Southern Tours, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1967

167 N.L.R.B. 363 (N.L.R.B. 1967)

SOUTHERN TOURS, INC.
Southern Tours, Inc., and Gulf Coast Motor Lines,
Inc. and Amalgamated Transit Union Local Divi-
sion 1326, Amalgamated Transit Union, AFL-
CIO. Cases 12-CA-3526-2,and 12-CA-3599
September 8, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On February 13, 1967, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding, finding that the Respondent' had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief. The Respondent also filed a Motion
for an Order to Reopen the Record, which is denied
for the reasons set forth below.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's ex-
ceptions and brief, and the entire record in these
cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, only
to the extent consistent herewith.
1. The Trial Examiner found that the Respond-
ent coercively interrogated employees concerning
their union activities, promised pay raises and other
benefits conditioned on withdrawal from the Union,
corrected grievances in order to induce withdrawals
from the Union, created the impression of surveil-
lance, engaged in surveillance of union activities,
and threatened to eliminate available work and to
furlough or discharge employees, in violation of
Section 8(a)(1) of the Act. We agree. The Respond-
ent, in fact, conceded that it engaged in most of
the conduct on which these findings are based.
2. The Trial Examiner found that the Respond-
ent further violated Section 8(a)(1) by attempting
' The parties agreed, and we find, that the two corporations constitute
a single employer, referred to herein as the Respondent Byron Shouppe,
who had owned Southern Tours for some time, on December 28, 1965,
purchased the controlling interest in Gulf Coast, which runs a common
carrier service under an 1CC charter The Trial Examiner's Decision
states that Gulf Coast operates an "intrastate transit bus service "
Shouppe's undisputed testimony, however, is that "Gulf Coast Motor
363
"to secure withdrawals from the union by support-
ing and promoting an antiunion petition." The
Respondent has excepted to these findings, and
contends that the petition was originated and circu-
lated entirely without its support. We find merit in
these exceptions for the reasons set forth below.
The Union began its organizational campaign at
the Respondent's bus terminals at St. Petersburg
and Clearwater, Florida, early in March 1966. On
May 5, the Union filed a petition for a Board elec-
tion.'' Thereafter, Walter Bouvier, a busdriver at the
St. Petersburg operation, prepared and circulated
a petition seeking withdrawal of the election peti-
tion. As the Trial Examiner found, the Respondent
knew that the petition was being circulated and did
not interfere with its circulation. There is no
evidence, however, that Bouvier had been cloaked
by the Respondent with any authority which could
render it responsible for his actions, that Bouvier
circulated the petition during worktime or in the
presence of any of the Respondent's supervisors, or
that the petition was given any affirmative support
by the Respondent. Accordingly, we find that the
record does not establish that the Respondent sup-
ported or promoted the petition in violation of the
Act.3
3. The Trial Examiner concluded that the
Respondent unlawfully refused to bargain with the
Union since July 25, 1966. Although the Respond-
ent attended meetings with the Union's represent-
atives on August 16 and 17, 1966, following the
Union's certification on July 15, the Trial Examiner
found, and we agree, that the Respondent had no in-
tention at these meetings of bargaining with the
Union in good faith. Accordingly, we find, upon the
entire record, that the Respondent refused to bar-
gain with the Union on or about July 25, 1966, in
violation of Section 8(a)(5) and (1) of the Act.
At the time the Respondent filed its exception
and brief, it also filed a Motion for an Order to
Reopen the Record. In this motion it asserted that
the parties on March 9, 1967, after the close of the
hearing, executed a collective-bargaining agree-
ment, and therefore urged that it should not be
required, as recommended by the Trial Examiner,
to post a notice providing that it would resume
negotiations with the Union and bargain in good
faith. The motion requests that the Board reopen
the record to take evidence concerning this matter
or, alternatively, "enter an order acknowledging the
occurrence of the subsequent events as herein al-
leged so that the same may be considered, if neces-
sary, in fashioning the ultimate decision and order
upon the Respondent's exceptions to the Trial Ex-
Lines runs common carrier service," that it does not have any "transit ser-
vice," and that "it does have Charter rights that were granted by ICC to
all 48 states "
2 An election was held on July 7, 1966, and the Union was certified on
July 15
S Stewart & Stevenson Services, Inc , 164 NLRB 741.
167 NLRB No. 42
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer 's Decision ." It is well settled that an em-
ployer 's execution of a contract with a union with
which it previously refused to bargain in violation
of the Act does not render the issue of such viola-
tion moot .4 The motion is therefore denied.
4. The Trial Examiner found , and we agree, that
Respondent discharged Wayne Hutchens on May
23, 1966, in violation of Section 8(a)(3) and (1) of
the Act. We are unable to share our dissenting col-
league 's view that the finding of discriminatory
motivation in Hutchens ' case is unsupported. The
record shows that Hutchens prior to his discharge
had been employed for 9 years in the same bus-
driver job , had satisfactorily performed his duties in
that job , and had enjoyed an exemplary record for
safe driving - all this notwithstanding his almost
life-long physical impairment , for which he had
compensated by developing a strong substitute
muscular pattern that enabled him, as Dr. Clegg
was later to agree , to "drive a passenger bus well if
he is adjusted to a proper height ." The Respondent
never questioned Hutchens ' suitability for the job
he held until shortly after it learned of his leadership
role in the Union 's organizational drive . Although
Hutchens was then certified under ICC regulations
as physically fit to drive a bus, the Respondent
within 2 days after the Union made its bargaining
demand initiated the accelerated medical examina-
tion that led to his discharge . About the same time,
the Respondent launched an intensive campaign to
defeat the Union . The many and varied unfair labor
practices engaged in by the Respondent in the
course of that campaign , as herein found , can leave
no doubt of Respondent 's virulent opposition to
union organization . On the foregoing facts, we think
it clear that the General Counsel made out a prima
facie case of unlawful discrimination as to
Hutchens.
Our dissenting colleague would nevertheless
uphold the Respondent's defense that it was led to
discharge Hutchens only because Dr. Clegg, fol-
lowing his medical examination of Hutchens, ex-
pressed the opinion that Hutchens, "because of his
inability to properly employ the right leg without
the substitution pattern - could not be qualified to
continue operating a motor vehicle."5
In reaching that conclusion, the dissent relies
mainly on Dr. Clegg's obvious credentials and upon
the fact that his medical findings stand on this
record unimpeached. But that approach appears to
us to miss the point. The Respondent makes no
claim that it accelerated the usual time for a further
examination because it believed, or even suspected,
that any change had occurred in Hutchens' physical
condition. Were it not for the accelerated examina-
tion the Respondent required Hutchens to take, the
likelihood is that Hutchens would have remained in
the Respondent's employ as a busdriver at least
until the expiration date of his then outstanding
medical certificate. Thus, as we see this case, the
determination of whether Hutchens was unlawfully
discriminated against turns on whether the Re-
spondent would have required Hutchens to submit
to a new medical examination at the time it did,
but for Hutchens' union activities.
On all the evidence, we are persuaded, as was the
Trial Examiner, that the Respondent would not
have done so. The Trial Examiner discredited the
explanations advanced by the Respondent, we
think with reason. The Respondent asserts that,
because of Hutchens' obvious limp and the adverse
impression this might make on a jury in case of an
accident, it wanted the protection of another physi-
cal examination so that two doctors would be
available to testify concerning Hutchens' physical
condition, and that this was its only motivating con-
sideration in sending Hutchens to Dr. Clegg. But
that explanation leaves us unimpressed. Hutchens'
limp was nothing new, it had been known to
Shouppe, the new owner of the Respondent, since
he took over the Respondent's management some
5 months before, and it appears implausible to us
that the Respondent would have delayed so long its
request for an added examination if protection from
a possible damage suit was the true object of its
concern. We note, moreover, as did the Trial Ex-
aminer, that the Respondent exhibited no like con-
cern with respect to another employee,
Swickheimer, who, too, had a limp, and who wore
a brace on one of his legs. Nor do we find impres-
sive the Respondent's further explanation that it felt
obliged to initiate a further medical examination at
the time it did because Hutchens had been
questioned by a passenger a week or two earlier
about his fitness to drive a bus. Hutchens had fully
satisfied the curiosity of the passenger by exhibiting
to him his medical certificate, no complaint either
4 United States Gypsum Company , 143 NLRB 1122, 1127, N L R.B
v. American National Insurance Co., 343 U S 395, 399, fn 4, N L R B
v Mexia Textile Mills, Inc , 339 U S 563
5 The suggestion in the dissent that Dr Clegg found that Hutchens'
paralysis of the right quadriceps resulted in an "inability to properly take
the feet off the accelerator and put it on the brake and return it" does not
precisely reflect the record As is evident from Dr Clegg's written report,
as well as from his testimony , Dr Clegg conceded that Hutchens had
developed "a good pattern of substitution with strong muscles" that ena-
bled him to "lift his right leg off the floor" and "to drive a passenger bus
well if he is adjusted to the proper height," even though he could not ex-
tend his leg horizontally from a sitting position Although there had been
no change in his condition since childhood , Hutchens , during the many
years he had worked as a passenger busdnver , had always passed the
periodic medical examinations required under ICC regulations and had
been certified as physically fit to dnve We find no support for the state-
ment in the dissent that Hutchens "admitted that no other doctor had ex-
amined the condition of his right leg for the effect it had on his ability to
drive a bus " Hutchens' testimony was that none of the doctors who had
previously examined him had asked whether or not he could extend his
right leg horizontally from a sitting position His inability to do so was the
specific reason stated to him by the Respondent for his disqualification
But, as the Trial Examiner commented , this appears to boil down to an as-
sertion that Hutchens was found disqualified "for being unable to do what
he did not have to do to drive a bus, i.e , extend his right leg horizontally."
