Laidlaw Transit

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 79 (N.L.R.B. 1994)

79
315 NLRB No. 13
LAIDLAW TRANSIT, INC.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The judge neglected to include a conclusion of law for the 8(a)(3)
violation that he found. We correct this inadvertent error.
Laidlaw Transit, Inc. and Cheryl Wynn. Cases 27–
CA–12671 and 27–CA–12743
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 10, 1994, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
The judge found that the Respondent, in mid-Feb-
ruary 1993, threatened to take disciplinary action
against employee Cheryl Wynn pursuant to an invalid
no-solicitation/no-distribution rule if she distributed
union materials in the drivers’ room again. The Gen-
eral Counsel excepts to the judge’s failure to find that
this conduct violated Section 8(a)(1), as alleged in the
complaint. We find merit in this exception and find
that the Respondent’s conduct in threatening Wynn
violated Section 8(a)(1). We shall modify the Order
accordingly.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 2.
‘‘2. By promulgating and maintaining in November
1992 and on January 1, 1994, overly broad no-
solicitation/no-distribution rules in order to discourage
its employees’ union activities, and by threatening to
discipline an employee pursuant to the November 1992
rule, the Respondent has violated Section 8(a)(1) of the
Act.’’
2. Insert the following as Conclusion of Law 3 and
renumber the subsequent paragraphs.
‘‘3. By disciplining an employee for engaging in
union activity pursuant to invalid no-solicitation/no-
distribution rules, the Respondent has violated Section
8(a)(3) and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Laidlaw Transit, Inc., Commerce City, Colorado, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
‘‘(b) Threatening to discipline employees pursuant
to an invalid no-solicitation/no-distribution rule for en-
gaging in protected concerted activity.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to discipline employees pur-
suant to an invalid no-solicitation/no-distribution rule
for engaging in protected concerted activity.
WE WILL NOT discipline our employees pursuant to
invalid no-solicitation/no-distribution rules.
WE WILL NOT promulgate and maintain rules that
prohibit employees from soliciting for purposes pro-
tected by Section 7 of the Act during nonworking time
or from distributing literature for purposes protected by
section 7 of the Act during nonworking time in non-
working areas of our Commerce City, Colorado facil-
ity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind any discipline imposed on Cheryl
Wynn pursuant to our invalid no-solicitation/no-dis-
tribution rules and make her whole for any loss of pay
she may have suffered as a result of the discipline.
WE WILL remove from our files any references to
the discipline of Cheryl Wynn imposed pursuant to our
no-solicitation/no-distribution rule and notify her in
writing that this has been done and that the discipline
will not be used against her in any way.
WE WILL rescind or modify the rules appearing in
our employee handbook dated January 1, 1994, so that
you are not prohibited from soliciting for purposes pro-
tected by Section 7 of the Act during nonworking time
and so that you are not prohibited from distributing lit-
erature for purposes protected by Section 7 during
nonworking time in nonworking areas of our Com-
merce City, Colorado facility and WE WILL distribute
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1993 unless otherwise indicated.
2 The consolidated complaint was amended by General Counsel on
the day of hearing.
to each of you a copy of the employee handbook with
the rules rescinded or modified.
LAIDLAW TRANSIT, INC.
A. E. Ruibal, Esq., for the General Counsel.
Larry Besnoff and Steven P. Steinberg, Esqs., of Philadel-
phia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Denver, Colorado, on January
25, 1994,1 pursuant to an amended consolidated complaint2
issued by the Regional Director for the National Labor Rela-
tions Board for Region 27 on September 2, and which is
based on charges filed by Cheryl Wynn (Wynn or the Charg-
ing Party) on June 15 (Case 27–CA–12671), on July 21 (first
amended), and on July 3 (Case 27–CA–12743). The com-
plaint alleges that Laidlaw Transit, Inc. (Respondent) has en-
gaged in certain violations of Section 8(a)(1), (3), and (4) of
the National Labor Relations Act (the Act).
Issues
1. Whether Respondent, acting through Frank Engel, a su-
pervisor, violated Section 8(a)(1) of the Act in each instance
by promulgating and maintaining two separate invalid no-so-
licitation rules; one effective in November 1992, the other ef-
fective in January 1994 and as to the earlier rule, whether
Engel also violated the Act by threatening Wynn with dis-
ciplinary action if she continued to violate the invalid rule.
2. Whether Respondent violated the Act by (a) suspending
Wynn and by issuing a letter of warning to her and (b) as-
sessing driving points against Wynn, by requiring Wynn to
undergo additional driver training and by again suspending
Wynn, all because Wynn had engaged in protected concerted
activities.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a corporation with an office
and place of business located in Commerce City, Colorado.
