrange Transit Company.
Heuerman's record of performance for Respondent was
good, and in his 6-1/2 years of driving for Respondent
he was involved in only three accidents, each of a minor
nature. In the fall of 1971, his bus ran into the rear of a
car on slick pavement during a rainy day and he filed an
accident report, though the damage was minor: in March
1975, on an itinerary of a professional basketball team,
his bus struck a car in the rear when the bus brakes
failed to slow properly and he filed a report (G.C. Exh.
18), the damage to the car was $46 and none to the bus;
and in August 1976, a motorist tried to squeeze her car
between Heuerman's bus and the curb when the bus was
making a right turn at a traffic signal and her left front
bumper hit the left rear panel of the bus, the damage to
each estimated at $100 (G.C. Exh. 19). In none of these
instances was Heuerman reprimanded or suspended.
When Heuerman came to work for Respondent in
1971, he was then working on a restricted driver permit
for 3 months. This meant that his Illinois driver's license
had been temporarily suspended for the period for a traf-
fic violation or violations, but he had been issued a
"hardship" license or restricted permit by the state li-
censing authority which permitted him to drive for busi-
ness purposes but curtailed his right to drive for nonbusi-
ness purposes until the suspension period expired. There
was no evidence that Respondent was aware of the sus-
pension and restricted permit; President Keeshin who
fired Heuerman did not testify and Operations Manager
Kopacz did not commence his employment till later.
However in 1975, employee Heuerman's license was
suspended again, in October 1975, for 1 year. This time
Respondent was fully aware, the suspension was dis-
cussed with General Manager Bayr before it became ef-
fective, and Respondent provided the state licensing au-
thority with a letter (then needed for a hardship license
under existing regulations) describing Heuerman's work.
It took some time before the hardship license or restrict-
ed permit was issued, but meantime Heuerman was per-
mitted to apply for an earlier temporary permit on a
written test and driver's test, for which Respondent sent
along one of its employees to provide Heuerman's trans-
portation. He obtained the temporary driving permit and
later the hardship license or restricted permit. In the
period when he was not driving, Respondent gave
Heuerman full-time work inside the garage, including
several weeks of remodeling work.9
In October 1977, employee Heuerman was given
notice that his driving license would be suspended again,
as a result of a traffic violation in Vilas County, Wiscon-
sin, in March 1977, for driving 65 miles per hour in a 55-
mile-per-hour zone. Heuerman had contested the charge
but lost, and the Wisconsin motor vehicle bureau had no-
tified the Illinois bureau, as a result of which Heuerman
was notified on October 1, 1977, that his driver's license
would be suspended for I year effective October 28,
1977 (G.C. Exh. 21).' ° The notice indicated that he
9 It should be noted that Reslpondent had and has a rule (G C Exh
43). under which it offered and provided garage work on an 8-hour day
basis to all drivers during slack periods. Slack periods usually com-
menced in late fall and continued through the winter.
"' Employee Heuerman had two prior traffic violations (one on a
guilty plea, one on a tbond forfeiture). the first in November 1976 in
Champaign Cioulty. Illinois,. for driving b5 miles per hour in a 55-mile-
per-hour 7zone. and the second in December 1976 in Dane Count). Wi,-
cornsin. for passing a truck at 70 miles per hour
790
KFI:SIIIN CHARTFRR SERVICFE.. INC
might seek relief and Heuerman testified that he immedi-
ately applied to the Illinois Secretary of State for a hard-
ship license (this time he apparently did not need the em-
ployer's certification under a change in prior law or reg-
ulation) and had forwarded his license with the applica-
tion as required; he had been informed that the notice of
suspension, to become effective October 28, served, in
lieu of his license, as entitlement to drive until October
28.
Meantime, on Monday, October 17, 1977, employee
Heuerman filed with Respondent information that it re-
quired annually of each driver under ICC regulations, in-
cluding a certification of traffic violations in the past 12
months showing the three traffic violations noted above
(Resp. Exh. 6), and his notice of license suspension (in
lieu of his license), and his medical examination certifi-
cate. Heuerman told Operations Manager Kopacz that he
had already filed for a hardship license, and Kopacz
made and retained photostat copies of the suspension
notice and medical certificate, returning the originals to
Heuerman.
When employee Heuerman checked the assignment
board, thereafter, he observed that he was not scheduled
for work for the ensuing several days. He asked Oper-
ations Manager Kopacz why, and Kopacz replied he
would have to talk to the company attorney before he
could put Heuerman back to work. Heuerman comment-
ed that, if it was a matter of the license, he had applied
for a hardship license and would have it before the sus-
pension became effective, meantime his suspension notice
was as good as a license, and as good as Kopacz' license,
until at least October 28. Kopacz answered he would still
have to talk to the company attorney about it.