SOUTHERN TOURS, INC. 365
from the passenger or any regulatory agency had
followed or was anticipated, and, as the Trial Ex-
aminer observed, "the incident of the challenge
really changed nothing." Although this incident was
reported by Hutchens on the day it occurred, it ap-
parently was not considered a matter of importance
until shortly after the Union made its bargaining de-
mand, when the Respondent suddenly began to act
with a sense of urgency as if a crisis had developed.
But we think it apparent from the Respondent's
other conduct that the real crisis as the Respondent
envisioned it was rooted in the strength of union or-
ganization as reflected by the bargaining demand.
Considering Hutchens' leadership in the Union's
organizational effort, we are unable to isolate
Respondent's action with respect to Hutchens from
its almost simultaneous launching of a campaign to
defeat the Union by other unfair labor practices,
nor can we lightly pass off the concurrence of
Respondent's actions as mere coincidence. R'ther,
we are persuaded from all the circumstances that
the Respondent was also impelled by discrimina-
tory considerations in requiring Hutchens to submit
to a medical examination at the time , and that it
did so in the hope, if not the expectation, of an
adverse report that might provide a colorable basis
for discharge.
Our conviction that the Respondent's referral of
Hutchens to Dr. Clegg, as well as its ensuing
complete termination of his employment, was un-
lawfully motivated is reinforced by the Respond-
ent's failure to hold to its promise to Hutchens,
when it sought his consent to the medical examina-
tion , that it would assure him a job with the Re-
spondent in Clearwater regardless of the outcome
of the examination . The inference in the dissent
that the Respondent offered Hutchens other jobs is
not supported by the credited evidence,6 and is con-
trary to the finding of the Trial Examiner. The credit-
ed testimony shows that the Respondent never
specifically offered Hutchens any other job, and at
the final discharge interview informed him that it
had no place for him either in Clearwater or St.
Petersburg . It is true that earlier , in response to in-
quiries by Shouppe, Hutchens had conceded that he
did not have enough mechanical ability to work as a
bus mechanic and would not be interested in the
menial job of washing and maintaining buses which
carried a rate of $1.25 an hour as compared to the
busdrivers' hourly rate of $2. But when Shouppe
made these inquiries he must have known that
Hutchens did not possess a bus mechanic' s skills,
and, as Shouppe's own testimony reveals, Shouppe
himself anticipated that Hutchens would not want
a bus washing job. These, then, can scarcely be
characterized as good-faith job offers. We consider
it significant, moreover, that at the same time as
Shouppe made the foregoing inquiries, he also
asked Hutchens whether he thought he could work
in the freight room, and when Hutchens replied that
he could, Shouppe quickly stated that he had no
openings in that position.
The foregoing circumstances provide in our view
firm support for the concluding inference we draw,
that Respondent's course of action with respect to
Hutchens, as well as its final and total termination
of his employment, was prompted by unlawfully
discriminatory considerations and was therefore
violative of Section 8(a)(3) and (1).
5. The Trial Examiner concluded that the
Respondent -discharged Hitchcock and Barfield,
and suspended Walters and Brogan for 5 and 10
days respectively, in order to discourage union
membership and activity, in violation of Section
8(a)(3) and (1) of the Act. In so concluding, the
Trial Examiner found that Hitchcock, Barfield,
Brogan , and Walters were "outstanding union sup-
porters" and that there was no question that
"Shouppe was perfectly well aware of their union
activities." The only evidence as to the union activi-
ties of these four individuals shows, however, that
each signed a card and that three of them, Brogan,
Walters, and Barfield, attended the union meeting
on June 20 in St. Petersburg.' Furthermore, the al-
leged discrimination in regard to all four of these in-
dividuals took place after the Union had won the
Board election held on July 7, 1966.8 In addition,
the record shows that Shouppe, as the new owner
of Gulf Coast, was making many personnel
changes, including discharges and suspensions, on
the same grounds as those asserted for the actions
here in issue . Therefore, and for the further con-
siderations set forth below, we are unable to agree
with the Trial Examiner that the reasons asserted
by the Respondent for its actions in this regard were
pretexts.
(a) Hitchcock: On July 13, Shouppe and his
son rode on Hitchcock's bus to Clearwater to pick
up a car they had left there. During the trip, they
kept a record of the number of passengers getting
on and off the bus.9 Although Shouppe did not nor-
mally do this, he employed "checkers" to ride buses
6 The Trial Examiner , as is apparent from his Decision , credited
Hutchens ' testimony over that of Shouppe . Elsewhere in his Decision he
found Shouppe "wholly unworthy of credit" and one "whose testimony
must be rejected except where it is consistent with the testimony of the
General Counsel' s witnesses ." We find no basis in the record for disturb-
ing the Trial Examiner 's credibility appraisals . Standard Dry Wall
Products, Inc., 91 N LRB 544, enfd. 188 F.2d 362 (C.A. 3).
' Although the Trial Examiner states that this meeting was attended by
four Gulf Coast employees , Walters, Hutchens , Brogan , and one
unidentified individual , and only one Southern Tours employee , Barfield,
it is clear from the record, as Brogan testified , that there were in fact more
drivers there , including "quite a few" Southern Tours drivers.
8 See The Great Atlantic & Pacific Tea Company, Inc., 144 NLRB
1571, 1573.
8 The Trial Examiner credited Hitchcock 's testimony that "he could
see all of the passengers through his mirror," and that he "did not see
either Shouppe or his son taking any notes " In our opinion it is unlikely
that Hitchcock would be able to notice through his rearview mirror as he
was driving whether Shouppe was taking notes , and we find , therefore,
that this testimony does not establish that Shouppe did not take notes.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of observing whether busdrivers
were properly performing their jobs. Upon arrival
at Clearwater, Shouppe examined Hitchock's
"check-in sheet" and found that the entries did not
coincide with Shouppe's own records. In a discus-
sion with Hitchcock about the matter, it developed
that Hitchcock was at least 25 cents short with
respect to his cash fares and, as Hitchcock ad-
mitted, about $9 to $11 short in his "bank," which
is a fund of $20 given to each driver for the purpose
of making change and which the driver is required
to have on his person at all times. Hitchcock ad-
mitted that his "bank" was short and that this was
a violation of company policy. 10
Shouppe had previously discharged drivers for
discrepancies in their reports and failure to have the
full amount of their "bank" on their persons.
Although reluctant to discharge Hitchcock,
Shouppe told him that he would have to let him go,
but would sleep on it that night and let Hitchcock
know the next day. The next day Shouppe told
Hitchcock that he had no alternative but to release
him as many of the other drivers knew of
Hitchcock's shortages and such discipline was
necessary to maintain control of the newly acquired
business. Under all the circumstances, including the
fact that Hitchcock, who engaged in no union ac-
tivity other than signing a card, thereafter signed the
antiunion petition, we find that the General Counsel
has not established by a preponderance of the
evidence that Hitchcock was discharged for dis-
criminatory reasons.
(b) Barfield: The Respondent claims that Bar-
field was terminated on August 11, 1966, for failing
to report an accident from the scene and for having,
within 6 months, two "chargeable" accidents,
which are accidents for which the Respondent has
to pay damage claims. Barfield's first chargeable ac-
cident, in March 1966, required the Respondent to
pay a damage claim in the amount of $126. On Au-
gust 10, Barfield had his second accident, striking
the rear of an automobile while he was making a
right-hand turn. The Respondent at this time paid
a claim of $56.37 for damage to the automobile, and
$68 in repairs on the bus.
Shouppe testified without contradiction that he
had discharged four other drivers for having two
chargeable accidents. The Trial Examiner, how-
ever, accorded no weight to this testimony as
Shouppe "did not produce any supporting records."
He credited all of Barfield's testimony, including
testimony that Barfield "had never heard of the
10 Although the Respondent contended that one of the reasons for its
discharge of Hitchcock was his failure to produce his "bank" and
Hitchcock admitted that a large part of his "bank" had "disappeared," the
.Tnal Examiner 's Decision makes no reference to the "bank" shortage
ii The Trial Examiner contrasts Shouppe's treatment of Barfield with
the treatment of Fountain , who, the Trial Examiner found , "was finally
discharged as a bus driver because of his many accidents ...." However,
the record shows that Fountain had had only three accidents, over a 3-
year period
discharge of any bus driver merely because he had
had two accidents." The record shows, however,
that Barfield contradicted this assertion at another
point in his testimony when he admitted that he did
know of drivers who had been discharged because
of accidents, and, in fact, named Fountain. t 1
Barfield also named Budda, a two-accident dischar-
gee named by Shouppe. Budda was terminated on
July 20, and Delaney, another employee named by
Shouppe, was terminated on August 31, both
within a month of Barfield's discharge and both, ac-
cording to Shouppe's undisputed testimony, for
having two chargeable accidents.
In addition, the Respondent contends that Bar-
field violated a mandatory company rule by not re-
porting the second accident until he returned to the
terminal at 5 p.m., more than 3 hours after the ac-
cident, which occurred around 1:30 p.m. Barfield
claimed that he was not aware of such a rule at
Southern Tours as he had received no such instruc-
tion while employed there. He admitted, however,
that he had knowledge of the procedure for making
accident reports from the scene through his prior
experience as a driver for almost 16 years with
another company which did require its drivers to re-
port accidents from the scene. Shouppe testified
without contradiction that he had discharged four
other drivers for delays in reporting accidents.