Respondent further admits that annually, in the course and
conduct of its business operations, its gross volume exceeded
$250,000 and that annually it purchases and receives goods,
materials, and services valued in excess of $50,000 from
points and places outside the State of Colorado. Respondent
further admits that annually in the course and conduct of its
business operations, that it purchases and receives goods,
materials, and services valued in excess of $50,000 from
other enterprises within the State of Colorado which other
enterprises received the goods, materials, and services di-
rectly in interstate commerce. Accordingly, it admits, and I
find, that it is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Amalgamated
Transit Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Background
Pursuant to an arrangement with the Denver Regional
Transportation District (RTD), Respondent furnishes drivers
and equipment for bus routes in the city of Denver and sur-
rounding suburbs. One of the drivers employed by Respond-
ent is alleged discriminatee, Cheryl Wynn, witness for Gen-
eral Counsel. Currently employed as a driver/trainer, Wynn
began her employment in November 1989. Sometime in
1990 or 1991, Wynn was the initiator and primary in-house
organizer of a union campaign seeking to organize Respond-
ent’s drivers and related classifications. Wynn’s activities
such as soliciting employees to sign union authorization
cards and distributing union literature were conducted openly
and were known to Respondent’s management. Despite
Wynn’s efforts, the Union lost the Board-conducted election.
Shortly after the union defeat, Wynn was promoted from
driver to driver/trainer with an increase in pay of $1 per
hour. Then in early January, Wynn became aware of a sec-
ond union campaign which this time had been initiated by
someone else. Due to Wynn’s earlier union activities, many
employees mistakenly assumed that she was again the pri-
mary organizer. Instead, she was only a participant in the
campaign engaging in certain activities described below.
Another witness called by the General Counsel was Frank
Engel, currently Respondent’s division manager. As division
manager, Engel supervises about 100 drivers, 10 dispatchers,
Operations Manager Steven Ramos, and Manager of Em-
ployee Development and Safety Donald Showalter (G.C.
Exh. 2). Both Ramos and Showalter were witnesses in this
case and I will report their testimony below. For now, I note
that before assuming his current duties as of April 26, Engel
was operations manager between April 1991 and the time of
his promotion.
In early January, while employed as Respondent’s oper-
ations manager, Engel received a report from a dispatcher
named Ray Klomp that Wynn was distributing union mate-
rials (authorization cards and literature) to drivers. Although
Klomp did not testify, Wynn’s activities were allegedly oc-
curring in the drivers’ room of Respondent’s facility in the
early morning hours of a workday. The drivers’ room is
about 40 feet by 48 feet and is used for both work and rec-
reational activities by employees. It contains a pool table,
video machine, soda and sandwich machines, and tables and
chairs. In the early morning hours, while on the clock, the
drivers receive their assignments from the dispatchers situ-
81LAIDLAW TRANSIT, INC.
3 Before Wynn left Engel’s office after her first warning, she told
Engel, ‘‘I just want you to know Frank, I really am not the one who
initiated this union organization this time. But I am helping with it.’’
(Tr. 65.)
ated in a 10-by-12 feet room adjacent to the drivers’ room.
The drivers then receive supplies, review the assigned routes,
punch transfers and perform other predrive preparatory ac-
tivities in the drivers’ room.
After receiving Klomp’s report, Engel summoned Wynn to
his office and confronted her with the report he had received
placing her in violation of a no-solicitation rule allegedly
posted on a bulletin board in the drivers’ room. According
to Engel, Wynn admitted distributing union materials to driv-
ers on company time and company property. Engel asked her
to cease her activities and gave her an oral warning, telling
her formal discipline would result for a second offense.
Wynn tells a slightly different version. Placing the con-
versation in February, Wynn testified that she admitted to
Engel that she was distributing union materials in the driv-
ers’ room, but that she denied that she or the recipients of
the material were ‘‘on the clock.’’ She further testified that
she told Engel she thought she could be on company prop-
erty while distributing union materials, but Engel said this
was not permitted.
On February 23, again in the early morning hours of a
workday, Engel received a second report about Wynn engag-
ing in union activities in the drivers’ room. The source of
this report was Steve Ramos, called as Respondent’s witness.
