Robert'S Tours & Transportation, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 13 (N.L.R.B. 1987)

ROBERT'S TOURS
Robert's Tours & Transportation, Inc. and David
Speelman and Bella Gouveia. Cases 37-CA-
1889 and 37-CA-1918
26 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 11 January 1984 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and 'to adopt, the recommended Order.
ORDER
The NationalLabor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Robert's
Tours & Transportation, Inc., Honolulu, Hawaii, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order, except that the at-
tached notice is substituted for that of the adminis-
trative law judge.
1 The Respondent has excepted to some of the judge's credibility find-
ings. 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 Or. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
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 ordered us to post and Abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
13
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge, withhold driving as-
signments from, or otherwise discriminate against
our employees because of their activities protected
by the Act.
WE WILL NOT threaten employees with job loss
or other adverse action should they engage in ac-
tivities protected by the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of your rights under the Act.
WE WILL offer to David Speelman immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority and other
rights and privileges and We will make him whole
for any loss of earnings or benefits suffered by
reason of his unlawful discharge, with interest on
lost earnings.
WE WILL restore Bella Gouveia to her job duties
as' they existed before we began unlawfully with-
holding tour-bus assignments from her about Janu-
ary 8, 1982; and We will make her whole for any
loss of earnings (including tips) or benefits suffered
by reason of that unlawful withholding, With inter-
est on lost earnings.
ROBERT'S TOURS & TRANSPORTA-
TION, INC.
Thomas W. Cestare, Esq., for the General Counsel,
Jared H. Jossem, Esq., of Honolulu, Hawaii, for the Re-
spondent.
Isabella Gouveia, for herself.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried in Kahului , Maui, Hawaii, on March 1,
1983 . The charge in Case 37-CA-18139 was filed on
April 12, 1982, and amended on July 20, by David Speel-
man. The charge in Case 37-CA-1418 was filed on July
2, 1982, by Isabella Gouveia. The complaint issued on
July 26, 1982, and alleges that Robert's Tours & Trans-
portation, Inc. (Respondent) violated Section 8(a)(1) of
the National Labor Relations Act (Act) in each of these
respects: i
1. Since November 1981, by promulgating and main-
taining an impermissibly broad no-solicitation rule.
1 See 8(a)(1) makes it unlawful for an employer "to interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed in
Section 7." Sec. 7 gives employees "the right to self-organization, to
form, loin, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and ... also ... the right to refrain from any or all such
activities ... "
283 NLRB No. 2
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. On January 7, 1982, by discharging Speelman and
adversely changing Gouveia's terms and conditions of
employment because of their engagement in activities
protected by the Act.
3. On January 7 and 8, 1982, acting through Gerald
Hayashi, an admitted supervisor and agent, by interrogat-
ing employees concerning their engagement in protected
activities and threatening them with discharge for same.
II. JURISDICTION
Respondent, incorporated in Hawaii , provides tour bus
and other transportation services in that State . Its annual
revenues exceed $500,000, of which over $50,000 derives
from services for firms situated in other States and coun-
tries . It is undisputed that Respondent is an employer en-
gaged in and affecting commerce within Section 2(2),
(6), and ('7) of the Act.
IL BACKGROUND
Respondent operates on five of the Hawaiian Islands-
in order of business volume, Oahu, Kauai, Hawaii, Maui,
and Molokai. Its overall manager is Robert Iwamoto Jr.
(Robert), who is headquartered in Honolulu, Oahu. His
son Scott is the nominal manager of the Maui operation,
having been elevated to that position in late December
1981. Scott was 21 at the time of trial. "Overseeing ev-
erything I did," Scott testified, was Gerald Hayashi,
manager on the Island of Hawaii.
Except for the allegedly unlawful no-solicitation rule,
which has been of systemwide application, this case con-
cerns Maui.
III. THE ALLEGED MISCONDUCT
A. The No-Solicitation Rule
1. Facts
The parties stipulated that Respondent promulgated
this rule on May 15, 1981:
Solicitation : RHT drivers are prohibited from allow-
ing themselves to be solicited while on duty, since
any time thusly involved would be an unauthorized
use of company time . Furthermore, it is prohibited
for RHT drivers who are on duty to solicit other
RHT drivers regardless of whether the latter are
on-duty or off-duty. Failure to comply with the
preceding will be regarded as cause for the compa-
ny to take disciplinary action.
Hayashi testified that the rule appears in a handbook
of rules and regulations which, until the supply was ex-
hausted, was given to each of Respondent's drivers. The
rule was in effect "all during 1981 and 1982," he added,
and "would still be the policy" had Respondent not "run
out of those handbooks."
Concerning the reasons for the rule, Hayashi testified:
The company is afraid of the solicitation of drivers
or the drivers soliciting other drivers or people in
regards to keeping their attention to what they're
supposed to be doing. And we didn't want our driv-
ers selling or promoting puka shells or Kona liquor,
or to be solicited by vendors or concessions that
might offer them kickbacks or some {form of gratu-
ity for stopping at these stops.
Hayashi continued that, "in the past,"-there had been
"specific problems with respect to [Respondent's] drivers
in terms of soliciting or kickbacks or selling and buying
things while drivers were on duty." He elaborated:
In the 1974, 1972 to 1974 area, where puka shells
were a big craze around the islands, the drivers
would sell puka shells to Japanese tourists. Buy
them cheap and sell them for a marked-up price.
That created some difficulty with our company
where the agents that brought these people in didn't
want us soliciting them. So somehow our company
had to cut it out.