Later that same morning, October 17, employee
Heuerman, sitting at the table in the drivers' room,
talked to President Paul Keeshin. Heuerman asked Kee-
shin if he was using Heuerman's driver's license as a way
of getting back at him for his union activities. Keeshin
replied that his lawyers had advised him not to talk to
employees about such matters, nevertheless he had heard
that Heuerman had sat at that same table and passed out
union cards.
Still later that day, when President Keeshin saw em-
ployee Heuerman in the garage, Keeshin asked Heuer-
man what he was doing in the garage and why his car
was in the garage when he did not have a driver's li-
cense. Heuerman asserted that for the time being his li-
cense was as good as Keeshin's. Heuerman handed Kee-
shin the suspension notice. Keeshin took it and photostat-
ed it, according to Heuerman, then came back and
handed Heuerman the original, saying it was as good as
driving with a ticket for a traffic violation. (Under Illi-
nois practice, it appears that where a recipient of a traffic
violation ticket or summons surrenders his driver's li-
cense in lieu of posting bond pending disposition of the
ticket, the ticket serves as a substitute for the license au-
thorization to drive.)
Actually, 4 days later, on October 21, employee
Heuerman received from the office of the Illinois Secre-
tary of State, his hardship license labeled "restricted
driving permit," effective from October 28, 1977, to Oc-
tober 28, 1978, the period of the suspension, authorizing
him to operate a commercial vehicle for transportation
of persons or property in futherance of a commercial en-
terprise, and to drive his personal vehicle to and from his
place of employment (G.C. Exh. 22). As a result, insofar
as the notice of intended suspension might have adverse-
ly affected Heuerman's ability to drive for Respondent.
for all practical purposes it never went into effect, and at
no time in 1977 (or thereafter) was Heuerman without a
license to drive for Respondent or any other business.
However, employee Heuerman had already been noti-
fied by Respondent that he had been fired on Wednes-
day, October 19, when Heuerman called General Man-
ager Bayr and asked if there was work for him. Bayr
said the assignment board was not completed and he
would call Heuerman back. Bayr called Heuerman back
the same day and told him that Bayr had a notice from
President Keeshin that Heuerman's work with Respond-
ent was ended because of his suspended license and be-
cause Respondent's insurance company would not insure
the company vehicles with Heuerman as a driver. Heuer-
man asked Bayr for a copy of the notice but Bayr told
him he could not have a copy.
General Manager Bayr, who testified, gave not a word
of testimony concerning Heuerman's discharge, and
Heuerman's testimony on the subject was undenied. Op-
erations Manager Kopacz testified that he made the deci-
sion to temporarily suspend Heuerman, and while he
normally would have been the supervisor to make the
decision on whether to discharge Heuerman or not,
Kopacz did not make or even participate in the decision.
And, as already noted, President Keeshin, who obviously
made the decision to discharge Heuerman, did not tes-
tify.
The alleged refusal by Respondent's insurance compa-
ny to insure company vehicles with Heuerman as a
driver, related by Bayr to Heuerman, was not true when
Heuerman was discharged. Respondent's insurance carri-
er was then the Travelers Insurance Company and, as re-
lated by an insurance broker, Goldman, whom President
Keeshin engaged to find him cheaper insurance, Travel-
ers had already provided Respondent with a renewal of
its policy. Goldman's testimony was that Respondent's
insurance cost was rising yearly, but not because of any
special or unusual circumstances created by Respondent's
drivers, rather because the general cost of transportation
insurance had escalated rapidly over the past few years.
Goldman said he had undertaken to find a cheaper re-
placement policy. The Traveler's policy was continued
through October 1977, and for November and December
1977 Goldman placed the coverage with a National In-
demnity Insurance Company, but did not identify the ul-
timate replacement insurance carrier. Goldman noted
that, in obtaining voluntary insurance coverage (as distin-
guished from assigned risk insurance, which he viewed
as inadequate), the insurance companies are interested in
the accident history of the prospective customer and its
drivers and their records of traffic violations. While he
did not claim to be specifically knowledgeable as to
which of Respondent's drivers had histories that might
create a cost or coverage problem in obtaining new vol-
untary insurance, he did claim that the temporary insurer
791
IE1)CISIO)NS OF NA IIONAL LABOR RELATIONS BOARD
for the last 2 months of 1977, National Indemnity Insur-
ance Company, issued an endorsement (for which Gold-
man disclaimed responsibility) for the second month, De-
cember, excluding liability for loss or damage while a ve-
hicle was driven by anyone of three named persons,
Joseph Heuerman, Harold Woodin, and Benjamin
Gerace (Resp. Exh. 16, dated November 16, 1977).