Now Respondent’s operations manager, Ramos testified that
as of February, he was Respondent’s lead road supervisor. In
that capacity, Ramos was told by Klomp that Wynn was
again distributing union materials in the drivers’ room. At
first Klomp had been given this information by an unidenti-
fied driver; then, according to Ramos, Klomp had personally
witnessed Wynn handing out materials to drivers in the driv-
ers’ room. Upon receiving the report from Klomp, Ramos
passed on the information to Engel.
After receiving Ramos’ report of what Klomp and an un-
identified driver had allegedly seen, Engel ordered Ramos to
suspend Wynn immediately pending investigation of the
charge. Because Engel had confronted Wynn a few weeks
before about her union activities and warned her of potential
disciplinary action for a repeat offense, Engel felt it was un-
necessary to confront Wynn this time with the charge against
her.3 About 4:50 a.m., Ramos told Wynn she was suspended
and to leave the premises. As Ramos conveyed this message,
to Wynn, Wynn was holding certain materials which Ramos
could not identify. He did observe Wynn hand the materials
to another employee before Wynn left the area.
According to Wynn, on the day in question, she was on
the extra board meaning she came in about 3:45 a.m. and
stood by to see whether an assignment would become avail-
able. As a standby driver, Wynn was required to remain in
the drivers’ room and be available for assignment.
According to Wynn, she again was passing out materials
in the drivers’ room while she and the recipients were not
on the clock. Later after 4:30 a.m. on the day in question,
when she was on the clock, but waiting for an assignment,
she did crocheting and bible reading for a time. When she
tired of these activities, she began talking to other drivers
about the Union. About 10–15 minutes after she began talk-
ing up the Union, Klomp approached her to say that one or
more drivers had complained to him that Wynn had been dis-
tributing union cards in the drivers’ room. Wynn denied the
accusations. A while later, Ramos told her she was sus-
pended for a day because she had been seen passing out
union cards. Wynn then gathered up her possessions and left.
On or about February 24, Wynn recalls meeting with
Engel and Ramos in Engel’s office and receiving a letter
from him which reads as follows (G.C. Exh. 4):
February 23, 1993
Cheryl Wynn
Laidlaw Transit
Ms. Wynn:
This letter is to notify you of my finding regarding
your alleged violation of this division’s No Solicitation
Policy. After investigating this issue, I have found that
you were in violation of the company’s policy by hand-
ing out literature unauthorized by Laidlaw Transit while
on company property and while on company time.
According to my records, we discussed this issue
previously; at that time, I had informed you that your
actions were in violation of the division’s no solicita-
tion policy and issued you a verbal warning. As a result
of your further actions, I have decided that you will be
issued this warning letter and a one day suspension, ret-
roactive to Monday, February 23, 1993. If you are
found to be in violation of this division’s No Solicita-
tion Policy again, you will be liable for further discipli-
nary action up to and including dismissal.
If you have any questions, please see me.
Sincerely,
/s/ Frank Engel
Frank Engel
Operations Manager
cc:
Bob Concienne
To file
I have read and understand the contents of this letter
and its associated warning(s) and sanction(s).
/s/ Cheryl L. Wynn
Cheryl Wynn
By signing this I am not admitting to guilt & I reserve
the right to attach a statement to this letter. [hand-
written]
On election day in June, Wynn was the Union’s election
observer during the vote and was also present when the bal-
lots were counted. Again the Union lost the election.
On or about June 24, about 12:45 or 1 p.m., Wynn had
finished her initial assignment involving an 8-hour run.
About 2:30 p.m., Wynn received a second assignment to
drive an express bus in and around the streets of Denver.
About 4:25 p.m., she had returned to the Market Street Sta-
tion, an underground bus terminal near downtown Denver.
Each bus in the terminal is assigned a gate or space in which
to pull into and leave from (R. Exh. 1). Wynn drove her bus
into gate 4 where Wynn picked up 20 to 25 passengers. In
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Two other passengers told Wynn that they and Green had been
laughing on the bus when the tire went over the curb. They also
filled out written reports to that effect.
5 A ‘‘preventable accident’’ is any occurrence involving a com-
pany-owned or operated vehicle which results in property damage
and/or personal injury, in which the driver in question failed to do
everything he or she, as a professional operator, reasonably could
have done to prevent the occurrence (Tr. 108–109).
accord with a written schedule on a ‘‘train card,’’ Wynn
pulled out of gate 4 about 4:26 p.m. and began pulling
around the curved driveway to reach the exit at a speed of
about 5 mph. Although she saw no bus in her rearview mir-
ror, Wynn testified she heard a bus coming around the
curved driveway at a high rate of speed. According to Wynn,
as she heard the bus coming, she simultaneously noted a red
light flash on her dash indicating hot oil. This meant, Wynn
testified, that the bus was about to shut down as it was pro-
grammed to do when the hot oil light came on. If this hap-
pened, Wynn’s bus would be vulnerable to collision with the
bus allegedly approaching from the rear, a bus which Wynn
never saw.