Hayashi further elaborated that "the type of solicitation
that our drivers would be subject to" were "concessions
that would solicit [them] and say, `If you- bring your
people here, we'll give you $2 for each person that walks
through our door."' Asked by Respondent 's counsel if he
knew of any instance in which the rule had "ever been
applied to actions taken by people during their own time,
including breaks and mealtime ," Hayashi testified: "No."
2. Conclusion
In Our Way, Inc., 268 NLRB 394 (1983), the Board an-
nounced that rules against solicitation during "working
time," as distinguished from "working hours," are pre-
sumptively valid. So doing, it revived the distinction
made in Essex International, 211 NLRB 749 (1974), over-
ruling the case on which the General Counsel places
principal reliance herein-TR. W. Bearings, 257 NLRB
442 (1981).
It is concluded that a rule, such as Respondent's,
against soliciting or being solicited while "on duty" is
the functional equivalent of the presumptively valid one
in Our Way against soliciting during working time.2 It is
further concluded, therefore, there being no evidence to
defeat the presumption,' that Respondent's rule does not
violate Section 8(a)(1) as alleged.
2 The equivalency of while "on duty" and during "working time" is
suggested by Medical Center of Beaver County, 266 NLRB 429 (1983) An
issue in that case was the legality of a ban against the wearing of insignia
"while on duty." The administrative law judge concluded that the ban
was impermissibly broad because it failed to "contain a clear statement as
to its nonapplication (1) during break periods, meal periods, and other
similar periods, and (2) in nonpatient areas." Id. at 430. A three-member
Board panel affirmed the administrative law judge's ultimate conclusion.
Two of the three took the position, however, that the ban was overly
broad only "because it does not apply solely to patient care areas," and
that they "would find it valid in terms of time since it states that employ-
ees are only restricted `while on duty."' Id. at 429 fn. 1. The two seem-
ingly reached that position not by distinguishing between "on duty" and
"working time," but in disagreement with T.R W. Bearings Ibid.
ROBERT'S TOURS
B. The Alleged Violations of January 7-8, 7982-
1. Evidence
Speelman was a driver for Respondent from Septem-
ber 1976 until discharged January 7, 1982. The discharge
was effected by Hayashi, acting on Robert's orders.
The morning of January 5-2 days before the dis-
charge-Speelman's tour bus was involved in an acci-
dent. It struck a branch overhanging a narrow road into
Maui's Iao Valley. The -branch thrust through the wind-
shield, necessitating that the tour be completed with a re-
placement bus. No one was injured. Speelman testified
that, the road being partially in shadow, he was unable
to see the branch in time to stop before impact, although
"going real slow;3 and that he was prevented from oth-
erwise avoiding it by an oncoming vehicle. By his reck-
oning, "the accident was unavoidable."
Scott accompanied the replacement bus to the scene.
Once there, he questioned Speelman about the accident
and took some pictures. Speelman finished the tour.
That afternoon, on Speelman's return to Respondent's
"base" at the Kahului airport, Scott pressed him for
"more details" about the accident; and the two of them
returned to the accident site, taking with them Bobby
(Wipa) Purdy, described by Scott as Respondent's fleet
safety examiner- and driver trainer -on Maui.4 Scott took
more pictures and assertedly concluded that there was
"no reason why [the branch] should have been hit."
That night, returning to the base from his last assign-
ment for the day, Speelman had yet another encounter
with Scott. Scott declared that the accident called for
"some kind of disciplinary action," elaborating that Re-
spondent was "trying, to clean, up" its Maui operation
and that, this being his first such situation as Maui man-
ager, his handling of it, "was going to set an example."
Scott added that, should he let Speelman off "easy, then
everybody . . . was going to take advantage of [him]."
He continued that he did not "feel that just the accident
alone was sufficient for . . . termination," and, noting
that Speelman had only recently suffered a 1-week sus-
pension because of a baggage oversight,5 asked him what
he thought would be a "fair" penalty. Speehnan pro-
posed a 2-week suspension. Scott responded, "Fine,
you've got it." Scott appended that Speelman need not
"worry about this accident"; that he would "talk to" his
father, Robert, and they would "work it out."s '
During the same conversation, Scott asked that Speel-
man name Respondent's best Maui drivers, of whom
there were three working full time and seven or eight
working part-time . Speelman offered that Gouveia` was
"number one," and that Purdy conducted "fantastic
tours." Scott responded that he was "going to get rid of
Bella Gouveia the first ,time she calls Honolulu"-an -al-
lusion to her sometimes enlisting the intervention of
3 Speelman estimated his speed as between 5 and 10 miles per hour.
4 Also going to the scene was one Herman Naole
S As a consequence of neglecting to offload several pieces of luggage
after driving a tour group from its hotel to the airport on October 31,
1981, Speelman was suspended from November 4 through 10. The sus-
pension was administered by Scott's predecessor, Albert Fukutomi.
6 This rendition of the exchange between Scott and Speelman is ex-
tracted from an amalgam of their essentially nonconflicting testimony.
15
Scott's father and- grandfather with regard to problems
of employee concern on Maui;7 and that he was "going
to fire" another driver, Kimo Gapero, "the first time" he
complained about an assignment. Scott also chided
Speelman for exaggerating the size of King Kamehameha
and native Hawaiians in general in his tour narrations.
Speelman denied exaggerating, arguing that the Hawai-
ians "were large people" and that, with "`a Hawaiian-Ta-
hitian mix, you've got a tall mix of people."