Conclusion
It may be that ultimately Respondent might have had
an insurance cost or insurability problem with employee
Heuerman; however, that did not appear to be the real
problem or cause of discharge when Heuerman was sus-
pended on October 17 and notified on October 19, 1977,
that he had been discharged.
Respondent had an ongoing union campaign among its
employees and an upcoming Board election. President
Keeshin was strongly opposed to the Union; was aware
of employee Heuerman's leadership in promoting the
Union; had confronted Heuerman and others on the sub-
ject, accusing Heuerman of trying to force the Union
down Keeshin's throat, of pushing the signing of union
authorization cards, and of letting down the other mem-
bers of the drivers' association in not opposing the
Union; had threatened that he would sell the place or
close the doors rather than let a union in; and finally, on
the eve of the discharge, had admitted to Heuerman that
he was getting back at him through the driver's license
problem for his union activities. Respondent's handling
of Heuerman's driver's license problem in October 1977
was in marked contrast to its handling of the similar
problem for Heuerman in October 1975, when Respond-
ent gave him help and time in obtaining a hardship li-
cense and continuous employment, including garage
work, so that he suffered no loss in income.
President Keeshin made no attempt to deny these
facts, and they comprise a clear-cut case of a retaliatory,
discriminatory discharge of the employee because of his
union activities and leadership, to discourage union activ-
ities and membership of Respondent's employees, in vio-
lation of Section 8(a)(3) and (1) of the Act. And, see,
Borek Motor Sales, Inc. v. N.L.R.B., 425 F.2d 677, 680-
681 (7th Cir. 1970), cert. denied 400 U.S. 833, holding
that even the presence of valid grounds for an employ-
ee's discharge does not legalize a dismissal which was
nevertheless due to a desire to discourage union activity.
E. Voter Eligibility
The representation election among Respondent's em-
ployees was held on February 15, 1978, pursuant to a de-
cision and direction of election of November 16, 1977
(G.C. Exh. 2).
The decision and direction of election defined the ap-
propriate unit to comprise all full-time and regular part-
time charter bus drivers, mechanical employees, and
maintenance employees employed by Keeshin Charter
Service, Inc., at its facility located at 705 South Jeffer-
son, Chicago, Illinois, but excluding all office clerical
employees, all guards, and supervisors as defined in the
Act.
The balloting produced a tie vote of 14 votes for the
Union and 14 votes against the Union, with 6 challenged
ballots that could affect the outcome of the election.
(Supplemental decision of the Regional Director on chal-
lenges and objections of April 4, 1978, Exh. I(a).)
The challenged ballots were those of bus drivers
Joseph Priola and Joseph Heuerman, and bus cleaners
James Patterson, Sylvia Brooks, Theodore Washington,
and Beatrice Washington. The latter two also performed
work as office cleaners. The Union contested the eligibil-
ity of employee Brooks and Respondent contested the
eligibility of the other five.
1. Joseph Priola and Joseph Heuerman
Because, as held above, full-time drivers Priola and
Heuerman were unlawfully discharged before the elec-
tion of February 15, 1978. they were nevertheless enti-
tled to vote as part of the unit, and having voted, their
ballots should be counted.
2. James Patterson
Employee James Patterson was hired by Respondent
in 1974 as a full-time bus cleaner and worked continuous-
ly into May 1977.
As stipulated by the parties, a bus cleaner is an em-
ployee properly included under the designation "mainte-
nance employee" in the unit description, and is distin-
guished in function from a "mechanical employee" (in-
cluded in the same unit description) who, as an auto-
mobile mechanic, performs the mechanical repairs and
mechanical maintenance of the buses. The job of the bus
cleaner, said Kopacz, is to clean and mop the interior of
the bus, vacuum and clean the seats, clean the bus lava-
tories, wash the exterior of the bus, check its tires, gaso-
line, and oil, and replenish the disinfectant in the bus lav-
atory.
In May 1977, Patterson became ill and required imme-
diate hospitalization for a hemorrhoid operation and
treatment for diabetes. He remained in the hospital about
2 months and, though sent home, he was not released as
able to work until December 29, 1977 (Exh. 1).
Operations Manager Kopacz testified that, as in the
case of the bus drivers, he, along with and responsive to
General Manager Bayr, was the immediate supervisor of
the maintenance and mechanical employees. Kopacz said
that Patterson had been a satisfactory employee, and that
his hospitalization was sudden. Kopacz was told of it by
Patterson's wife and claimed he did not know the nature
of Patterson's illness.