Allegedly in her desire to avoid an accident, Wynn drove
her bus into gate 5, but she misjudged the location and
height of the curb so that the right rear tire of the bus went
over it, causing a bump and jar to the bus and passengers.
Although no damage occurred to the bus, a passenger named
Cheryl Green, who did not testify, claimed later in Wynn’s
run that she had reinjured a whiplash injury to her neck
which she had originally injured in a prior bus accident.4 In
accord with standard procedures, Wynn gave Green an acci-
dent form, and then supposedly attempted to report the mat-
ter to dispatch, but Wynn claimed her radio was not working.
Because of an alleged injury occurring during an accident,
Respondent’s accident policy (Jt. Exh. 2) required an inves-
tigation to determine whether Wynn’s accident had been pre-
ventable or nonpreventable.
The investigating official was Don Showalter, Respond-
ent’s manager of employee development and safety, whose
duties include the investigation of driver accidents and as-
signment of fault, if any. Called as a witness by General
Counsel, Showalter testified that since May 1992 when he
took over his current assignment, on the average, he made
about 20 such determinations per month. In Wynn’s case,
Showalter prepared his report and determined that the acci-
dent had been preventable. Among the documents reviewed
by Showalter was Wynn’s written narrative of the accident
(Jt. Exh. 1-E), photos of the area where the bus jumped the
curb (Jt. Exhs. 1-H, I), courtesy cards from the passengers
on the bus (Jt. Exhs. 1-G), Green’s claim for damages
against RTD (Jt. Exhs. 1-K, L, M), and Showalter’s analysis
and conclusions, dated June 25 (Jt. Exh. 1-J).
On or about June 25, Showalter met with Wynn and told
her that in his opinion, the accident had been preventable.5
Accordingly, Wynn was assessed three points on her driving
record, suspended for 2 days, and required to undergo 4
hours of retraining. Wynn indicated a desire to appeal
Showalter’s findings to Engel, but on or about July 31, the
latter affirmed Showalter’s decision, after giving Wynn an
opportunity to present any additional material.
B. Analysis and Conclusions
1. Respondent’s former no-solicitation/no-distribution
rule
Both sides agree that the no-solicitation rule pursuant to
which Wynn was first warned and then disciplined was ini-
tially posted by Respondent in November 1992. This written
policy was never produced at hearing, having mysteriously
disappeared from a locked bulletin board with a glass cover.
According to Engel, the policy provided that ‘‘no solicitation
or distribution would be allowed on company property, on
company time.’’ (Tr. 38.) At page 12 of its brief, Respondent
correctly cites the Board’s leading case Our Way, 268 NLRB
394 (1983), for the proposition that policies prohibiting dis-
tribution or solicitation during ‘‘working time’’ are presump-
tively valid. However, Respondent continues on the same
page to contend erroneously that ‘‘[f]or all practical pur-
poses, the terms ‘company time’ and ‘working time’ are
functionally equivalent.’’ Bans on solicitation during ‘‘com-
pany time’’ remain presumptively invalid. I Hardin, The De-
veloping Labor Law 88 (3d ed. 1992). Citing NLRB v. Chi-
cago Metallic Corp., 794 F.2d 527 (9th Cir. 1986). The ex-
pression ‘‘company time’’ does not clearly convey to em-
ployees that they may solicit on breaks, lunch, and before
and after work.
I also find that Engel’s phrase ‘‘company property’’ is pre-
sumptively invalid because it is overbroad and could be in-
terrupted to restrict solicitation and distribution in
breakrooms or cafeterias, places where employees do not
perform work activities but technically are ‘‘company prop-
erty.’’
At page 14 of its brief, Respondent argues in the alter-
native that if the General Counsel establishes that Respond-
ent’s policy was presumptively invalid, then Respondent
overcame the presumption of invalidity by communicating to
its employees that the policy permitted distribution and solic-
itation during ‘‘nonwork time and in nonwork areas.’’ Before
turning to the record to see whether Respondent has accom-
plished what it claims to, I recite the proper legal standard
from Our Way, Inc., supra, 268 NLRB at 395 fn. 4:
Our decision does not create a per se approach.