The morning of the next day, January 6, Speelman
made two visits to the base. On the first, he asked Scott
for something in writing to reflect the suspension just
meted out. Scott obliged with this memorandum:
Memo To: David Speelman
Date: January 06, 1982
From: Scott Iwamoto
Subject: 2 Weeks Suspension
Effective Wednesday, January 6, 1982 through Jan-
uary 19, 1982. The reason for this,suspension is due
to the accident you had involving the tree branch at
lao Valley and your motorcoach.
Also on January 6, Speelman testified, apparently
during his first visit, he had a clandestine-"where
nobody could see us"-conversation with Gouveia, ap-
prising her, of Scott's intention to terminate her and
Gapero. Gouveia's response, as related by Speelman,
was, "We've got to go union for job protection."8
Leaving the base for a time, Speelman reported the ac-
cident to the police and accompanied an officer to the
scene; called on an office of, the Hawaii Department of
Labor, where he complained about his suspension, and
was told that -the Department was powerless to look into
the matter; and went to the hall of the Longshoremen's
Union, speaking to an official there about the suspension
and how Respondent's drivers might obtain representa-
tion.9
Back on the base later in the morning of January 6,
Speelman broached his suspension to Gouveia in the
drivers' lounge, then pursued the subject with her in her
parked bus. They presently were joined in the bus by
Purdy, Gapero, and Stanley, Sato, who runs Respond-
ent's Japanese-language tours on Maui,"" Gouveia testi-
fled that gatherings of 'this sort are "ark, everyday rou-
tine-every morning we get into the bus and listen to the
radio while we're, cooling off ourselves." But in this in-
stance Speelman complained about his suspension, and
there were complaints, as well, about dispatching proce-
dures that were depriving the "oldtimers"' of assignments
in favor of "the new drivers-, absorbed from a tour com-
pany, that recently had gone out of business.
Gouveia recalled Speelman's advocating, when the
State Department of Labor declined to intervene con-
7 Speelman testified: "If we couldn't talk to management , we talked to
[Gouveia] and she'd call'Honolulu [headquarters] and they'd come in for
a meeting and hash it out, settle it out."
8 Gouveia did not address this conversation in her testimony.
9 Speelman's uncontradicted testimony that he engaged in these activi-
ties is credited.
10 There is neither contention nor evidence that Sato is a statutory su-
pervisor.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cerning his suspension, it was "about time" the drivers
"see what the union can do for us." Gouveia recounted
that Sato, hearing this, "stomped out of the bus" while
proclaiming that the drivers and narrators did not "need
a union." To like effect, Speelman testified that, Sato
"walked out of the bus ... as soon a I said `union."'
Speelman, however, assigned no parting rhetoric to Sato,
averring that disapproval was apparent from "the way
his face was."- ,
Speelman testified that with .the exception of Sato it
was agreed during this gathering that the employees had
"to go union . . . for job protection"; and that he should
call Hayashi "to have an emergency . drivers' meeting
... to discuss what had happened to" him. Hayashi had
told the Maui drivers, in a meeting at the time Scott
became manager, that they were free to "contact" him
concerning "problems" that could not be resolved local-
ly. Gouveia testified, on the other hand, that those in the
bus after Sato's departure agreed with Purdy's suggestion
that, while the union was "a good idea," they "should
give" Scott "another month ... [to] . . . see how dis-
patching would be" before deciding "to do anything
else"; and that she proposed to Speelman, after the gath-
ering had broken up, that he call Hayashi to see if he
"could help" with regard to the suspension.
In the immediate aftermath of the gathering in the bus,
Gouveia testified, she confronted Scott, telling him that
she had been "on that road,.too, that morning"-i.e., the
Iao Valley road, the morning of the accident and that
she thought Speelman 's suspension was "stiff," especially
as he had been suspended shortly before. Scott coun-
tered, according to Gouveia, "If my drivers think they're
good drivers, they have to observe everything that's on
the highway," whereupon she uttered Scott's name, as if
in dismay, and broke off the conversation. Scott in es-
sence denied that this conversation took place, testifying
that Gouveia never spoke to him about Speelman's sus-
pension.
Whether pursuant to a consensus reached in the bus or
to a subsequent suggestion from Gouveia, Speelman
called Hayashi's office in Hawaii about noon on January
6. Hayashi's secretary answered, saying he was out,, and
offering to take a message. Speelman assertedly left word
that the Maui drivers felt the accident was not his fault
and that they sought "an emergency drivers' meeting"
with Hayashi to "discuss" the matter. Hayashi testified
that his first knowledge of the accident and the suspen-
sion came with receipt of the secretary's message.
Scott testified that he tried, unsuccessfully, to reach
Hayashi between the time of the accident and the next
day's issuance of the suspension memorandum. Scott
continued that, sometime after issuing the memorandum,
he informed his father, by telephone, of the accident and
the suspension. Scott avowedly , was "not sure" who initi-
ated this call, nor "of the exact day" it was made. He
ventured at one point that it was "the day after" the ac-
cident; at another, that "it was either the day of or the
day after"; and, at yet another, that "it was either one or
two days after." Robert, less tentative, testified that
Scott called him, "probably in the morning" of January
6, having been unable to "get ahold of" Robert on Janu-
ary 5.