Under all the relevant circumstances, and in the
light of Barfield's limited union activity'12 we are
not convinced that a preponderance of the evidence
shows that Barfield was discharged for discrimina-
tory reasons rather than for the reasons asserted by
the Respondent.
(c) Brogan: The Respondent contends that it
suspended Brogan for 10 days on July 30, 1966, for
failing to stop at the Seminole bus station. There is
no dispute with regard to the facts leading up to
Brogan's suspension. On the previous June 15,
Shouppe had told the drivers that it would be un-
necessary for them to stop at the Seminole station
going south, unless there were passengers or freight
waiting, "until further notice." However, when the
Respondent received complaints about drivers fail-
ing to stop at designated stations, a notice, dated
July 28, was posted on the drivers' bulletin board
stating that "drivers must stop at all designated bus
stops, whether passenger or express." This notice
was signed by the drivers, including Brogan. Yet,
on July 30, 2 days after the notice was posted,
Brogan admittedly failed to stop at the Seminole
station, leaving a passenger waiting at the stop.
11 Although the Trial Examiner' s Decision points out that Shouppe had,
in a conversation with Barfield , referred to Barfield as one of the "instiga-
tors" of the Union , as he also points out, Barfield disputed this charac-
terization of him by Shouppe In any event, the record shows that Bar-
field's only participation in union activities had been to sign a card and at-
tend one meeting
SOUTHERN TOURS, INC.
After both the commissioned agent at the Seminole
station and the passenger left there complained to
the Respondent, it was decided that a 10-day
disciplinary suspension was in order. On the entire
record, we are not convinced that the Respondent's
assigned reason for suspending Brogan was a pre-
text to cover up a discriminatory suspension.
(d) Walters: The Respondent contends that its
suspension of Walters for 5 days was caused by his
failing to stop at the Safety Harbor station on Au-
gust 25, 1966, thus leaving an item of freight there
which he was supposed to pick up and deliver. Wal-
ters testified that he not only stopped at the station,
but that he discharged a passenger, remained at the
stop for approximately a minute, and did not leave
until Gibson, owner of the store which serves as the
designated bus stop in the community, waved him
on. Gibson, on the other hand, testified that he saw
Walters' bus; that he waved for the bus to stop; that
when he saw that it was not stopping, he grabbed
the package and ran out the door to give Walters the
package; but that the bus had already accelerated
and he was unable to signal Walters to stop. Gibson
emphatically denied that the bus stopped and that
any passenger was discharged. Gibson, who was
trying to build up the freight service at his
designated stop, promptly telephoned the Respond-
ent and reported that Walters failed to stop, and
that Gibson had freight to be picked up. A repre-
sentative from the Respondent's Clearwater office
then made a special trip to Safety Harbor so that
the freight could be delivered within a reasonable
time.
The Trial Examiner discredited Gibson on the
ground that Gibson demonstrated a "singularly
poor memory" as he could not remember how many
customers he had in his store at the time of Walters'
arrival, whether his wife was inside or outside the
store, or whether Walters had blown his horn as he
approached the store; and on the further ground
that Gibson contradicted himself by first stating
that Walters did not stop, and later saying Walters
had made a "rolling stop" and pulled to the curb-
side, which the Trial Examiner found hardly possi-
ble "if he were not making a complete stop." As to
the first ground, the record shows that Gibson
merely stated that he was not certain about the
details in question. As to the second, the words
"rolling stop" appear in the record only in a
question put by the Trial Examiner, evidently to in-
dicate "going very slowly" rather than stopping.
There is nothing in the record to indicate that Wal-
ters could not have pulled his bus to the curbside
without making a complete stop. We conclude that
the record shows that the Trial Examiner's findings,
to the effect that Gibson's testimony should be dis-
credited, are erroneous.13
13 As the Trial Examiner discredited Gibson largely upon an ob jective
analysis of his testimony , and not exclusively on his demeanor as a wit-
ness , and as we do not agree , as indicated above, with his conclusions in
367
We find, therefore, upon the entire record, includ-
ing the fact that Walters' only union activity, signing
a card and attending a union meeting, took place
more than 2 months before his suspension, that the
General Counsel has not established that Walters'
5-day suspension was discriminatorily motivated.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent , Southern Tours, Inc.,
and Gulf Coast Motor Lines, Inc., St . Petersburg
and Clearwater , Florida , its officers , agents, succes-
sors, and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order, as
herein modified:
1. Delete paragraphs 1(b) and 2 (b), and reletter
the succeeding paragraphs accordingly.
2. Substitute for paragraph 1(i), to be relettered
paragraph 1(h), the following:
"(h) Discharging or otherwise discriminating
against any employees because of his membership
in or his activities on behalf of Amalgamated
Transit Union Local Division 1326, Amalgamated
Transit Union, AFL-CIO, or any other labor or-
ganization."
3. Substitute for paragraph 2(a) the following:
"(a) Offer to Wayne Hutchens immediate and
full reinstatement to his former or substantially
equivalent position of employment, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may
have suffered by reason of the Respondent's dis-
crimination against him , in the manner set forth in
the section of the Trial Examiner 's Decision enti-
tled "The Remedy."
4. Delete from paragraph 2(e) that part thereof
which reads "on forms furnished " and substitute
therefor "on forms provided...."
5. Delete the second and eleventh indented
paragraphs of the notice to the Trial Examiner's
Decision , and substitute for the eighth and tenth in-
dented paragraphs the following:
WE WILL NOT discharge or otherwise dis-
criminate against any employee because of his
membership in or his activities on behalf of
Amalgamated Transit Union Local Division
1326, Amalgamated Transit Union,
AFL-CIO, or any other labor organization.
WE WILL offer to Wayne Hutchens im-
mediate and full reinstatement to his former or
substantially equivalent position of employ-
ment , without prejudice to his seniority or
regard to Gibson's testimony, we are impelled to substitute our credibility
findings for those of the Trial Examiner Briggs IGA Foodhner, 146
NLRB 443, 445
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other rights and privileges, and make him
whole for any loss of pay he may have suffered
by reason of our discrimination against him.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein.
MEMBER ZAGORIA, dissenting in part:
I agree with the findings that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act, and with the
dismissal of the allegations that the Respondent
promoted the antiunion petition in violation of Sec-
tion 8(a)(1), and that it discharged Hitchcock and
Barfield and suspended Walters and Brogan in
violation of Section 8(a)(3). I would also dismiss the
allegation that Hutchens' discharge was violative of
Section 8(a)(3).
The events leading up to his discharge began
when Hutchens observed a passenger, not
identified in the record, noting the number of his
bus. When Hutchens asked for the reason, the pas-
senger replied that he had noticed Hutchens walked
with a limp, and asked to see Hutchens' ICC cer-
tificate. Hutchens showed it to him, and the pas-
senger completed his trip on Hutchens' bus.
Hutchens told his supervisor about the incident the
following day, and the supervisor related the story
to Shouppe on May 5. That morning, when
Hutchens arrived at work, Shouppe discussed the
matter with him in the light of the Respondent's lia-
bility if Hutchens were involved in an accident, and
Hutchens agreed with Shouppe that under the cir-
cumstances he should have another certification ex-
amination. That afternoon Dr. Clegg14 examined
Hutchens, applying the tests required by ICC regu-
lations to determine whether a driver meets the
minimum qualification for certification as a bus-
driver. Dr. Clegg found that Hutchens had an
absence of a knee jerk in his right leg, and a limita-
tion of motion in his lower limbs. As the ICC regu-
lations specifically require that such defects be ex-
amined carefully to determine whether they would
be "likely to interfere with safe driving," Dr. Clegg
requested that Hutchens come back for further
evaluation on May 9. On this second visit,
Hutchens was examined by Dr. Clegg's physical
therapist. As a result of these tests, Dr. Clegg con-
cluded that Hutchens had "complete paralysis,
atrophy of the quadricepts," [sic] the muscles
which function when one tries to extend his leg, and
that this would affect Hutchens' ability to drive
safely because of the resulting "inability to properly
take the foot off the accelerator and put it on the
brake, and then return it." On May 10, Dr. Clegg
telephoned Shouppe and told him that he could not
certify Hutchens as qualified to drive a common
carrier bus.
The next day Shouppe called Hutchens to his of-
fice, advised him of the doctor's report, and, ac-
cording to Hutchens' testimony, stated that "I had
been disqualified as a driver due to the fact that I
couldn't pass the physical." Hutchens did not
protest this statement as to the result of Dr. Clegg's
report. While he had previously passed examina-
tions given by other doctors, he admitted, in addi-
tion to testifying as noted in footnote 5 of the
majority opinion, that no other doctor had ex-
amined the condition of his right leg for the effect it
had on his ability to drive a bus.15 During this con-
versation, Shouppe agreed to give Hutchens his 2
weeks' vacation pay plus a full week's pay for the
current week although Hutchens had worked only
part of the week. Shouppe and Hutchens also
discussed jobs that might be available for Hutchens
as a mechanic or maintenance man in Clearwater,
where Shouppe had only 13 employees including
the drivers, and other jobs in St. Petersburg where
Shouppe had a larger operation. Hutchens, how-
ever, testified that he told Shouppe he did not feel
qualified to work as a mechanic, was not interested
in maintenance work, and would not work in St.