Rather we are returning to the presumption of Essex
International which concerns the facial validity or inva-
lidity of no-solicitation rules and which can be rebutted
by appropriate evidence. . . . an employer could show
by extrinsic evidence that, in the context of a particular
case, the ‘‘working hours’’ rule was communicated or
applied in such a way as to convey an intent clearly to
permit solicitation during breaktime or other periods
when employees are not actively at work.
In my opinion, Respondent has misapprehended the
Board’s Rule for overcoming the presumption of invalidity.
Respondent selectively quotes Wynn to show she understood
the rule applied only to employees who were not ‘‘on the
clock.’’ However, if Wynn were credible here, I note she
also testified she told Engel originally she was not in viola-
tion of Respondent’s policy because she was soliciting and
distributing only to employees who were not on the clock.
And this was the case, according to Wynn, on February 23
as well. But regardless of what Wynn knew or how she con-
83LAIDLAW TRANSIT, INC.
6 An example of the confusion caused by Respondent’s rule is
Wynn’s belief that the working area, where she could not solicit,
was the bus (Tr. 118).
7 This rule ends with ‘‘Please see section 11, number 31 for more
information.’’ Since sec. 11, number 31 is not contained in this
record, I disregard the reference for purposes of deciding whether
the rule violates the Act.
ducted herself, the Board’s Rule quoted above from footnote
4 of Our Way, refers to what the employer must do to over-
come the presumption of invalidity. I find that Respondent
did not communicate or apply its rule in such a way as to
overcome the presumption of invalidity as to all employees.
See Ichikoh Mfg., 312 NLRB 1022 (1993).
Clarifications of ambiguous rules or narrowing interpreta-
tions of overly broad rules must be effectively communicated
to an employer’s work force before the Board will conclude
that the impact of facially illegal rules has been eliminated.
I Hardin, The Developing Labor Law, supra at 94, citing
Chicago Magnesium Castings Co., 240 NLRB 400 (1979),
affd. 612 F.2d 1028 (7th Cir. 1980). No evidence of any
such clarification or narrowing interpretations has been pre-
sented in this case. In fact, I credit Wynn’s testimony that
no one in management ever explained to her what the mean-
ing of the rule was as described in Engel’s letter (G.C. Exh.
4) (Tr. 73).6
In light of the discussion above, I find that Respondent
failed to rebut the presumed invalidity of the rule in question
and I agree with General Counsel (Br. 10), that by Respond-
ent’s promulgation and maintenance of the rule, Respondent
has violated Section 8(a)(1) of the Act. NCR Corp., 313
NLRB 574 (1993). I further agree with the General Counsel
and find that by enforcing its unlawful rule against Wynn for
engaging in acknowledged union activity, Respondent has
violated Section 8(a)(1) and (3) of the Act. Our Way, supra
at 395. See also Automotive Plastic Technologies, 313 NLRB
462 (1993).
Because Wynn was disciplined pursuant to Respondent’s
invalid rule, the discipline was invalid and I will recommend
below certain relief to which she is entitled. See Boland Ma-
rine & Mfg. Co., 225 NLRB 824 (1976), affd. 562 F.2d 1021
LRRM 3239 (5th Cir. 1977).
2. Respondent’s new no-solicitation/no-distribution rule
On January 1, 1994, Respondent promulgated and main-
tained a new no-solicitation/no-distribution rule which reads
as follows (G.C. Exh. 3):
In order to prevent disruptions in production and in-
terference with work performance, we have instituted
the following ‘‘No Solicitation/No Distribution’’ rule.
Solicitation and the distribution of literature for any
purpose by employees during the working time of ei-
ther the person soliciting/distributing or the person
being solicited/distributed to or in any working area at
any time, is strictly prohibited. Employees who violate
this rule will be subject to disciplinary action up to and
including discharge.
Solicitation and/or distribution of literature for any
purpose by non-employees in any area of Laidlaw
Transit, Inc. premises is strictly prohibited.7
In his brief, page 10, General Counsel first states that the
rule ‘‘‘appears facially valid’ as it speaks to the working
time of both parties to the solicitation or distribution.’’ Then
General Counsel opines that the ‘‘rules . . . is [also] defec-
tive,’’ because it prohibits both distribution and solicitation
in ‘‘any working area at any time.’’
Before deciding the issue presented, I must discuss Re-
spondent’s threshold contention (Br. 16) that because the pol-
icy has not been implemented against any employees so far,
there is no basis to find the policy has been applied in an
invalid manner. The courts have held that failure to enforce
an invalid rule is no defense because the mere existence of
an overbroad rule may chill the exercise of the employees’
Section 7 rights. Brunswick Corp., 282 NLRB 794, 795
(1987); NLRB v. Southern Maryland Hospital Center, 916
F.2d 932, 940 fn. 7 (4th Cir. 1990).