Kopacz testified that he substituted part-time bus
cleaner Alonzo Cummings in employee Patterson's full-
time place after the latter was hospitalized, and hired an
additional part-timer to replace Cummings to complete
the then needed complement of three full-time and four
part-time bus cleaners. Kopacz conceded that he did not
tell Cummings that he was replacing Patterson, and that
he did not tell Patterson that he had been replaced or no
longer had a job with Respondent, in the half dozen con-
versations between them in 1977 after Patterson became
ill, including Patterson's visits to the garage. Rather, said
Kopacz, in those conversations he was silent about the
792
KEFI'SHIN CItARTFR SFRVIC'E INC
job, Patterson gave no indication of being ready to work,
and he, Kopacz, did not ask him if he was. When on De-
cember 1, 1977, Patterson's wife came to him with a
form for obtaining public assistance from the State of Il-
linois, Kopacz completed and signed as operations man-
ager the portion of the form indicating that Patterson
was formerly employed by Respondent from 1973 to
June 5, 1977, as a bus cleaner averaging a weekly wage
of $191.61, that he left because of sickness and was not
eligible for any financial benefits from the firm, and that
the firm would rehire him (Exh. P-l).
Patterson testified that in 1977, during and following
his hospitalization, he talked on several occasions on the
phone to General Manager Bayr, who said nothing about
his being tired or being permanently replaced, but on the
contrary told him to get well and come back to his job.
Bayr gave no testimony on the subject or regarding Pat-
terson at all. Patterson also testified that he kept his per-
sonal belongings in Respondent's lockers in the garage
and had a garage key, and on one occasion Bayr called
Patterson about getting an air hose from Patterson's
lockers but made no request that he remove his belong-
ings from the lockers or surrender his garage key. How-
ever, Patterson conceded that he was not told that his
job was guaranteed.
In early 1978, having been informed on December 29,
1977, that he was medically released to return to work,
Patterson called Respondent and talked to Operations
Manager Kopacz, telling him of the release and that he,
Patterson was coming back to work. According to the
testimony of both men, Kopacz told Patterson that
things were slow, it was not the busy season, and that
Kopacz did not have work for him then; but Kopacz did
not tell Patterson that he had been replaced or that he no
longer had a job. Patterson said Kopacz told him to call
again.
Paterson had difficulty in obtaining in writing the
medical release to return to work, and had to go several
times to the clinic to catch the surgeon who had treated
him, but finally got the written release on February 16,
1978, the day after the representation election (Exh. E-l,
dated February 16), stating that the doctor had seen Pat-
terson on December 29, 1977, and that he could return
to work on December 29, 1977. Patterson took the writ-
ten medical release to Respondent, and as he and Kopacz
testified, was taken to see President Keeshin. Keeshin
would not look at the release, said Patterson, but, as he
and Kopacz testified, told Patterson that he had been re-
placed and was discharged.
Operations Manager Kopacz testified that former part-
time employee Cummings who had substituted for Pat-
terson in his absence was still working, but a new em-
ployee Hammond who had substituted for Cummings
had left in the fall of 1977 and was replaced in the part-
time job by a new employee, Juan Washington, who was
still there.
Respondent argues that employee Patterson had no
reasonable expectation of reemployment as of the date of
the election, hence was ineligible to vote. The Union
contends that Patterson was on a leave of absence for
medical reasons with full expectation of returning to
work and was eligible to vote.
Patterson went to the hospital under apparent emer-
gency conditions in May 1977. hence there was no ad-
vance opportunity for a formal or agreed leave arrange-
ment. Nevertheless everything material that happened
thereafter right up to the election is consistent with an
understanding between Patterson and his supervisors that
he was on medical leave and would be restored to his
work when he was again able to work. During his stay
at the hospital and in post-hospital convalescence at
home in the balance of 1977. General Manager Bayr told
Patterson to get well and come back to his job While
Operations Manager Kopacz arranged for a part-time
employee to cover Patterson's full-time schedule,
Kopacz was careful not to tell the substitute that he was
replacing Patterson, and Kopacz was equally careful not
to tell Patterson that he had been replaced. On Patter-
son's visits to the garage, during convalescence, nothing
was said by Kopacz to alter the understanding. There
was no manifestation on the part of the employer that it
had terminated or was terminating the employment rela-
tionship clearly communicated to the employee, which
manifestation and communication would appear to have
been essential for a termination, .L.R.B. v. Staiman
Brothers, 466 F.2d 564, (3d Cir. 1972). " On the contrary
the manifestations noted above were the other way. In
addition, Bayr, who was aware that Patterson kept his
belongings in the garage lockers and had a garage key,
made no effort to ask for return of the key or removal of
Patterson's belongings from the locker.