Petersburg because of the driving distance; St
Petersburg is about 14 miles from Clearwater.
Hutchens did suggest that he was willing to be a
dispatcher, but Shouppe replied that the drivers
dispatched themselves. Shouppe and Hutchens
finally agreed to discuss the matter further at a later
date.
Shouppe was out of town for a few days
thereafter. When he and Hutchens met again on
May 23, he told Hutchens he had no job openings.
It seems apparent, in the light of the May 1 1 con-
versation, that Shouppe was explaining that no job,
such as Hutchens had indicated a willingness to ac-
cept, was available. At this time, Hutchens was ter-
minated and given 2 weeks' terminal pay.
The facts , in sum , show that it was Hutchens who
approached the passenger and initiated the conver-
sation which gave rise to the question about
Hutchens' driving ability because of his limp.
Furthermore, it was Hutchens who reported the in-
cident to his supervisor. When the matter was
brought to his attention, Shouppe discussed it with
Hutchens, who, admittedly aware that as a bus-
driver for a common carrier he was required to meet
the physical standards established by ICC regula-
tions, agreed to another examination. Although
Hutchens had driven a bus for many years, this was
the first time that the Respondent, as the new owner
of the Gulf Coast operation, had Hutchens ex-
" Dr Clegg is a member of the American Association of Automotive
Medicine, is assistant medical director at Sebring Automotive Race
Course, and has performed ICC certification examinations for Southern
Greyhound Line, Inc , as well as for Shouppe 's Southern Tours operation
11 The majonty opinion refers to the fact that Swickheimer, the
Southern Tours terminal manager , who also walked with a limp, drove a
bus occasionally It is clear from the record, however, that not every
driver who limps is disqualified under ICC regulations , but only one found
by an examining doctor to have a leg defect that affects his ability to drive
safely.
SOUTHERN TOURS, INC. 369
amined. Dr. Clegg, a physician of unquestioned
authority in this field, found Hutchens not qualified
"to continue operating a public motor carrier." The
Respondent and Hutchens discussed other jobs
which might be available, but there was no job
available which suited Hutchens.
I am aware that Hutchens was an active union
adherent. Nevertheless, after reviewing the entire
record, I am not convinced that a preponderance of
the evidence shows that he was discharged because
of his union activity rather than because of Dr.
Clegg's report that Hutchens did not meet ICC
requirements.
During the past year, Southern Tours purchased and
received directly from points outside the State of Florida,
goods and materials valued in excess of $30,000.
During the past year, Southern Tours and Gulf Coast,
in the course and conduct of their business operations,
have had a gross revenue in excess of $500,000.
II THE LABOR ORGANIZATION INVOLVED
Amalgamated Transit Union , Local Division 1326,
Amalgamated Transit Union , AFL-CIO, is a labor or-
ganization which has organized employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: This case was
heard by me at Tampa, Florida, on November 16, 17, 18,
and 19, 1966, upon charges filed by the Union against the
Respondent' and a complaint issued by the Regional
Director on October 10, 1966, in which it was alleged
that the Respondent had committed violations of Section
8(a)(1), (3), and (5) of the Act.
Counsel for the General Counsel and for the Respond-
ent waived oral argument at the hearing but subsequent
to the hearing counsel for the Respondent filed a brief
with the Trial Examiner.
Upon the record so made, and, in view of my observa-
tion of the demeanor of the witnesses, I hereby make the
following findings of fact:
1. THE RESPONDENTS
Southern Tours, Inc. (hereinafter referred to as
Southern Tours), is a Florida corporation, which has
maintained its principal office and place of business in St.
Petersburg, Florida, and which has been engaged in the
operation of intrastate transit and sightseeing buses.
Gulf Coast Motor Lines, Inc. (hereinafter referred to
as Gulf Coast), is a Florida corporation, which has main-
tained its principal office and place of business in Clear-
water, Florida, and which has engaged in the operation of
intrastate transit bus service. Gulf Coast is also licensed
by the ICC, however, to operate charter buses in 48
States of the United States.
Since on or about January 1, 1966, Southern Tours and
Gulf Coast have been affiliated businesses with common
officers, ownership, and directors and with a common
labor relations policy, and the two companies have been
operated as a single-integrated enterprise by Byron C.
Shouppe, Sr.,2 who, since the date above mentioned, has
held a majority of the stock in each of the corporations,
and has served as president of each of them. I find that
Southern Tours and Gulf Coast constitute a single em-
ployer for the purposes of the Act.
' In Case 12-CA-3526-2, the original charge was filed on May 23,
1966, and the amended charge was filed on June 17, 1966 In Case
12-CA-3599, the original charge was filed on August 10, 1966, the
amended charge on August 22, 1966, the second amended charge on Au-
gust 26, 1966, and the third amended charge on October 7, 1966
2 Byron C. Shouppe, Sr , has a son , Byron C Shouppe, Jr, who is also
A. Acts of Interference, Restraint, and Coercion
As the end of 1965 was drawing to a close, Shouppe
was the owner of Southern Tours only. This bus company
had been in existence since the early 1920's but it had not
been purchased by Shouppe's father until 1957. When his
father died on December 14, 1960, Shouppe inherited the
business and became its president. In the last week of
1965, however, Shouppe acquired the stock of Gulf
Coast and became the owner also of this second bus com-
pany. But these two bus companies did not represent the
total extent of Shouppe's interests. He also owned the
Yellow Cab Company in St. Petersburg, and this owner-
ship was to have some bearing on the events in the
present proceeding, for the Yellow Cab operation was
run from the same office and terminal as Southern
Tours.3
In addition to Shouppe himself, who appears to have
been in active charge of the business, the supervisory
hierarchy at the time of the acquisition of Gulf Coast in-
cluded one Harold Chick, who was terminal manager.
But Chick was displaced from this post as of May 1,
1966, and Byron C. Shouppe, Jr., the son of Shouppe,
became terminal manager of Gulf Coast. So far as
Southern Tours is concerned, its terminal manager has
been at all material times one Wendell Swickheimer. The
Yellow Cab operation has been supervised by one Phillip
Wegman but during the period prior to December 1965
when Yellow Cab shared the Southern Tours terminal, he
also had a great deal to do with the operation of Southern
Tours. This continued to be the case until Wegman quit
in June 1966, for the evidence shows that until his depar-
ture Wegman acted as Swickheimer's Sunday relief and
took charge of Southern Tours operations at other times
when Swickheimer was not available.
In purchasing Gulf Coast, Shouppe also seems to have
acquired an unresolved labor problem. The Teamsters
had just made an attempt to organize the Gulf Coast bus-
drivers but had not been successful. Having surmounted
this "labor trouble," as Shouppe called it, he realized that
he would have to do something to increase the wages of
his Southern Tours busdrivers. He was paying his Gulf
Coast busdrivers at the rate of $2 an hour but the starting
rate of the Southern Tours busdrivers was only $1.25 an
involved in the present case When reference is made hereinafter to
Shouppe alone, it should be understood as referring to Byron C Shouppe,
Sr
Except for a period from December 1965 to March 1966 when the
Yellow Cab headquarters was moved to 333 Second Avenue South and
Southern Tours temporarily shared its terminal with Greyhound.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour, and even the older Southern Tours busdrivers were
getting no more than $1.50 an hour. In January 1966,
Shouppe attempted to remedy to some extent the dispari-
ty in the wage rates of his two sets of employees. He in-
stituted what he described as a "general" increase in the
wage rates of the Southern Tours busdrivers but actually
he did no more than make minor adjustments in the wage
rates of a few of them. Since he increased the hourly rates
of his two oldest busdrivers who had more than 15 years
of service-their names were Moss and Fountain-to
$1.50 an hour, any increases given to his other Southern
Tours drivers must have been less. That $1.50 an hour
was regarded as high by the Southern Tours busdrivers is
clearly indicated by an incident that occurred in April
1966. A rumor was circulating at this time among the
Southern Tours busdrivers that Shouppe had hired a new
busdriver for Southern Tours whose name was
Fredericks at the rate of $1.50 an hour. Since this was
more than most of the Southern Tours busdrivers were
receiving, despite their greater years of service, three of
them-their names were Giles, Dowd, and Budda-went
to Shouppe and asked him whether the rumor about
Fredericks was true. Shouppe assured them that the
rumor was false, and that he hoped to do something
towards equalizing the pay of the Gulf Coast and
Southern Tours drivers. But actually he had done nothing
further toward accomplishing this objective up to the time
that the campaign of Local 1326 of the Amalgamated had
been launched. Most of the Southern Tours busdrivers
must have been receiving at this time less than $1.50 an
hour.4
The union organizing campaign of Local 1326 had been
launched early in March 1966 by Wayne Hutchens who
had been a Gulf Coast busdriver for approximately 9
years. It could aptly be described as a one-man organizing
campaign. It was Hutchens who took the initiative in con-
tacting Ernest Collette and another representative of
Local 1326 whose name is Dan Marooney. He obtained
from these union representatives some 13 or 14 union
authorization cards. Hutchens himself signed one of them
on March 12, 1966, and passed the others out to various
Clearwater busdrivers, to some of whom he gave self-ad-
dressed envelopes, so that they could mail them in to the
Union's office in Jacksonville, Florida. He also gave
seven or eight of the cards to other busdrivers who got
them signed up. Subsequently, he obtained 15 to 18 more
authorization cards, and obtained signatures to some of
them at the Clearwater bus terminal and at the Derby
Lane Dog Track in St. Petersburg. Hutchens' most nota-
ble accomplishment was perhaps to sign up Harold Chick
on May 1, 1966, the date on which the latter ceased to be
terminal manager.