Regarding the content, of his conversation with
Robert, Scott testified that after he had related what had
happened, Robert remarked that buses "are not supposed
to be going so fast" in the area of the accident, and
asked if any other tour drivers had been in the Tao
Valley the day it happened. Scott replied, so he testified,
that Nelson Waikiki of Grayline Tours had, prompting
Robert to direct that he "contact" Waikiki "as soon as
possible," ascertaining if he had seen the branch and was
able to avoid it, and then "get back to" Robert.
Robert's version of the conversation was, after Scott
told him about the accident and the suspension, he said
he wanted "more back-up information" to determine "if
it was a true accident or . . . an avoidable accident," and
instructed Scott to "check further,if there was any other
tour companies _up in that area when the accident oc-
curred or before Speelman had his accident." Robert
concededly had in mind overriding the suspension with a
"more extreme" sanction; and assertedly counseled Scott
that, Speehnan having been with Respondent "for a
number of years," it would be "unfair to jump to conclu-
sions" and take that "kind of action [without] more back-
up information.
Following this conversation, Scott testified, he located
Waikiki having lunch in Lahaina; was told that Waikiki
had seen the branch and had gone "into the left lane not
to hit it;11 and promptly called Robert-"I think it was
from Lahaina"-to report that Waikiki "saw the tree and
he didn't hit it." Robert's only response was an "okay,"
according to Scott, and the conversation was over.12
Robert 'testified that Scott did not report back until the
morning of the next day, January 7, when he told Robert
he had spoken with a driver for another company who
had "avoided the branch."
Robert testified that the morning of January 7, before
Scott's return call, he'called Lora Warren, vice president
of Grand Circle Travel Western (Grand Circle) in Long
Beach, California. Grand Circle accounts for about 5
percent of Respondent's tour business in Maui.13 Warren
previously had complained "about baggage mishaps" in-
volving Speelman and Gouveia, according to Robert;14
and the purpose of this call, "prompted" by Scott's rev-
elations about the accident, was to ask Warren "to re-
confirm the complaint and put it in writing." 1 s"She told
11 Waikiki testified that he saw the tree "sticking out at least about
two feet," and "had to go on the left side of the road to avoid the
branches." "About two days after that incident," Waikiki added, later
amending that "it was the same day," Scott asked him if he had seen the
tree, and he said he had and "just avoid[ed] it and continue [d] on [the]
tour."
12 Ostensibly seeking to impart plausibility to Robert's telephonic brev-
ity, as depicted by Scott, Respondent's counsel asked Scott if Robert was
"a busy man" and if his telephone conversations - often were "abrupt."
Scott answered both questions in the affirmative. ,
ma Hayashi testified that Respondent had 60 to 65 tour groups on Maui
in January 1982, of which three were from Grand Circle
14 The baggage oversight leading to Speelman's suspension in Novem-
ber 1981 involved a Grand Circle group. Gouveia also had neglected to
offload a bag involving Grand Circle about that time She paid $27 from
her own pocket to enable the bag to catch up 'with its owner, on Molo-
kai, the next day
15 Robert testified that although his call -to Warren was prompted by
word of Speelman's accident , "sometime during that month I would have
Continued
ROBERT'S TOURS
me," Robert stated in description of the call, "that she
definitely did not want both of these drivers on any
more of her tours," and he asked her "to put something
in writing" to that effect. Explaining why he wanted
something in writing, Robert admitted that he was
"thinking in terms of discharge or at least the possibility
of discharge." He expanded:
[I]f I got any more back-up regarding [Speelman's]
accident, I wanted things in writing, more definite
things with, I guess, more proof for my discharging
him if Scott came back with an answer like he did.
Following this conversation, Robert dispatched this
memorandum to the Maui base:
I have just received a call from Grand Circle
Travel (Laura [sic] Warren) who operates
NRTA/AARP complaining about Speelman and
Bella. The complaint is that, recently, these drivers
have forgotten bags on their bus and in the past she
complained to me about them [Speelman & Bella]
compared to the other drivers on the rest of the is-
lands. She has requested that they no longer be as-
signed to her tours.
Therefore, effective immediately, both of these driv-
ers will not handle any Grand Circle tours. I will
send you a copy of the complaint letter when I re-
ceive it.16
After calling Warren and then receiving Scott's report
the morning of January 7, Robert testified, he called
Hayashi in Hawaii, directing that he go to Maui "as soon
as possible, preferably that day, and terminate Speel-
man." Robert explained, so he related, that Speelman
had "had an accident a couple days before," that he "ap-
parently . . . just ran into the branch and could have in-
jured our passengers," that another driver had "avoided
hitting the branch," and that "it was an accident that our
driver could have avoided." Robert also adverted, as he
recalled, to Speelman's November suspension over the
baggage matter. ^ Hayashi replied, according to Robert,
that he would go to Maui immediately, and mentioned in
passing that he had just received a complaint call from
Speelman that the latest suspension was "harsh and
unfair" and that Speelman wanted a meeting about it.1 7
had to call her back . . . because she had already told me that she
wanted an answer !from me as to what actions we were going to take to
better our services on . . . Main."