I now proceed to find Respondent’s rule is invalid for the
reasons urged by General Counsel. In support of this conclu-
sion, I again turn to I Hardin, The Developing Labor Law
supra, at 89:
The differences between oral solicitation and the dis-
tribution of literature have caused the Board to apply
somewhat different rules to employer efforts to restrict
the two activities. Since Republic Aviation,109 which
dealt specifically with oral solicitations, the Board has
maintained the position that oral solicitations by em-
ployees may be prohibited during working time.110 But
the Board has generally allowed employers to forbid
distribution of literature by employees both during
working time and in working areas.111 The difference
reflects the Board’s view that solicitation can only
occur when both the soliciting and the solicited em-
ployee have an opportunity for the exchange of views
and must presumptively be allowed at any location
where both employees simultaneously find that oppor-
tunity, that is, when neither employee is on working
time. Distribution of literature from employee to em-
ployee, however, can be done in an instant and the
message preserved for later consideration. But it in-
volves a hazard to employer interests absent from oral
solicitation, the threat of litter and other risks to pro-
ductive order, and may on that account be prohibited in
work areas.112
109 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620
(1945).
110 Fruehauf Corp., Paceco Div. v. NLRB, 601 F.2d 180, 102
LRRM 2146 (C.A. 5, 1979); Keystone Resources v. NLRB, 597 F.2d
1041, 101 LRRM 2784 (C.A., 5, 1979), on remand, 245 NLRB 512,
102 LRRM 1320 (1979); Stoddard-Quirk Mfg. Co., [138 NLRB 615
(1962)] supra note 94.
111 Stoddard-Quirk Mfg. Co., supra note 94. In the absence of a no-
solicitation rule, an employer may not seize union literature placed on
workers’ desks prior to the start of working hours. F. W. Woolworth
Co. v. NLRB, 530 F.2d 1245, 92 LRRM 2240 (CA 2), cert. denied, 429
U.S. 1023, 93 LRRM 3019 (1976); see also United Aircraft Corp., 139
NLRB 39, 51 LRRM 1259 (1962), enforced, 324 F.2d 128, 54 LRRM
2492 (CA 1, 1963), cert. denied, 376 US 951, 55 LRRM 2769 (1964).
112 Stoddard-Quirk Mfg. Co., supra note 94 [133 NLRB 615, 619–
621 (1962)]. See Bok, The Regulation of Campaign Tactics in Rep-
resentation Elections Under the National Labor Relations Act, 78
HARV. L. REV. 38, 93 (1964).
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In light of my conclusions above, it is unnecessary to decide
whether Respondent applied the rules to Wynn disparately.
9 Although Wynn testified she prepared both forms, neither was
offered into evidence, and I don’t believe Wynn on this point. In so
finding, I place no reliance on the following colloquy (Tr. 132):
JUDGE STEVENSON: Do we have such a form in evidence here
now? [referring to the forms Wynn said she prepared] I haven’t
been looking at all the documents that have gone in. Is there
such a form as that?
MR. BESNOFF: No such form exists.
10 It is not possible to draw any conclusions from the other acci-
dent files for other employees submitted by General Counsel (G.C.
Exhs. 5–9). Each accident is fact specific and I cannot find any com-
mon thread in these files helpful to General Counsel.
11 Although Wynn had only a single preventable accident, under
Respondent’s current accident policy (Jt. Exh. 2) which General
Counsel has no specific argument with, if she properly received
three points on her driving record, then General Counsel does not
contend that Wynn was unfairly treated in any other way (Tr. 174).
Accordingly, because Respondent did not clearly convey
to employees that they could solicit in work areas so long
as the solicitation was on nonworking time, Stoddard-Quirk
Mfg., supra, 138 NLRB at 621, the Respondent’s new rule
is invalid and its promulgation and maintenance violate Sec-
tion 8(a)(1) of the Act.
Respondent’s rule is also invalid because it is ambiguous
and does not clearly convey to employees what is a working
area. As noted in the facts, the drivers’ room is used both
for work and recreational activities by employees. Accord-
ingly, it is impossible for employees to know whether they
may properly solicit/distribute in the drivers’ room. Where
ambiguities appear in employee work rules promulgated by
an employer, the ambiguity must be resolved against the pro-
mulgator of the rule rather than the employees who are re-
quired to obey it. Norris/O’Bannon, 307 NLRB 1236, 1245
(1992).8
3. Wynn’s alleged preventable accident and the
resulting discipline
No Respondent policy is challenged by General Counsel
in this segment of the case. Instead, General Counsel con-
tends that the alleged preventable accident experienced by
Wynn was a pretext and that she was really disciplined in
whole or in part, for her union activities, including presum-
ably her solicitation and distribution on behalf of the Union,
her activities as the Union’s election observer, and her filing
of charges with the Board on June 15.