On May 3, 1966, Collette dispatched a telegram to
Shouppe, in which he claimed to represent a majority of
his bus employees, and requested a meeting for the pur-
pose of collective bargaining. When this was refused, the
Union filed a petition for an election on May 5, and after
the necessary proceedings had been had a Direction of
Election issued and the election was held on July 7, 1966.
The Union prevailed in the election by a vote of 25 to 19,
and on July 15, 1966, the Regional Director certified the
Union as the bargaining representative of all employees
of Gulf Coast and Southern Tours, including ticket
agents, freight employees, drivers, mechanics, bodymen,
cleaners, washboys, and servicemen, who were employed
either at St. Petersburg or Clearwater, but excluding of-
fice clerical employees, guards, and supervisors as
defined in the Act.
In both the preelection period, and in the period follow-
ing the certification of the Union, Shouppe engaged in un-
fair labor practices which were not only flagrant but also
willful. These consisted of repeated violations of Section
8(a)(1) and (3) of the Act and of violation of Section
8(a)(5) of the Act. So far as the violations of Section
8(a)(1) of the Act are concerned, the acts forming the
basis of the violations are not even denied. There were in-
volved in these violations not only Shouppe himself but
his son, Byron C. Shouppe, Jr., and Wendell
Swickheimer, the terminal manager at St. Petersburg.
Shouppe's son and Swickheimer were not even called as
witnesses to deny the words and actions attributed to
them by the General Counsel's witnesses, and, while
Shouppe was called as a witness, counsel for the Re-
spondent did not put any questions to him about his
numerous acts of interference, restraint, and coercion,
except those relating to the discriminatory discharges or
suspensions with which he was charged. Thus, except
as to these discriminations in tenure of employment, the
whole case against the Respondent stands undenied.
Even these denials cannot be accepted, however, since
Shouppe was shown to be a witness wholly unworthy of
credit. His testimony must be rejected except when it
is consistent with the testimony of the General Coun-
sel's witnesses.
As is so frequently the case, when employers are
questioned concerning their knowledge of union activity,
Shouppe maintained that it was not until he had received
Collette's telegram of May 3 that he learned that the
Union was seeking to organize his busdrivers. In fact, the
probability is very strong that he knew almost immediate-
ly what was afoot, since Hutchens' soliciting activities
were conducted in the bus terminals. In any event, it is
positively established that he knew toward the end of
April that the Union was attempting to organize his bus-
drivers. He then had a conversation with Claude
Hitchcock, one of the Gulf Coast busdrivers, in the
drivers' room at the Clearwater terminal, in which he
sought to pump the latter about the activities of the
Union. Shouppe asked Hitchcock who was behind the
union drive, and intimated that he would like "to get this
thing squashed." Hitchcock was naturally reluctant to
reveal who-to use Shouppe's own words-"was causing
all this trouble" but he did finally remark that it must be
Wayne Hutchens who was responsible for it. It is ap-
parent from Hitchcock's testimony that in revealing
Hutchens' name, he believed that he was not imparting to
Shouppe any information which he did not already have.5
The first organized and overt effort made by Shouppe
to stop the union drive occurred, after due preparations,
in the early hours of May 9, which was a Monday, and it
consisted of a meeting with Southern Tours busdrivers at
the St. Petersburg terminal. It is evident that Shouppe
wished to disguise this meeting as a spontaneous effort
sponsored by two of the busdrivers, who were opposed to
the Union, and whose names were Larry Grunewald and
Vic Fountain.6 It is apparent, however, that if Grunewald
" Of the three Southern Tours busdrivers who testified at the hearing,
Giles was paid at the rate of $1 25 an hour, Dowd at the rate of $1 35 an
hour, and Barfield also at the rate of $1 35 an hour
5 Thus, in testifying about this interview, Hitchcock mused of course,
I think at that time, Mr Shouppe knew the whole situation, I don't know."
6 Fountain is Shouppe's oldest busdriver, having been in his service for
at least 25 years
SOUTHERN TOURS. INC.
and Fountain did indeed originate the idea of holding this
meeting, it had Shouppe's full support, for it was held in
his own office at the St. Petersburg terminal, and his su-
pervisors assisted the ostensible sponsors in making the
arrangements for the meeting.7 The meeting, which began
at 7.30 a.m., so that it could be concluded before the
drivers present had to leave on their scheduled runs," and
which lasted not more than 45 minutes, was opened by
Grunewald, who stated his opposition to the Union. Gru-
newald soon had to leave the meeting, however, to begin
his scheduled run, and Fountain then took over and made
some remarks about the Union in the course of which he
asked the drivers to vote against it in the election. The
meeting was then addressed by Shouppe, who was
present with his son, Byron C. Shouppe, Jr., and
Swickheimer. In substance, what Shouppe told the
Southern Tours drivers was that he had been working on
pay raises for them, which he was not going to reveal to
them but that he had decided, despite the advice of his
lawyers, to tell them about these pay raises now, although
he could do nothing about putting them into effect until
the union business was squelched He then proceeded to
outline the nature of the pay raises which he had in mind-
new drivers would be started at $1.35 rather than $1.25
an hour, and would get $1.50 an hour after 30 days, and
thereafter there would be increases of 10 cents an hour
per year until a maximum of $2 an hour was reached.
Shouppe's revelations of his intentions aroused an enthu-
siastic response among the drivers at the meeting who
began to bombard Shouppe with questions as to how the
new pay schedule would affect them
A meeting similar to the morning meeting on May 9
was held for the nighttime drivers that same day, and
while there is no detailed testimony concerning what
Shouppe said at this nighttime meeting, he admitted that
basically he made the same remarks as at the morning
meeting. There is also some evidence that Shouppe men-
tioned at the morning meeting a new insurance plan and
a new sick leave policy which was posted on the terminal
bulletin board the following day. But this evidence is ex-
tremely vague and confused. The insurance plan and the
sick leave policy may have been one and the same, and in
any event the change in the sick leave policy may have
occurred prior to the appearance of the Union on the
scene, and the notice concerning it may have been posted
on the bulletin board a considerable time before the meet-
ing of May 9. There is no basis, therefore, for finding any
violation, so far as these matters are concerned.
Shouppe also sought to reinforce what he had said at
the May 9 meetings in a series of conversations which he
had with Robert C. Giles, one of the Southern Tours bus-
drivers who quit his job toward the end of May 1966. On
May 11, as Giles came to check in on a run, Shouppe
called him into his office, and asked him what the drivers
thought of his wage proposal. Giles told Shouppe that the
drivers thought his wage proposal was very good, and the
latter explained that he could do nothing until after the
union petition had been withdrawn, and urged Giles to
talk to the other drivers. Shouppe made the same sug-
' Thus, Robert C Giles, one of the busdnvers, who was present at the
meeting , testified that he was asked to attend it by Philip Wegman, who
was Swickheimer's Sunday relief, and Carlton C Barfield, another one of
the busdnvers who was present at the meeting , testified that Swickheimer
himself told him about the meeting on Saturday, May 7
e In addition to Grunewald , Fountain , Giles, and Barfield , two other
drivers , whose names are Robert C Dowd and Nolan Burgess, were
present at the meeting
371
gestion to Giles some days later when he drove up in his
car to the Gray Line bus station at 100 Central Avenue
in St Petersburg Shouppe kept making the same sug-
gestion to Giles in at least two subsequent encounters.
Shouppe's next step in his campaign against the Union
assumed the familiar form of promoting and supporting a
petition to withdraw the petition for an election which had
been filed by the Union with the Board It is Shouppe's
position that this antipetition, which is dated at St Peters-
burg on May 18, 1966, was wholly the inspiration of one
of the busdrivers, Walter Bouvier, and that neither he nor
any of his supervisors had anything to do with it. Shouppe
would concede no more than-and this most
grudgingly-that on some date unknown he became
aware of the existence of the antipetition The evidence
shows, however, that if Bouvier actually originated the
antipetrtion,' Shouppe and his supervisors became aware
of it almost immediately, and, far from interfering with his
activities, gave him their complete and wholehearted sup-
port Bouvier obtained signatures of the busdrivers to the
antipetition in both the St. Petersburg and Clearwater ter-
minals, and made a great show of pretending that
Shouppe knew nothing about the antipetition, which was
entirely his own idea, and that the latter would indeed fire
him if he found out that he was away from his own ter-
minal Bouvier even told Richard Brogan, one of the Gulf
Coast busdrivers, whom he was soliciting to sign the an-
tipetition on May 21, that if the Union came in he, Bouvi-
er, would be the first to go. In fact, Bouvier had had no
difficulty in getting someone to relieve him on this occa-
sion, so that he could bring the petition over to Clear-
water. When he told Barfield, in soliciting the latter to
sign the antipetition, that if he signed it, they would get
their pay raises, it must be assumed that Bouvier knew
what he was talking about. The fiction of Shouppe's
neutrality, so far as the antipetition is concerned, was
finally exploded by Wegman who testified that once on
the intercom he heard Bouvier tell Swickheimer who had
and who had not signed the antipetition. Wegman also
testified that on another occasion he discussed Barfield
with Swickheimer as the instigator of the Union because
Barfield would not sign the antipetition. Wegman offered
to go along with Barfield on one of his sightseeing trips, in
order to find out why the latter would not sign the peti-
tion. When Swickheimer consulted Shouppe about this,
the latter vetoed the idea, however. Ultimately, Bouvier
succeeded in inducing Barfield to sign the anti petition. 11
A few days after Brogan had been solicited by Bouvier
to sign the antipetition Shouppe called Brogan into his of-
fice while the latter was having his lunch break. Shouppe
told Brogan that he would like to talk to him for a few
minutes but the ensuing conversation, at which Shouppe,
Jr , was also present, lasted more than a half hour.