16 Accommodating Robert's request for "something in writing,"
Warren sent'him a';letter, dated January 8, in which she stated-
We are again receiving many, complaints about your drivers David
Spellman [sic] and Bella on the island of Maui . I had spoken to you
before about this matter and we had decided to wait until we re-
ceived some more complaints. Which we have and I now feel that I
must request that our groups do not get these drivers anymore, ef-
fective immediately 'Thank you for your help in this matter and do
hope my request doesn't cause you too many problems
17 Robert testified that Hayashi, although saying that Speelman wanted
a meeting, did not ;say Speelman wanted a drivers' meeting. Hayashi testi-
fied that the message relayed by his secretary was that Speelman wanted
his suspension reconsidered , and that he knew nothing about Speelman's
wanting a drivers' meeting
17
Hayashi's version of Robert's call' was that Robert
cited "a combination of three factors" in support of the
discharge decision-Respondent "had a problem in Maui
and . . . [Robert] wanted to clean up the operation,"
Speelman "had a serious avoidable accident," and "the
complaint letter from Grand Circle Tours." 18
Robert averred that he called on Hayashi to effect the
discharge, rather than Scott, because of Scott's "age and
inexperience ... [and] . . . to relieve him of the burden
and, I guess , not having him be the bad guy." Hayashi
admitted that he "thought it was pretty funny that
Robert would be calling [him] a couple hours after
[Hayashi's secretary had] received [the] call from Speel-
man."
Hayashi flew to Maui the afternoon of January 7. On
arrival, he obtained Speelman's and Gouveia's personnel
files and telephone numbers from Scott, then called
Speelman, arranging for them to meet later in the day.
Scott testified that his first knowledge of the impending
discharge came when Hayashi told him he had been
"sent" to "swing his ax" on Speelman and to talk to
Gouveia about the matters raised in Robert's memoran-
dum of the Warren telephone conversation. 19 Scott's im-
mediate reaction to this disclosure, he testified, was to
shake his head and walk away. Asked why he did this,
Scott testified, "I felt like the bad guy, you know." Scott
recalled that he shortly asked Hayashi, "How can you
guys come over here, after I suspend somebody, and fire
him?" Hayashi's answer, as related by Scott, was that "it
was out of his hands."
Hayashi and Speelman met in the late afternoon of
January 7. As remembered 'by Speelman, Hayashi
showed him the memorandum of Robert's conversation
with Warren, along with a 1979 letter, never before seen
by Speelman, attributing a baggage mixup to Speel-
man.20 Speelman assertedly defended: "Well, what about
my record? Where is all the over a hundred letters, com-
plimentary letters that I had from tour groups, agents,
people on the bus?"81 Whether Hayashi' acknowledged
this query was not disclosed in Speelman's account.
Speelman went on that Hayashi, citing the accident and
Warren's reported request that he no longer be assigned
to Grand Circle groups, declared, "We cannot work
around you, and you are terminated this night."
Speelman's version proceeded that, seeing Gouveia's
name as well as his own in Robert's memorandum of the
Warren conversation, he asked what was going to
happen to her; and that Hayashi said she was to be dis-
charged "tomorrow morning."22 Speelman also re-
8.
38 As earlier noted, the letter solicited from Warren was dated January
is Scott to the contrary, Hayashi testified that his only purpose in
going to Maw was to terminate Speelman.
20 This letter is not in evidence, nor is there any evidence of the al-
leged underlying incident
21 Speelman testified that letters complimenting the drivers are posted
in the drivers' lounge "for three or four days, then they take these letters
down and they're supposed to put [them] in the driver's file " None is in
evidence.
22 It will be remembered that Speelman testified, elsewhere, that Scott
told him, January 5, that he intended to "get rid of" Gouveia the first
time she called Honolulu Arguing in its brief that Speelman is generally
Continued
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
marked, so he recounted: "[Y]our drivers are the ones
who told me to call you up to have an emergency meet-
ing. What about our meeting? Hayashi answered, per
Speelman:- ' "You're not with Robert's anymore and you
can't hold a meeting. There will be no meeting."
Hayashi's account of the meeting was that he invited
Speelman, "at the beginning," to tell him "about his situ-
ation regarding the accident"; and that Speelman "raised
some unhappiness toward the two weeks' suspension,
feeling it was severe." Hayashi related that he then
showed' Speelman a complaint letter and Robert's memo-
randum of theWarren conversation, in addition citing
"specific examples" of which he was aware of com-
plaints about Speelman from Grand Circle ("in particular
the statement about King Kamehameha's height and his
weight"), after which he announced that Speelman had
"no future with the company as a result of a complaint
and of the accident." With that, Hayashi continued,
Speelman raised the- prospect of causing a work stop-
page-"the context was that he was going to have the
drivers walk out." Hayashi denied that Speelman said
anything' about' Hayashi's having a meeting with the
drivers.
The next day, January 8, Speelman returned to the
base, "insisting," as Hayashi put it, "on a letter of termi-
nation." Hayashi acceded, himself typing this letter:
Dear' David,
You have been employed with Roberts [sic] since
Sept, 1976.,On 8/14/79 Maui office received a letter
of complaint concerning handling of passengers and
baggage by you at the airport on 8/14/79 at 0800.
On 11/4/81, you were suspended 7 days for fail-
ure to drop off, baggage on a Grand Circle group.
At that time you were warned about further reper-
cussion from the mainland agent that further dissi-
plinary [sic] action will be taken;
On 1/5/82 you had an accident involving a tree
at lao Valley where the front windshield was hit
and cracked, and luckily no one was injured. _ ,
On 1/7/82, Roberts [sic] Hawaii Honolulu office
received a complaint from Grand Circle Travel,
one of our most valued, accounts. The complaint
was in regards to service rendered by David Speel-
man on Maui. Mentioned was a specific incident in
Oct. 1981, when bags were forgotten on a bus, and
your inability to compare with the rest of the is-
lands [sic] drivers. The complaint went on, and re-
quested that we no longer use David on their tours.