Kopacz' completion of the public aid form for Patter-
son on December 1, 1977, was not inconsistent with the
relationship. Within the generalities of such a form, it
was indicated that Patterson had last worked for Re-
spondent in June 1977, had left because of sickness, and
Respondent would reemploy him.
In early 1978, after having obtained his medical release
to resume work at the end of December 1977, employee
Patterson notified Operations Manager Kopacz that he
had been so released and would come in to work; how-
ever, Kopacz only said that things were slow then, and
to call back again. Consistent with the ongoing under-
standing, Kopacz did not say to Patterson that he had
been replaced or discharged.
Patterson voted in the February 15, 1978, election and
was challenged by Respondent. He was finally able on
February 16 to obtain the written evidence of his earlier
medical release and took it to Respondent, and, for the
first time, was told by Respondent President Keeshin
that he had been replaced and was discharged. The noti-
fication of termination of his job came too late to dis-
qualify Patterson from voting in the election already
I In that case, similar Io the facts here. the challenged voter had heen
hospitalized for 22 days commencing in Sepiember 1969 and had nol set
returned to ¥work when he 'oled in the March 16, 1970. election tIhe
court agreed with the Board (189 Nl RB 314) that Ihere had been no ter-
mination by the employer of the emplo ,ec relationship and the emplos-
ee's cligihiliti to . ote prior to the election. hut disagreed with the
Board's denial o)f a hearing on an issue no invo lsed here. viz alleged
newly disco,.eired esidence Ihat the emnplosee had himself termiialted the
employer relationship h, applsing l-ir pernmanent and total disaihlit 5
benefit, hich .s,)uld a.ppear tu ha e nhlicated that he '.a inc apahle of
all! eillplois nellt
7`11
I)E'CISI()NS ()F NA'I()ONAL. LABOR RELATIONS BOARD
held, N.L.R.B. v. Pacific Gamble Robinson Co., 438 F.2d
112, 113 (9th Cir. 1971). And see American Miotors Corp.,
206 NLRB 287, 291 (1973); and Components, Inc., 197
NLRB 163, 173 (1972), supporting eligibility to vote of
employees in inactive work status because of illness or
surgery.
Employee Patterson was eligible to vote in the Febru-
ary 15 election and his ballot should be counted.
3. Sylvia Brooks
Brooks began working for Respondent as a part-time
bus cleaner in 1975, working over a period of about 6
months that year. Employee Beatrice Washington cor-
roborated that Brooks worked as a bus cleaner in 1975
and was helpful in informing Washington of the job op-
portunity which she obtained, as did Washington's hus-
band, Theodore.
Brooks also worked in 1975 and in the subsequent
years 1976, 1977, and 1978, in the home of Respondent
President Keeshin, doing household work two or three
times a week.
Brooks did not work for Respondent in 1976, but did
work for a period in 1976 for the Zenith Television
Company.
In 1977, beginning with the week ending October 9,
1977, and terminating in the week ending March 5, 1978,
Brooks worked again for Respondent as a part-time bus
cleaner and continued her 2 or 3 days per week work at
the Keeshin household. A month later, in April 1978,
Brooks began her present job as a child care worker in a
home for adolescent girls, but continued her work in the
Keeshin household.
For her bus cleaning work, Brooks was paid by com-
pany check, for her household work she was paid cash
by Keeshin's wife.
The Union claims that Respondent brought employee
Brooks into the garage as a bus cleaner in October 1977,
after the union representation petition had been filed, as
a person whom Respondent counted upon to vote
against the Union by reason of her regular and continu-
ing association with the Keeshins as a worker in their
household; and that, therefore, Brooks did not share a
community of interest with the other employees of the
bargaining unit. The Union contends that Respondent's
object was transparent because Brooks was brought in
for the winter months of 1977-78, when the charter serv-
ice business was admittedly slower than in the summer
months, and Respondent had stopped assigning Beatrice
and Theodore Washington to bus cleaning work.
Respondent counters that there was no evidence or
imputation of any special status for Brooks, or special re-
lationship between her and Respondent's management,
by reason of her holding a second part-time job in the
Keeshin household.