Shouppe asked Brogan to tell him about the union activi-
ties that were going on but Brogan pointed out that he had
been on vacation for 2 weeks, and that he could give him,
therefore, only what would be hearsay. Shouppe then
asked Brogan if he had heard of any gripes among the
busdrivers, and Brogan then proceeded to unburden him-
0 It was not possible to explore this interesting question because Bouvi-
er was never produced by the Respondent as a witness
10 Bouvier obtained, in all, 38 signatures to the antipetition As there
were only 52 employees in the bargaining unit, and the Union won the
election by a vote of 25 to 19, it is evident that many of the employees
signed the antipetition only to play safe Another one of the prounion em-
nloyees who signed the antipetition was Claude Hitchcock
310-541 0 - 70 - 25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self about these gripes, including his own. He complained
}hat Shouppe had taken away their sick pay, that he was
paying the busdrivers to the racetrack for only 4 hours,
although they were actually occupied for 6 to 8 hours, and
that on occasion he himself had been compelled to drive
faulty equipment. Brogan also speculated that the up-
surge of union activity could be attributable to these con-
ditions. Before he left Shouppe remarked to Brogan:
"You probably heard through other drivers in St. Peters-
burg that I'm a regular louse, and you boys here
probably got the same impression." This led Brogan to re-
mark: "Well, one of your boys was over here the other
day with a petition for us to sign stating that we didn't
want the union and I refused to sign it." The rest of the
conversation about the antipetition is best told in
Brogan's own words, which were as follows:
He asked me who it was and I said that it was Walter
Bouvier, and he looked at Byron for possibly a few
minutes or a few seconds and acted like he didn't
know who it was, and then he says, "Oh, yes, I re-
member who Bouvier is now, we do have an em-
ployee by the name of Bouvier, don't we, Byron?"
He asked Mr. Byron Shouppe, Jr., and Byron, Jr.
says yes. Bouvier was one of the men who was
against Mr. Shouppe all the time and all of a sudden
he brings in a petition and that's why I couldn't un-
derstand why he done this.
On June 15, 1966, Shouppe held a meeting in his office
at the Clearwater bus terminal with the Gulf Coast em-
ployees. This meeting was similar to the meeting of May
9 with the Southern Tours busdrivers but there was some
difference in the arrangements The June 15 meeting at
Clearwater included two of the baggage room employees,
and was an evening meeting which began about 8:15 p.m.
and ended about 10 p.m On this occasion, Shouppe also
appears to have made no effort to get any of the em-
ployees to sponsor the meeting The testimony of two of
the busdrivers who attended the meeting, James W. Wal-
ters and Richard Brogan, shows that they were directly
approached by either Shouppe or his son. In the morning
of June 15, Shouppe told Walters about the meeting that
evening, and suggested that he come with his speaking
cap on because he figured that Walters would have a lot
to say. As for Brogan, June 15 happened to be his day off,
but Shouppe's son called him at his home and invited him
to attend that evening what he described as "a friendly
drivers' meeting "
The accounts given by Walters and Brogan of what
Shouppe said at the June 15 meeting are in close agree-
ment. Shouppe opened the meeting with the statement
that he knew that the meeting would be regarded as illegal
by the National Labor Relations Board but that he would
hold it anyway. He went on to say that he wanted to lay
his cards on the table, and the employees to lay their
cards on the table and call a spade a spade; he operated
his other companies, Southern Tours and Yellow Cabs
"on a big family policy," and he wanted to operate Gulf
Coast "on a big family policy." Shouppe then outlined the
plans which he was making for Gulf Coast-he was
planning to acquire 10 new buses which a representative
of his had spotted in Washington, D.C., and to give the
Gulf Coast employees life insurance policies, like those
which were put into effect several years ago at Southern
Tours and Yellow Cabs. Shouppe declared, however, be-
11 This account of what occurred at the June 15 meeting is based
primarily on the testimony of Walters The testimony of Brogan shows
that Shouppe also discussed at the meeting and sought to justify his
fore "he could do anything" that the union activities
would have to cease; that the busdrivers had "started this
thing and could put a stop to it"; that all they had to do
was to notify the NLRB that they wanted to withdraw the
charges. Shouppe also asked the employees what they
knew about the Union, and who had started it. When no
one answered, Shouppe turned to Walters and remarked:
"Well, Walters, I know that you know something about
the union, you were seen having coffee with Ernie Col-
lette?" To this, Walters replied that he would have coffee
with any of his friends if he had the time. Shouppe then
asked if Walters knew of a union meeting that was coming
up on the following Monday, and Walters told Shouppe
that he had heard about such a meeting. There then en-
sued a discussion of "gripes and grievances." There was
a complaint that the busdrivers involved in the New Port
Richey schedule had to drive 25 miles every morning in
their own cars to start the run, and there was also a com-
plaint that there was a safety hazard involved in making
a stop at the Seminole bus station going south from Clear-
water to St. Petersburg (because it was necessary to cross
the highway to the bus terminal). Shouppe immediately
agreed that the New Port Richey run would originate in
and finish in Clearwater (the change was put into effect
the following morning), and also that the busdrivers, until
further notice, need not make a full stop at the Seminole
station going south, it would be sufficient for them to slow
up and determine whether any passengers were waiting
to be picked up. The elimination of these grievances was
accompanied, however, by a warning, which Shouppe is-
sued, that if by going union the employees expected to get
$3 or $3.50 an hour "to forget it" because he would be
able to pay that much for only 3 or 4 months before he
went broke, and that they would also lose their charter
work because they would be in competition with
Greyhound."
The union meeting about which Shouppe asked Wal-
ters during the June 15 meeting was actually held on the
following Monday, June 20, at the Toffenetti Hotel in St.
Petersburg. There were four Gulf Coast employees
present at this union meeting; i.e., Walters, Hutchens,
Brogan, and one other whose identity is not established.
But the only Southern Tours employee who was present
at this union meeting was Barfield. The Shouppe forces
continued to show a lively interest in the union meeting of
June 20.
As Barfield came in to work on June 21, and walked
through the front door of the St. Petersburg terminal, he
encountered Swickheimer, who asked him "how was the
meeting last night." Barfield replied: "I don't know, I
didn't go." Swickheimer persisted, however. "Well, I
know you went," he said, "because we rode, I rode by
and saw your car parked besides the Toffenetti Hotel on
Second Street and First Avenue north between 10 and II
o'clock." Barfield then admitted that he had been at the
union meeting but claimed that he had gone only "to see
what was going on," and that only about four people had
been there when he had arrived. Swickheimer then re-
marked: "I know there was four drivers from Gulf Coast
Motor Lines and you were the only one from Southern
Tours." Barfield agreed that Swickheimer's information
was correct.
Brogan, too, was questioned about the union meeting
of June 20 the day after it had been held but the interroga-
discharges of the employees, who had claimed, apparently, that their
discharges were discriminatory.
SOUTHERN TOURS, INC. 373
tor was Shouppe, Jr., and the place of the interrogation
was outside the latter 's office at the Clearwater bus ter-
minal . Shouppe, Jr., also asked how the union meeting
had gone but the reply that he received from Brogan was
that it had been like any other union meeting, and that
quite a few of the Southern Tours busdrivers had been
there, although he did not know them very well . Shouppe,
Jr., then asked Brogan why he thought that they should
have a union , and invited Walters [ sic] into his office to
discuss this question . In the ensuing conversation, as an
example of conditions which made a union necessary,
Brogan related to Shouppe, Jr., how he had recently been
compelled to drive a bus which had a dead battery. When
Brogan finally left Shouppe , Jr.'s office to prepare his bus
for its run, the latter followed him out, got on the bus with
him, and asked Brogan if he thought that Gulf Coast was
big enough to support a union . Brogan replied that he was
ignorant of the financial status of the company , and then
Shouppe, Jr., asked Brogan how he was going to vote in
the election . Brogan replied that he would not answer that
question because if he answered yes, his job would not be
worth 2 cents, and if he answered no, Shouppe, Jr., would
tell everybody to vote as Brogan would . Brogan added,
however , that he would go along with whatever the other
busdrivers wanted , so far as a union was concerned.
Shouppe did not cease his interrogation of employees
even after the union had won the election of July 7. Again
he singled out Barfield , whom he interrogated twice, the
first time about a week after the election and the second
time on August 9. The first interrogation took place in
Shouppe's private office at the St. Petersburg terminal.
Shouppe opened up with : "You seem to be a spokesman
for this union , so I want to tell you about what I'm going
to do." Shouppe proceeded to outline all the runs he in-
tended to discontinue because he was losing money on
them , and remarked : "Now, you can tell Collette what I
intend to do " Barfield declared : "All right , I will."