As a result of the above, inconvenience to our
passengers and agents, willful disreguard [sic] for
company equiptment [sic] and safety of passengers,
and the problems created for 'scheduling, your em-
unworthy of belief, Respondent notes that he answered "yes" when
asked if Hayashis January 7 remark about Gouveia's 'imminent dismissal
was "the ' first time that any management person told [hun ] that Bella's
job was in jeopardy." Respondent fails to mention Speelman's answer to
the very next question-Whether Hayashi's remark was "the first time
that any -management person told [him] that Bella was going to lose her
job." (Emphasis added.) He not only answered in the negative, but men-
tioned Scott's January 5 comment.
ployment with Roberts [sic] Tours is terminated ef-
fective Jan. 5, 1982.
Regretfully,
/s/ Gerald Hayashi
It is undisputed that the second and fourth paragraphs of
the letter refer to the same incident.
On January 8, as well, Hayashi met with Gouveia,
having called her the previous evening to request it. The
meeting began, Gouveia testified, with Hayashi's asking
if she knew why she had been called in. She answered in
the negative, as she recalled, and Hayashi asked if she
knew about Speelman's discharge. She assertedly replied
that she did not, that she had "heard" only that he had
been suspended. Hayashi rejoined, according to Gouveia,
that Speelman had "wanted to call a drivers' meeting"
and was terminated. Hayashi expanded, as told by Gou-
veia:
We don't call no meeting for no David Speelman, a
special drivers' meeting. Do you know that Rob-
ert's don't like to have union in the company? Do
you know that was a threatening thing when David
says that he will call the drivers together and do
not move the equipment?
Gouveia testified that Hayashi then "mentioned about"
Speelman 's accident and Robert's memorandum of the
Warren conversation, with its reference to Gouveia, and
stated that she "couldn't handle those groups anymore
because of" Warren's request.
Hayashi's version of ' his meeting with Gouveia was
that he "made Bella aware that Speelman was terminat-
ed, and . . . brought it to her attention that she had re-
ceived a complaint similar to the complaint that David
Speelman had received"-that she "was mentioned on
the very same inter-office memo" from Robert. Hayashi
professedly then asked why Warren did not want Gou-
veia on Grand Circle tours and why Respondent was not
"getting what [it] expect[ed] out of [its] senior drivers."
Gouveia answered, Hayashi continued, that she was
"trying her best," thought she was "doing a good job,"
"enjoyed her job," and "was willing to do: anything in
terms of work to keep her job-to accept transfers, Japa-
nese tours, whatever was available." Transfers are shut-
tles between the airport and various hotels, as opposed to
tours. Gouveia "understood," according to Hayashi, that
she no longer would be assigned to Grand Circle groups.
Hayashi testified that he could not remember mention-
ing Speelman's "remarks about pulling out the drivers,"
and that he did not say "anything . . . that related to the
union . . . [or] . . . regarding Robert's attitude toward
unionization."
Scott testified that he had a conversation with Gou-
veia "a day or two" after Speelman's discharge in which
she said she was "willing' to do anything"; that, citing
"as an example" Grayline's use of "lady bus drivers" to
drive transfers, she was willing to "come in early, and do
Itransfers."
The parties stipulated that Gouveia's "opportunity for
work in conducting tours was reduced" as of this time.
ROBERT'S TOURS
Gouveia testified that she since has been assigned no
tours, instead being used solely as a transfer driver. This
apparently has not affected her base pay , but, as she put
it, "the difference is tip-wise." She has driven for Re-
spondent since 1969.
Robert testified that , because of Scott 's report that
others had avoided the branch, he "determined that
[Speelman] willfully disregarded the safety of passen-
gers" at the time of the accident. He added, "I probably
feel [that Speelrnan] purposely put the lives of those pas-
sengers in danger ." Similarly , Hayashi professed to be-
lieve, from "the speed of [Speelman's] bus" and from
"the conditions that he described," that Speelman "had
willful disregard for the safety of his passengers." Scott
disagreed , testifying that, while the accident resulted
from "the driver's negligence," Speelman dii1 not "pur-
posely disregard the safety of the passengers." Scott fur-
ther testified, echoing his comment to Speelman the
evening of January 5, that he did not think the accident
warranted discharge, and that he did not feel the 2-week
suspension amounted to letting Speelman "off easy."
Hayashi acknowledged that Respondent's drivers "do
occasionally get involved in accidents." In fact, its Maui
drivers had 19 accidents in 1982; counting Speelman's;
and, except for Speelman, there is no evidence that dis-
charge followed. In 1976 and again in 1978, Hayashi ter-
minated drivers on Hawaii , in part because of their acci-
dent records. The termination letter concerning the 1976
action cited three accidents in ' less than 1 month, plus
two instances of insubordination, 2 3 and that relating to
the 1978 action referred to three accidents in a 4-month
span, together with one complaint about tour quality.
There is no evidence of other accident-related dis-
charges, nor is there convincing evidence that Speelman
was in other than the one accident.24
Robert testified that Respondent 's main problem on
Maui around the time of the events in question was "cus-
tomer complaints because of the quality of drivers. "I
would guess we had about two or three complaints a
week," he enlarged, "not only on Speelman, but a
number of drivers." He continued that tour groups had
lodged "a number of complaints" about Speelman,
"about his service," but that he had no verifying docu-
mentation . Hayashi averred that he "personally" had re-
ceived "a lot of complaints about" Speelman, particular-
izing that he had received two of "a verbal nature"; and
that they "led us to believe" that Speelman 's tour narra-
tions betrayed a weakness in his knowledge of
"Hawaiiana." Hayashi admittedly did nothing to docu-
ment such complaints , nor did he mention them to Speel-
man before the meeting in' which Speelman 's discharge
was announced . Scott's testimony concerning complaints
about Speelman was ambiguous , if not contradictory, it
finally becoming evident that the only predischarge com-
plaint of which he had heard was that leading to the sus-
pension in November 1981.