General Counsel has the initial burden of establishing a
prima facie case sufficient to support an inference that union
or other activity which is protected by the Act was a moti-
vating factor in Respondent’s action alleged to constitute dis-
crimination in violation of Section 8(a)(3). Once this is es-
tablished, the burden shifts to Respondent to demonstrate that
the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. If Respondent
goes forward with such evidence, General Counsel ‘‘is fur-
ther required to rebut the employer’s asserted defense by
demonstrating that the [alleged discrimination] would not
have taken place in the absence of the employee[’s] protected
activities.’’ Wright Line, 251 NLRB 1983 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The test applies regardless of whether the
case involves pretextual reasons or dual motivation. Frank
Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
‘‘[A] finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not
in fact relied upon thereby leaving intact the inference of
wrongful motive established by the General Counsel.’’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
I begin my analysis by finding that General Counsel has
established a prima facie case that Wynn’s protected activi-
ties referred to above were a motivating factor in her dis-
cipline. Motive is a question of fact and the Board may infer
discriminatory motivation from either direct or circumstantial
evidence. NLRB v. Nueva Engineering, 761 F.2d 961, 967
(4th Cir. 1984). Discipline of a union activist tends to give
rise to an inference of violative discrimination ‘‘timing alone
may suggest anti-union animus as a motivating factor in an
employer’s action.’’ Norris/O’Bannon, supra, 307 NLRB at
1242.
To recapitulate relevant facts, Wynn was disciplined pur-
suant to Respondent’s accident policy (Jt. Exh. 2) for an ac-
cident causing (claimed) injury to a passenger which
Showalter found was preventable. Wynn claimed that a con-
tributing cause of the accident was her hot oil light flashing
on the dash. If true, this meant Wynn should have shut the
bus off immediately and called for assistance, lest serious
damage occur. Instead, after the accident, she continued to
drive the bus for several more miles, claiming that the light
was no longer flashing. Later, on her run, after learning that
Green intended to claim reinjury, Wynn testified that she was
unable to report this immediately to dispatch, because the
radio was not working. No form was submitted for either the
hot oil light or the radio indicating they were in disrepair.9
Rather when both were checked out after the accident, they
were found to be working properly. This discrepancy costs
doubt on Wynn’s version of the accident.
I note the accident happened in late afternoon after Wynn
had already driven a full 8 hours beginning at 4 or 5 a.m.
and was completing a second 4- to 8-hour assignment. She
must have been very tired. No evidence was presented to
corroborate Wynn’s account of another bus which she never
saw, approaching at a high rate of speed, allegedly forcing
Wynn to take evasive action to prevent a collusion.
It is unnecessary to decide whether Wynn as a
driver/trainer should be held to a higher standard of care than
other drivers.10 I find that Showalter performed his duties in
substantial accord with Respondent’s procedure without devi-
ation from the routine which could indicate that Wynn was
being treated differently due to her protected activities. Com-
pare NLRB v. Comgeneral Corp., 684 F.2d 367, 370 (6th Cir.
1982). In fact, I note that Showalter himself was found to
have caused two preventable accidents. More specifically,
Showalter was hired as a driver on October 5, 1990, and on
October 21, he caused about $400 damage to a bus by hitting
a pole. In March 1991, a few days after he was told of his
promotion to classroom instructor, Showalter had a second
preventable accident causing $30 worth of damage to the bus
(R. Exh. 2). Although the two accidents occurred at a time
before Respondent’s current point system, Showalter never-
theless was suspended for 2 days and was assigned to re-
training.11
85LAIDLAW TRANSIT, INC.
12 Showalter gave a slightly different version of the committee’s
function, emphatically denying that a function of the committee had
ever been to determine preventable or nonpreventable accidents.