The second interrogation took place in the outer office
at the St. Petersburg terminal . Barfield had been assigned
to a city sightseeing run but it had just been canceled and
he was waiting for his wife to pick him up. Shouppe ap-
proached Barfield and remarked that business was kind
of bad and that the airline strike had not helped any. Bar-
field agreed that this was so . Shouppe then asked Barfield
when the next union meeting would be held, and Barfield
replied : "Well, I think it's Monday but you should
know." Shouppe countered with the remark that Barfield
should know everything about the Union , since he was
one of the instigators . When Barfield denied this,
Shouppe insisted that Collette told him everything. When
Barfield also denied this, and asserted that he obtained his
information from Walters or Hutchens , Shouppe accused
Barfield of lying, and suggested that he quit because he
was not happy where he was, and because he had not
been happy at Greyhound . When Barfield denied any un-
happiness , Shouppe asked him how old he was, and when
Barfield said that he was 54 years old, Shouppe re-
marked: "You're kind of old to be getting smart now."
Barfield replied : "No, I can learn something new every
day." As Shouppe was remarking that he would furlough
everybody and close up for about 3 months, the telephone
rang, and the interrogation ended when Shouppe went to
answer it. In the meantime, Barfield ' s wife had arrived in
their car to pick him up.
Since the evidence shows that Shouppe was perfectly
aware that what he was doing to combat the Union was
unlawful , it would seem hardly necessary to comment on
the precise ways in which he violated Section 8(a)(1) of
the Act. It is plain that he and his subordinates ran almost
the whole gamut of the familiar unfair labor practices
which are prohibited by this provision of the Act. They
included sweeping interrogations of employees concern-
ing their union activities -the extent of their support of
the Union, their meetings , their leaders , and how they in-
tended to vote in the election ; attempts to secure
withdrawals from the Union by supporting and promoting
an antiunion petition and by other illegitimate means;
promises of pay raises and other benefits conditioned on
withdrawal from the Union, and the termination of union
activities ; correcting grievances in order to induce
withdrawals from the Union; creating the impression of
surveillance of union activities; actual spying on union ac-
tivities; and threatening to eliminate available work and
to furlough or discharge employees.
B. The Discriminatory Discharges and Suspensions
1. In general
Between May 23 and August 25, 1966 , Shouppe either
discharged or temporarily suspended five of his bus-
drivers. Wayne Hutchens , Claude Hitchcock , and Carl-
ton C. Barfield were discharged on May 23, July 13, and
August 11, 1966, respectively , while Richard Brogan was
suspended for 10 days on July 30 , 1966, and James Wal-
ters was suspended for 5 days on August 25, 1966. It
should hardly occasion surprise that Wayne Hutchens
should prove to be the first to go and that those who fol-
lowed him also turned out to be the victims of Shouppe's
antiunion campaign , for they had been either directly in-
terrogated concerning union activities by either Shouppe
or his son (in this category fall Hitchcock , Brogan, Wal-
ters, and Barfield), or had been mentioned as the union in-
stigators in the course of the interrogations (in this
category fall Hutchens and Walters), or they had been
directly observed by Swickheimer in attendance at the
union meeting of June 20 at the Toffenetti Hotel while he
was spying on the meeting (in this category fall Hutchens,
Walters, Brogan , and Barfield ). Hitchcock alone had the
embarrassing experience of having been directly asked by
Shouppe whether he had signed a union card , a question
he had answered in the affirmative . Hitchcock had previ-
ously signed Bouvier's antipetition but by affixing his
signature to the union card, he had displayed his duplici-
ty, and thus sealed his doom . Another one of the five,
Barfield, had also signed Bouvier's antipetition , but, un-
fortunately for him , he had been seen subsequently at the
union meeting at the Toffenetti Hotel , and 2 days before
his discharge he had been accused by Shouppe of being
one of the union instigators.
There can be no question but that Hutchens,
Hitchcock , Barfield , Walters, and Brogan were outstand-
ing union supporters . There can be equally no question
but that Shouppe was perfectly well aware of their union
activities. In view of this knowledge, and of the further
undoubted fact that Shouppe was engaged in a strenuous
antiunion campaign , a strong inference arises that the
discharges and suspensions for which he was responsible
were not free of union animus and that the reasons ad-
vanced by him in justification of his actions were mere
pretexts.
This inference is rendered all the stronger in view of the
still further fact that all five of the drivers, whom he either
discharged or suspended , except perhaps Barfield, had
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long years of service. Hutchens had been a Gulf Coast
driver for 9 years, Hitchcock for 24 years, and Walters
and Brogan for over 7 years. Even Barfield, the only
Southern Tours driver to be discharged, had been em-
ployed for over 4 years. Despite their long years of ser-
vice, Shouppe merely waited until plausible pretexts for
penalizing them should present themselves. In the case of
Hutchens, moreover, when a pretext was lacking, it was,
apparently, made.
2. The discharge of Hutchens
On a day late in April Hutchens was on a night run
from Tampa to Clearwater. Upon arriving at the Trail-
ways bus station, which was one of his stops, Hutchens
went into the baggage room to check on freight. As he
came back to his bus, he noticed a person whom he did
not know taking down the number of his bus. When
Hutchens asked this person what the trouble was, the
latter explained that he had noticed that Hutchens walked
with a limp, and asked Hutchens for his doctor's cer-
tificate. Hutchens exhibited it to him, explaining at the
same time that his limp was the result of an attack of polio
when he was a 2-year-old child. The unknown person re-
marked on how amazing it was that Hutchens should be
able to drive a bus, but quite plainly he was not a fearful
person, for he rode Hutchens' bus all the way to Clear-
water, which was its last stop. Hutchens did not ask his
mysterious challenger for his name because he assumed
that he must be one of Shouppe's checkers.' 2 But the next
day or the day after he related the incident to Harold
Chick, who was still the Gulf Coast terminal manager,
and Chick in turn mentioned to Shouppe Hutchens' en-
counter with the mysterious stranger.
It was not, however, until Hutchens came in to work
the morning of May 5 that he was questioned about the
encounter by Shouppe himself, who called him into his of-
fice for that purpose. Hutchens told Shouppe that he
thought that he had been challenged by one of the Com-
pany's checkers, but Shouppe made no comment on
Hutchens' observation. Shouppe did state, however, that
since Hutchens' doctor's certificate had been challenged,
he thought that it would be a good idea to have Hutchens
take another physical examination, and to this Hutchens
agreed, although his doctor's certificate would remain
'valid until November 1966. Hutchens did express some
concern as to what his position would be if he could not
pass the proposed physical but Shouppe told him not to
worry, that if he did not pass it, he would try to find him
another job, that "he still had a job, one way or the other,
either way it went, in Clearwater" [emphasis supplied].
It seems that a busdriver is presently required to take
a physical once every 3 years, and to obtain a doctor's
certificate. In the course of his 9 years' employment with
Gulf Coast, Hutchens had had three such physicals, the
last one occurring in November 1963, after which he was
issued a doctor's certificate by a Dr. J. V. Freeman. Be-
fore coming to Gulf Coast, moreover, Hutchens had
worked as a busdriver for a period of 10 years for the
Citizens Rapid Transit Company of Hampden, West Vir-
ginia. During this 10-year period, he had had physicals
every 2 years, and he had never been refused a doctor's
certificate, despite his obvious limp.
On the same day as his interview with Hutchens,
Shouppe personally made arrangements to have him
given a physical examination by a Dr. Frederick Lee
Clegg, who had been examining Southern Tours drivers
for him for about 3 years. Dr. Clegg was aware that
Hutchens was not coming in for just a routine physical,
for Shouppe had told the doctor that Hutchens' right to
drive had been challenged by a passenger. Hutchens ar-
rived in Dr. Clegg's office in the late afternoon of May
5, being driven there by Don Nelson, the comptroller of
Southern Tours. In the course of the medical examina-
tion, Hutchens explained to Dr. Clegg the origin of his
limp, and the doctor tested Hutchens' knee reflexes, and
found the reflex in the right knee to be defective. He said
nothing to Hutchens, except that he would have to wait
for the laboratory report before he could issue a cer-
tificate but he then called Shouppe and told the latter that
in view of his findings, he would like to have Hutchens
reexamined.
Hutchens worked on Friday, May 6, and on Sunday,
May 8 (the intervening Saturday was his day off),
because arrangements could not be made immediately to
have him reexamined. On Monday, May 9, he was in-
structed to report, however, to Dr. Clegg's office again.
This time he was transported to Dr. Clegg's office by
Shouppe, Jr. After Hutchens' arrival in Dr. Clegg's of-
fice, he was sent upstairs to an office in the same building
where he was examined by a female physical therapist,
whose name is Pearl Brockman, and who, in the course of
her examination, which included an examination of his
back muscles, asked Hutchens to extend his right leg in
a horizontal position. This Hutchens was unable to do
because of the impairment of his right thigh and leg
muscles by the polio. When Hutchens returned to Dr.
Clegg's office, Dr. Clegg also asked him to extend his legs
in a horizontal position, which again, he could not do. Dr.
Clegg then told Hutchens that if he were ever involved in
an accident, his leg "wouldn't stand up in court." Dr.
Clegg decided that Hutchens was not qualified to operate
a public motor carrier, and expressed his findings in the
following certificate:
May 16, 1966
Southern Tours Bus Company
Re: Wayne Hutchins [sic]
A further evaluation of Wayne Hutchins' [sic] right
leg was made by the Physical Therapy Department.
He has had a residual weakness, atrophy of some of
the muscles of the right thigh and leg. He has
developed a good pattern of substitution with strong
muscles to take over for the weaker affected group.
The right quadriceps can set and sustain for a straight
leg lift but with no resistance. On the 90 degree bend
and extend, he cannot move his lower leg at all into
any extension. On the deep squat, he initiates with
his hand to get a rising start then his extensors take
over and he is up. The abductors and adductors are
very strong. Inward rotators are very strong, out-
ward only fair. Gastrocnemius very strong, dorsiflex-
ion only fair plus peroneals are good.