22 A passenger suffered a broken collarbone in one of the accidents
leading to the 1976 discharge.
24 Scott 's testimony that he knew of Speelman's being in "a couple ac-
cidents" before that on January 5 was devoid of particulars and unpersua-
sive
19
Robert denied that he knew about "any union activity
or interest" by Speelman, or that Speelman was seeking
a drivers' meeting , before he made the discharge deci-
sion . Hayashi and Scott made similar disclaimers.
2. Conclusions
Speelman . It is concluded that Speelman 's discharge
violated Section 8(a)(1) as alleged.
The bases for this conclusion are:
1. Speelman had driven for Respondent for over 4
years, which indicates that his overall performance was
satisfactory.
2. The day before the discharge, and after Speelman
had been suspended over the accident, he was the focal
point of the gathering in the bus in which he and other
employees discussed not only the suspension , but their
anxieties about dispatching procedures and job security,
and the feasibility of their consequently seeking union
representation . 2 5 This plainly was protected activity,
both because it dealt with matters of shared employee
concern in the context of the workplace and because
union representation was considered as a recourse.
3. Also discussed , either during the postsuspension
gathering in the bus , orjust after between Speelman and
Gouveia, was the desirability of a meeting with Hayashi,
after which Speelman left word with Hayashi's office
that the drivers felt the accident was not his fault and
that a meeting was wanted . 26 Speelman's call to the
office likewise was protected , flowing as it did from the
protected activity on the bus and because it sought a
meeting with Hayashi about at least one matter of
common employee concern-Respondent 's treatment of
him following the accident.
4. That Respondent somehow had learned about these
protected activities and was motivated by them to dis-
charge Speelman is indicated by: (a) Hayashi 's testimony
that he "thought it was pretty funny" that Robert would
call him to take the action only "a couple hours after"
Speelman 's call to Hayashi's office, and (b) Hayashi's
January 8 remarks to Gouveia; while telling her about
the discharge, that Speelman had "wanted to call' a driv-
ers' meeting," and that Respondent "don't like to have
union in the company."27
5. That the accident was a pretext rather than a true
reason for the' discharge is revealed, most graphically, by
Respondent's already having imposed discipline-the 2-
week suspension-for it. The testimony of management
witnesses-Scott, Robert, and Hayashi--was unpersua-
sive that Scott alone knew about the accident until after
the suspension was handed out . It is altogether improb-
able that Scott, little more than a cypher in the manage-
ment of the Maui operation, would have dealt with such
25 Speelman and Gouveia are credited that the discussion in the bus
embraced the named subjects.
26 Speelman is credited that this was the , substance of his message.
Hayashi's secretary did not testify
2' Ha j,ashi 's demals notwithstanding, Gouveia is credited that Hayashi
made the remarks attributed to him. Gouveia had the more convincing
demeanor
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a situation and taken such action independently. 28 More-
over, Scott's testimony about the timing of his first
postaccident conversation with Robert, while so laced
with equivocation as to suggest historical revisionism, at
one point allowed that it could have been "the day of"
the accident; and Nelson Waikiki, supposedly inter-
viewed by Scott after that first conversation, testified
that the interview was "the same day" as the accident.
6. Other compelling indicia that the accident was a
pretext are: (a) Robert's perceived need to dredge up
other of Speelman's misfortunes, as witness his solicita-
tion of Warren to submit a complaint against Speelman,
the avowed purpose being to build a case in aid of Rob-
ert's predisposition to terminate Speelman ,29 (b) the rank
absurdity of Robert's professed belief that Speelman
"purposely put the lives of those passengers in danger,"
and of Hayashi's stated opinion that Speelman "had will-
ful, disregard for the safety of his passengers," (c) Scott's
testimony that he did not think the accident warranted
discharge and that, by imposing the 2-week suspension,
he did not feel he was letting Speelman "off easy," and
(d) Scott's reaction of shaking his head and walking
away when he learned from Hayashi that discharge was
forthcoming, and Hayashi's nonresponse that it was "out
of his hands" when challenged by Scott how Speelman
could be fired after already having been suspended for
the, same offense,S° which betrayed the, visceral feeling
of both that discharge was disproportionate to any acci-
dent-related misconduct.
7. The accident as pretext is additionally shown by: (a)
the considerable incidence, otherwise; of accidents in-
volving Respondent's Maui drivers, without discharge
resulting, (b) the absence of convincing evidence that
Speelman was in other than the one accident, and (c) the
fact that the only other accident-related discharges of
which there is evidence were in response to circum-
stances far more aggravated-three accidents in less than
a month in one instance, and three accidents within 4
months in the other.