Rather, Showalter testified, that the committee only reviewed acci-
dents, and how and why they occurred to work for a safer environ-
ment. He also noted the committee met only once a month, so it
could not make timely determinations even if that were the commit-
tee’s function (Tr. 136–37). I credit Barron on this point, but find
either account will not affect the final decision.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
In support of his theory in this segment of the case, Gen-
eral Counsel presented testimony from Becky Barron, a bus-
driver for Respondent for over 2 years and member of an oc-
cupational safety and health committee formed by Respond-
ent shortly before Wynn’s accident. Originally, one of the
functions of the committee was to review the facts of driv-
ers’ accidents presented to the committee by Showalter on a
hypothetical basis without names of persons involved. The
committee would then advise Showalter whether the accident
was preventable or nonpreventable with the ultimate objec-
tive of improving driver safety.12 At some point, according
to Barron, apparently after Showalter related the facts of
Wynn’s accident to the committee and after the committee
had decided that Wynn’s accident had been nonpreventable,
Engel changed the committee’s assignment. Barron testified
that Engel objected to committee members issuing advisory
opinions regarding accidents because such a function might
cause animosity between drivers.
Assuming for the sake of argument entirely that the OSHA
committee consistent with its primary function, had infor-
mally and unofficially decided that Wynn’s accident was
nonpreventable, I find the evidence entitled to little weight.
I cannot be certain exactly what Showalter told the commit-
tee and there is no showing that of the 20 or more deter-
minations made by Showalter each month, how many of
these accidents were discussed by the committee and whether
the informal findings of the committee, if any, were always
consistent with Showalter’s final determination.
In recommending that this allegation be dismissed, I am
more impressed by the fact that Wynn was promoted to a job
as driver/trainer with a $1-per-hour raise in pay after she
completed her union activities in connection with the first
election. I also am impressed with the regularity of
Showalter’s investigation. Accordingly, based on all the evi-
dence presented, I find that Respondent has met its burden
and proven that Wynn would have been found to have had
a preventable accident with the discipline in issue in this
case, even absent her protected concerted activities. Accord-
ingly, this allegation should be dismissed.
CONCLUSIONS OF LAW
1. Respondent Laidlaw Transit, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. By promulgating and maintaining in November 1992,
and on January 1, 1994, overly broad no-solicitation/no-dis-
tribution rules in order to discourage its employees union ac-
tivities, Respondent has violated Section 8(a)(1) of the Act.
3. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Other than specifically found above, Respondent has
committed no other unfair labor practices.
REMEDY
Having found that Respondent Laidlaw Transit, Inc. en-
gaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and, further,
that it be ordered to take certain affirmative action to effec-
tuate the policies of the Act. With respect to the latter, I shall
recommend that it be ordered to rescind any discipline im-
posed on Cheryl Wynn pursuant to Respondent’s invalid no-
solicitation/no-distribution rules, effective November 1992
and January 1, 1994. Any backpay is to be computed on a
quarterly basis, making deductions for interim earings, F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest to
be paid on the amounts owing as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). In addition, I shall
recommend that Respondent be ordered to rescind or modify
the rules appearing in its employee handbook dated January
1, 1994, so that employees are not prohibited from solicita-
tion for purposes protected by Section 7 of the Act during
nonworking time and are not prohibited from distribution of
literature for purposes protected by Section 7 of the Act dur-
ing nonworking time in nonworking areas of its premises
and, further, to distribute new copies of that handbook, with
the rules as rescinded or modified, to employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Laidlaw Transit, Inc., Commerce City,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining rules that prohibit employees from solicit-
ing for purposes protected by Section 7 of the Act during
nonworking time or from distributing literature for purposes
protected by Section 7 of the Act during nonworking time
in nonworking areas of its Commerce City, Colorado facility.
(b) Disciplining employees pursuant to invalid no-
solicitation/no-distribution rules referred to in paragraph 1(a)
above.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind any discipline imposed on Cheryl Wynn pur-
suant to invalid no-solicitation/no-distribution rules dated No-
vember 1992 and January 1, 1994, and make her whole for
any loss of pay she may have suffered as a result of the dis-
criminatory discipline, in the manner set forth in the remedy
section of this decision.
(b) Remove from its files any references to the unlawful
discipline of Cheryl Wynn and notify her in writing that this
has been done and that the discipline will not be used against
her in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Rescind or modify the rules appearing in its employee
handbook dated January 1, 1994, so that employees are not
prohibited from solicitation for purposes protected by Section
7 of the Act during nonworking time and are not prohibited
from distribution of literature for purposes by Section 7 of
the Act during nonworking time in nonworking areas of its
premises and, further, distribute to all employees a copy of
the employee handbook with the rules so rescinded or modi-
fied.
(e) Post at its Commerce City, Colorado facility copies of
the attached notice marked ‘‘Appendix.’’14 Copies of the no-
tice, on forms provided by the Regional Director for Region
27, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees, are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.