I am inclined to agree with Respondent's contention
and to view the Union's claim as speculative. While the
charter service business was slower in the winter months,
it was a year-round business that did not come to a halt
at any time, and the need for bus cleaners continued
throughout the year. The Washingtons had been assigned
to office cleaning beginning in 1976, in addition to bus
cleaning for which they were hired, and continued to do
both until their scheduling for bus cleaning was stopped
in the fall of 1977, under circumstances that suggested
dissatisfaction with Theodore Washington's performance
as a bus cleaner. Hence the engaging of the one addition-
al person (Brooks), for work where two were no longer
scheduled, was not so disproportionate, in the absence of
other facts, as to suggest some improper motive, or to
infer a special relationship with Respondent. Moreover,
prior to 1977, Brooks had already worked for Respond-
ent as a bus cleaner and was aui experienced employee
when reemployed.
As a regular part-time bus cleaner for the 4 months
before and at the time of the election, employee Sylvia
Brooks was eligible to vote and her ballot should be
counted.
4. Beatrice Washington
B. Washington began work for Respondent in April
1975. She was interviewed and hired by General Man-
ager Bayr, as a bus cleaner. Her friend, Sylvia Brooks,
had told her of the possibility of the job. Indeed, B.
Washington also worked, for the first 3 months of her
job, at the Keeshin home doing Brooks' cleaning work
for 2 days a week in order to hold that job for Brooks,
who was coming back to it. Bayr did not hire Beatrice
Washington for the household work.
Employee Washington started working for Respond-
ent as a bus cleaner, doing between 2 and 4 days work
per week, the hours ranging between 8 and 12 per day.
Operations Manager Kopacz put up a work schedule for
each bus cleaner by name, but, as B. Washington testi-
fied, only the starting times were posted, her day ended
when the buses were cleaned. Employee Washington tes-
tified that she was paid on an hourly basis and punched
the timeclock used by all employees.
About 9 months after her job began, in early 1976, Op-
erations Manager Kopacz assigned B. Washington and
then her husband Theodore, who had also commenced
work as a bus cleaner in April 1975 additional work,
cleaning, what he referred to generally as the offices.
These actually comprised in addition to the three offices,
the washrooms, the kitchen or drivers' room, and the
drivers' bunk room. As Kopacz testified, Respondent
never had an outside service doing office cleaning.
According to B. Washington and Kopacz, she usually
worked at bus cleaning on Mondays and Wednesdays,
and at office cleaning Tuesdays and Thursdays after 3
p.m., or after the occupants had left, and on Sundays
starting whenever convenient. Bus cleaners, said Kopacz,
worked very irregular hours, usually more at night than
during daytime, and including Sundays and holidays.
With her husband working when she did and with her,
the office cleaning could usually be completed by 9 p.m.,
and they had permission to put in additional hours on
bus cleaning, assigned by the head cleaner, John Beckon,
when Kopacz was not there. Kopacz said hourly pay for
the bus cleaning and office cleaning was the same.
In 1976 and until approximately September 1977, T.
Washington and B. Washington continued to clean buses
and the offices, in the busy times picking up additional
bus cleaning hours including time on Fridays and Satur-
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KEESIIIN CHARTER SERVICE. INC
days, but in the slack times doing little or no bus clean-
ing and predominantly the office cleaning.
Starting sometime in September 1977, according to B.
Washington, her name and her husband's name stopped
appearing on the bus cleaning assignment lists prepared
by Operations Manager Kopacz. Kopacz testified he had
stopped the scheduling of Theodore Washington for bus
cleaning because of a comment by General Manager
Bayr expressing dissatisfaction with a particular bus
cleaning job Theodore Washington had done. Strangely,
Kopacz did not explain why he also stopped scheduling
Beatrice Washington, and conceded that he did not
notify either of the Washingtons that they were not
being scheduled for bus cleaning work. Theodore Wash-
ington, in his testimony, indicated he had direct aware-
ness of General Manager Bayr's criticism, but claimed
that he had corrected, to Bayr's satisfaction, in daylight
the streaking of the bus ceiling that was not visible in the
night light when he first cleaned the bus.
In any event, the Washingtons continued with the
office cleaning work and B. Washington assumed that
there was no bus cleaning work available then for them,
until they had a conversation on the subject in October
1977, with Leadman John Beckon. Beckon had been
saying he needed help with the bus cleaning and Theo-
dore Washington offered the help of himself and his
wife, but Beckon answered that the "big man," President
Keeshin, had said under no circumstances were the
Washingtons to clean buses. However, Beckon was con-
cededly not a supervisor within the meaning of the Act
and the evidence was that neither Supervisor Bayr nor
Kopacz had notified the Washingtons that their jobs as
bus cleaners had been terminated.