8. That the other reason prominently advanced for the
discharge-Warren's complaint-likewise was pretex-
tuous is revealed by: (a) Robert's having solicited it, ad-
mittedly preparatory to discharging Speelman,31 (b) the
speciousness of Hayashi's statement to Speelman, when
effecting the discharge, that Respondent could ; not
"work around" him in making assignments in view of
Warren's request that he no longer be assigned to Grand
Circle groups, when Grand Circle represented only
about 5 percent of Respondent's Maui business, (c) Re-
spondent's customary failure, apparently, to discharge or
otherwise penalize its Maui drivers despite its receipt, as
211 Scott's being manager in name but not much more was demonstrat-
ed by his admission that Hayashi oversaw "everything" he did, by Haya-
shi's`bald invitation to the Maui drivers,'when Scott was named manager,
to take their problems to him if they could not be settled locally, and by
the cavalier circumvention of Scott to effect Speelman's discharge
29 Robert's self-serving testimony is not credited that he would have
called Warren "sometime during that month" in any event.
30 Scott, not contradicted, is credited with respect to this exchange
with Hayashi.
21 Robert having solicited Warren's complaint with a specific purpose
in mind , an inference is in order that her subsequent letter was written as
an accommodation and not from conviction.
Robert testified, of two or three complaints a week
against "a number of the drivers, and (d) the fact that
the testimony of the management witnesses about com-
plaints against Speelman; other than the one solicited
from Warren, was so devoid of substantiating detail as to
indicate testimonial bad faith.
Gouveia. It is concluded that the denial to Gouveia of
tour-group assignments, roughly coincident with Speel-
man's discharge, also violated Section 8(a)(1) as alleged.
This conclusion is grounded on these factors:
1. Gouveia had driven for Respondent since 1969-a
powerful indication that her performance was generally
acceptable.
2. She participated in the same January 6 protected ac-
tivities in the bus as did Speelman, after and as a manifest
outgrowth of which she confronted Scott about the
harshness of Speelman's suspension.32
3. As earlier observed, Respondent revealed its knowl-
edge of and hostility to the protected activities, in part,
by Hayashi's January 8 remarks to Gouveia.
4. The inference is unavoidable that the action against
Gouveia was prompted by the same improper motivation
that underlay Speelman's discharge. Beyond coinciding
in time with the discharge, its purported justification was
the same complaint-soliciting call from Robert. Common
motive is inferable, as well, from Hayashi's having gone
to Maui for the express purpose, stated to Scott, of deal-
ing with both Speelman and Gouveia;33 and from Haya-
shi's prefacing his January 8 disclosure to Gouveia of her
reduced status with a pointed discussion of Speelman's
discharge, Speelman's having "wanted to call a drivers'
meeting," and Respondent's not wanting "to have union
in the company."
The allegedly unlawful threats and interrogation. Credit-
ing Gouveia, Hayashi asked her, on January 8, if she had
heard about Speelman's discharge, and exclaimed, later
in the same encounter:
Do you know that Robert's don't like to have union
in the company? Do you know that was a threaten-
ing thing when David says that he will call the
drivers together and do not move the equipment?
The two comments just set forth, while in question
form, obviously were designed less to interrogate than to
impart information. Uttered in the context of Speelman's
discharge, they necessarily conveyed the message that
employees promoting union representation or a concert-
ed work stoppage to protest conditions of employment
would be placing themselves at risk of Speelman's fate.
That the message was not lost on Gouveia is revealed by
her ensuing verbal genuflections to Hayashi and to Scott
that she was "willing to do anything" to keep her job.
It is concluded that Hayashi, by thus threatening Gou-
veia with regard to protected activity, violated Section
8(a)(1) substantially as alleged.
32 Gouveia, her demeanor more convincing than Scott's, is credited
that this confrontation occurred and was as described by her
33 Scott is credited that Hayashi said he was on Maur for the dual pur-
pose.
ROBERT'S TOURS 21
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) of the Act, as
found herein, by:
1. Discharging David Speelman on January 7, 1982.
2. Denying group-tour assignments to Bella Gouveia
beginning about January 8, 1982.
3. Threatening Gouveia with job loss or other adverse
action should she engage in certain activities protected
by the Act.
Respondent did not otherwise violate the Act as al-
leged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed34
ORDER
Respondent , Robert's Tours & Transportation , Inc., its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging , withholding driving assignments
from, or otherwise discriminating against its employees
because of their activities protected by the Act.
(b) Threatening employees with job loss or other ad-
verse action should they engage in activities protected
by the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of
rights under the Act.
2. Take the affirmative action necessary to "effective
the purposes of the Act.
(a) Offer to David Speelman immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority and other rights and privileges ; and make
34 All outstanding motions mconsistent with this recommended Order
are denied . In the event no exceptions are filed as provided in Sec. 102 46
of the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
him whole for any loss of earnings or benefits suffered
by reason of his unlawful discharge , with interest on lost
earnings.3s
(b) Restore Bella Gouveia to her job duties as they ex-
isted before we began unlawfully withholding tour-bus
assignments from her on about January 8, 1982; and
make her whole for any loss of earnings (including tips)
or benefits suffered by reason of that unlawful withhold-
ing, with interest on lost earnings.36
(c) Preserve and make available, on request, to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amounts of backpay and benefits
owing under the terms of this Order.
(d) Post at its place of business on Maui, Hawaii, the
attached notice marked "Appendix ."37 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's au-
thorized representative , shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees customari-
ly are posted . Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, de-
faced , or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the allegation con-
cluded to be without merit is dismissed.
as Backpay shall be computed in accordance wish F. W. Woolworth
Co, 90 NLRB 289 (1950) Interest shall be computed as prescribed in
Florida Steel Corp; 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962)
88 See fn . 35, supra. _
34 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 Nation-
al 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 "