The Washingtons continued with the office cleaning
and continued to be paid for it through 1977, by separate
checks to each, as in the past.
Although Operations Manager Kopacz did not fire
Theodore Washington, he ceased to work commencing
in 1978. However, Beatrice Washington continued with
her office cleaning work in January and February,
through the election of February 15, and quit her job at
the end of February 1978.
In the supplemental decision of the Regional Director
on the challenges (RD Exh. I(a)), he noted that the
office cleaners were not mentioned in the Decision and
Direction of Election (RD Exh. 2). However, the gener-
al description "maintenance employees" is sufficiently
broad to include office cleaners as well as bus cleaners,
and inclusion of the part-time office cleaners was well
within the intent of the decision, if not the intent of the
parties, keeping in mind that the intent was to include all
regular and full-time employees other than office cleri-
cals. 12 Compare Apple Tree Chevrolet, 237 NLRB 867
(1978), holding that janitors who were not mentioned in
an election agreement were includable under the unit de-
scription "maintenance employees."
il Office clericals were excluded because by reason of their separate
supervision; their precise daytime hours ending at 5 p m, Monday
through Friday. different from the irregular imprecise hours of the other
employees: salaries instead of hourly pay, and physical separation from
the other employees, they wsere deemed not to share a community of in-
teresl with the other employees
Nevertheless, Respondent has argued that Beatrice
Washington, as an office cleaner, did not have a commu-
nity of interest with the other employees in the unit and
should be excluded from it. The Union contends that B.
Washington was and remained through the election a
dual-function employee, namely; bus cleaner and office
cleaner; and that even if she were regarded as solely an
office cleaner at the time of the election she still shared a
community of interest with the other employees of the
bargaining unit.
I think the Union is right on both counts. B. Washing-
ton (and her husband) were both hired as bus cleaners.
worked as such since April 1975. and neither Operations
Manager Kopacz nor General Manager Bayr told them
they were no longer bus cleaners at any time, even
though Kopacz stopped assigning bus cleaning work to
them in the fall of 1977. Such a drop in assignment was
not unusual for them in the slow months of the year. Be-
sides, the Washingtons had also been assigned to and
continued with the second function of office cleaning.
which in busy times they performed along w ith bus
cleaning; and there was no break or change in their em-
ployment status until early 1978, when they ultimately,
quit, T. Washington before the election, and B. Washing-
ton after the election of February 15.
Viewed solely as an office cleaner, B. Washington still
continued her community of interest with the other em-
ployees. From the testimony of Operations Manager
Kopacz, supplemented by her own, it was established
that as a regular part-time office cleaner Beatrice Wash-
ington received the same pay as a regular part-time bus
cleaner; '3 punched the same timeclock punched by the
bus cleaners, drivers, and mechanics; was under the same
supervision of Bayr and Kopacz, as were the bus clean-
ers, drivers, and mechanics; worked the same irregular
and largely night hours as well as Sunday hours that
were typical of and overlapped with the bus cleaners and
many drivers; and, in that regard, was on the premises
including the offices, drivers' room, bunk room, and
garage when bus cleaners, including her friend Sylvia
Brooks and the drivers were present (but not the office
clericals). In this connection, as described above, the of-
fices-drivers' room-bunk room complex is separated from
the unpartitioned garage area, where the buses pull in for
cleaning, checking, and repairs, by merely a door, so that
one can step directly into the garage area from the office
complex, or into the office complex from the garage
area.
Beatrice Washington had no community of interest
with the office clericals, whom she did not see and who
were gone when she cleaned the general office in which
they worked, who worked 5 days a week from 9 a.m. to
5 p.m. at a salary as compared to her irregular nightly
and Sunday hours for hourly pay, and who were super-
vised by controller Phil Edelheit in contrast to her su-
pervision by General Manager Bayr and Operations
Manager Kopacz.
No other labor organization sought to represent the
office cleaners, and they could not have been included in
':' Neither part-time hus cleaners or offict cleaners were entitled io [hto
holidays or holiday pas of full-time bus cleanters
I)L CISI()NS O()F NATIONAl I.AROR REL.ATIONS BO()AR[)
a unit of office clericals. The Washingtons appropriately
fitted into the unit description of maintenance employees,
in their capacity as office cleaners (as well as in their
combined capacity as bus and office cleaners). See AIpple
Tree Chevrolet .supra.
Having been part of the unit and eligible to vote in the
February 15 election, employee Beatrice Washington's
ballot should be counted.
5. Theodore Washington
As largely covered in the foregoing discussion of Be-
atrice Washington's eligibility to vote, it appears that
Theodore Washington was hired by Respondent at the
same time as his wife, in April 1975, to work as a regular
part-time bus cleaner, and was also given the added func-
tion of working as a part-time office cleaner. He usually
worked with his wife though not necessarily the same
amount of hours at all times, and made it a point in any
event to provide her transportation to and from work.
Mr. Washington testified that he was on social security
(starting at least in 1977) and since he was limited in the
amount of supplemental earnings he might have, without
reducing his social security income, he had asked Re-
spondent's bookkeeper to inform him when he had
reached his maximum supplement.
As a result, said T. Washington, in 1977 he performed
his last day of work in December 1977, and stopped
working for Respondent altogether in January 1978,
though apparently the office cleaning work was still
available to him, and he continued to bring his wife in
for such work and take her home each day that she
worked in January and February 1978.
Since Theodore Washington voluntarily quit his job
with Respondent more than 6 weeks before the election
he was not eligible to vote and his ballot should not be
counted.
CONCLUSIONS OF LAW
1. By coercively interrogating its employees as to their
signing of union authorization cards, their reasons for
signing such cards, and who among them was behind the
union activities and responsible for distributing the union
cards; and by threatening to sell or close the business
rather than accept the Union, Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. By discharging employee Joseph Priola on August
20, 1977, and by discharging employee Joseph Heuerman
on October 19, 1977, effective October 17, 1977, because
of their union leadership and activities and in order to
discourage union activities and affiliation by employees,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. In the election of February 15, 1978, employees
Joseph Priola and Joseph Heuerman, as regular full-time
drivers who were wrongfully discharged, were eligible
to vote, and their challenged ballots should be opened
and counted.
5. Employee James Patterson, as a regular full-time
bus cleaner who was on sick leave at the time of the
election of February 15, 1978, was eligible to vote and
his challenged ballot should be opened and counted.
6. At the time of the election of February 15, 1978,
employee Sylvia Brooks was a regular part-time bus
cleaner whose status as such was not compromised be-
cause she also held a part-time job as a household
worker in the home of Respondent President Keeshin.
She was eligible to vote and her challenged ballot should
be opened and counted.
7. At the time of the election of February 15, 1978,
employee Beatrice Washington was a regular part-time
bus cleaner and office cleaner, and whether deemed to
be such or only an office cleaner, was included in the
bargaining unit as a maintenance employee, was eligible
to vote, and her challenged ballot should be opened and
counted.
8. Prior to the time of the election of February 15,
1978, in December 1977, Theodore Washington, a
former regular part-time bus cleaner and office cleaner
had voluntarily quit his job with Respondent, and was
not eligible to vote in the election. His challenged ballot
should not be opened and should not be counted.
THE REMEDY
It will be recommended that Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employees Joseph Priola and
Joseph Heuerman and give each backpay from the effec-
tive date of his discharge August 20 and October 17,
1977, respectively, said backpay to be computed on a
quarterly basis as set forth in F. W Woolworth Co., 90
NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up
Bottling Co., 344 U.S. 344 (1953), with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).i4
(3) Post the notice provided for herein; and because
Respondent violated fundamental employee rights guar-
anteed by Section 7 of the Act, and because there ap-
pears from the manner of the commission of this conduct
an attitude of opposition to the purposes of the Act and
a proclivity to commit other unfair labor practices, it
will be further recommended that Respondent:
(4) Cease and desist from in any manner infringing
upon the rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941); P. R. Mallory and Co. v. N.L.R.B., 400 F.2d
956, 959-960 (7th Cir. 1968), cert. denied 394 U.S. 918;
N.L.R.B. v. Bama Company, 353 F.2d 323-324 (5th Cir.
1965).
Regarding the consolidated representation case, it will
be recommended that the representation case be returned
to the Regional Director with the direction to open and
count the five of the six challenged ballots of eligible em-
ployees Priola, Heuerman, Patterson, Brooks, and Be-
atrice Washington, and if the five additional ballots give
the Union a majority of the total vote, to certify the
Union as exclusive bargaining representative of the bar-
gaining unit; but with the further direction that if the ad-
ditional ballots give the Union less than a majority of the
'4 See. generally, Iit Plumbltllng & Ileaeing (Co. 138 NLRB 716 (1962)
796
KEESHIN CHAR'I'ER SERVICE, INC.
total vote he should set aside the election, because Re-
spondent's unfair labor practices, committed after the
filing of the representation petition and before the elec-
tion, interfered with the holding of a free and fair elec-
tion, and he should provide for the holding of another
election at a time and under circumstances likely to
assure a free and fair election.
[Recommended Order omitted from publication.]
797