Hip flexors on the right are good. On the third pull
well, the others only fibrillate. Upper abdominals
12 Shouppe employed checkers, whose duty it was to ride his buses, and
check on the honesty, courtesy, and efficiency of his busdrivers The
latter did not know the identity of the checkers, and, therefore, had no way
of knowing when they were being checked
SOUTHERN TOURS, INC. 375
only fair . Shoulders and arms exceptionally strong.
Lower abdominals are good. Hamstrings very
strong . Hip extensors very strong.
Mr. Hutchins [sic] has apparently been driving a
commercial vehicle for approximately 19 years and
has been medically certified to drive. He has learned
to rotate the foot between the accelerator and brake
pedal. He can lift his right leg off the floor but by
using the muscles of the thigh in effect substitution.
He walks with an obvious limp, has shortening of the
leg. He can apparently drive a passenger bus well if
he is adjusted to a proper height . However , because
of the inability to extend the right lower leg from a 90
degree bend, and because of the inability to properly
employ the right leg without the substitution pattern,
it is the final opinion that Mr. Hutchins [sic] could
not be qualified to continue operating a public motor
carrier.
FLC:cm
Shouppe attempted to pass the challenger off as a pas-
senger on the bus but this seems most improbable. An or-
dinary passenger would not have carried his conversation
with Hutchens beyond the point of commenting on his
limp. He would certainly not have demanded to see
Hutchens' doctor's certificate. Thus, there is left only the
possibility that Hutchens' challenger was one of
Shouppe's own checkers, who had either been dispatched
for the very purpose of making the challenge, or who hap-
pened to observe Hutchens' limp while checking on his
run in the ordinary course of his duties. It is significant
that when Hutchens told Shouppe that he thought that he
had been challenged by one of the Company's checkers
Shouppe did not contradict him.
If the mysterious challenger was in fact one of
Shouppe's checkers-after all, all the checkers were men
of mystery -the true motive of Hutchens' termination is
apparent. But, even if such a conclusion be regarded as
uncertain, there is still ample evidence that, in terminating
Hutchens, Shouppe was getting rid of his chief union tor-
Frederick L. Clegg, M.D. mentor. It was not a mere coincidence that he did so at
Shouppe did not, however, await the arrival of Dr.
Clegg's report before breaking the bad news to Hutchens.
When Hutchens arrived at the Clearwater terminal on
May 11, he was called into Shouppe's office, where he
also found Shouppe, Jr., and Nelson. Shouppe told
Hutchens that he had been found disqualified to drive
because he could not extend his legs in a horizontal posi-
tion, and that if he ever had an accident, and the case
came before a jury, the jury would ask him to stick his
legs out, and the Company would be held liable for all the
damages. Shouppe even asked Hutchens how he would
feel if his children were on a bus with a driver in the same
position as he was and when Hutchens remained silent,
Shouppe made the further remark that, frankly, he would
not ride around the block with Hutchens. When
Hutchens then reminded Shouppe about the job he was
supposed to have in Clearwater, Shouppe told him that he
had no opening in Clearwater at that time , and suggested
that he take a week off to look around for another job.
Hutchens had hoped that he could work in the baggage
room at Clearwater or be a ticket agent there but when he
found that his hopes were being dashed he asked for 2
weeks' vacation pay to which he felt he was entitled,
since he had been compelled to spend so much time in
taking the physicals. Shouppe did mention the possibility
of an opening in St. Petersburg but Hutchens felt that this
was too far away from his home. Hutchens had a final in-
terview with Shouppe on May 23 in the course of which
Shouppe told Hutchens that he had no opening for him in
either Clearwater or St. Petersburg, and gave him 2
weeks' pay.
Shouppe's actions with reference to Hutchens cannot
withstand analysis . Indeed , his attempt to justify the
discharge of Hutchens harbors many elements which are
absurd, or which strain credulity. To begin with, there is
the story of the mysterious stranger who supposedly set
in motion the events leading to Hutchens' discharge.
Conceivably, Hutchens' challenger could have been an
ICC or a State utilities commission inspector. But
Shouppe himself testified that he instituted inquiries to
determine who it was that had accosted Hutchens and
that he ascertained that this individual was neither a
Federal nor a State inspector . Indeed , if he were an in-
spector, he almost certainly would have been heard from.
the very time when the campaign to get the antipetition
signed up was at its height.
There can be no doubt that despite his infirmity
Hutchens was perfectly able to drive a bus. He had
demonstrated his ability in 10 years' continuous service
with one bus company, and 9 years' continuous service
with another bus company. During his 9 years of service
with Gulf Coast he had never had a single chargeable ac-
cident; i.e., one in which he was considered to be at fault.
Although his quadriceps muscle was impaired, he had
developed a strong substitute muscular pattern that en-
abled him to raise his foot sufficiently to rotate it between
the accelerator and the break pedal.
When Shouppe appeared for examination by Dr. Clegg,
he must have been previously examined by quite a suc-
cession of doctors, not a single one of whom had
disqualified him from driving a bus. He had at least one
strike on him, however, when he was sent to Dr. Clegg
because of the very fact of the challenge, the nature of
which was communicated to the doctor prior to his ex-
amination of Hutchens. Yet the reluctance of Dr. Clegg
to disqualify Hutchens is apparent from his certificate as
well as from his testimony at the hearing. This reluctance
stemmed from the fact that quite obviously Hutchens had
a splendid driving record, and that he had made a re-
markable adjustment to the condition caused by his in-
firmity. In disqualifying Hutchens after two examina-
tions, the second of which, significantly, showed, really,
no more than the first, Dr. Clegg disqualified him for
being unable to do what he did not have to do to drive a
bus; i.e., extend his right leg horizontally.
It is quite evident also that there was no real apprehen-
sion on the part of either Shouppe or anyone else about
Hutchens' ability to drive a bus. The mysterious chal-
lenger himself had not hastened to disembark from
Hutchens' bus when he discovered that he limped but
rode on all the way to Clearwater, which was the last
stop. That Shouppe himself had no apprehension is even
plainer. Although the incident of the challenge had oc-
curred in the latter part of April, and Shouppe learned of
it a day or two later, he did not call Hutchens into his of-
fice to question him about it until May 5. Even after this
interrogation Hutchens was permitted to perform his or-
dinary duties as a busdriver through May 8. This conduct
of Shouppe cannot be reconciled with his cruel remark to
Hutchens that he would not even drive around the block
with him.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In fact, the incident of the challenge had really changed
nothing. The mysterious challenger had not been heard
from, and there was nothing to show that he would ever
be heard from again. Hutchens had a valid and still out-
standing doctor's certificate, so that the legality of his
continuing to drive could not be questioned. Instead of
awaiting developments, Shouppe sprang into action,
behaving as if he had first heard of Hutchens' infirmity,
and a crisis had been suddenly precipitated. But
Shouppe's own testimony shows that he knew about
Hutchens' infirmity from the very moment that he took
over the Gulf Coast line. Toward the end of December
1965, Shouppe had been introduced to Hutchens by Fred
Thompson, the outgoing general manager of Gulf Coast.
Noticing Hutchens' limp, Shouppe had asked Thompson
whether he was qualified to drive, and had been assured
by Thompson that he was qualified. Shouppe did not
question this for over 4 months.
It is also quite evident that the fear of what a jury might
do in case Hutchens were involved in an accident could
not have been a shattering discovery. In testifying about
various accidents at the hearing, Shouppe showed quite
plainly that he had an acutely developed consciousness of
the dangers of incurring legal liability. But, despite these
dangers, which existed all through the months that
Hutchens drove a bus for him, he considered them quite
tolerable. The appearance of the mysterious challenger
neither reduced nor magnified the dangers. Shouppe at-
tempted, to be sure, to give some semblance of rationality
to his decision to subject Hutchens to another physical
examination before his doctor's certificate expired by ex-
plaining that he felt that the imaginary jury would be less
likely to mulct him in damages if he had had Hutchens ex-
amined by a second doctor. But even a second doctor
could not confer immunity from damages, for the conduct
of a jury is unpredictable with any degree of assurance,
and, in any event, Hutchens in the course of the years had
already been examined by a whole succession of doctors,
who had found him fit to drive a bus. There is, moreover,
an item of evidence which shows quite plainly that
Shouppe was not really given to worrying about what an
imaginary jury would do to him if there were an accident.
It was shown that although Swickheimer was the
Southern Tours terminal manager, he occasionally drove
a bus himself. But Swickheimer, too, had a limp, and wore
a brace on one of his legs. Yet his condition did not lead
Shouppe to worry about what a jury would do if
Swickheimer became involved in an accident.
Finally, Shouppe's true motive in terminating
Hutchens is revealed by the callous manner in which he
treated him after he had decided that he should not drive
a bus any longer. In view of Hutchens' long years of ser-
vice, it would normally be expected that he would exert
himself to the utmost to find some other job for him in
Clearwater, as he had indeed promised to do. After the
promise had achieved its purpose, however, by getting
Hutchens to submit to the physical examination by Dr.
Clegg, it is apparent that Shouppe decided that there
would be no point in keeping it.
3. The discharge of Hitchcock
On July 13, 1966, Claude Hitchcock had a most
unusual experience on his return trip from St. Petersburg
to Clearwater. Shouppe and his son boarded his bus at
Third Street in St. Petersburg. This was the first time that
they had ever been on his bus. According to the
testimony of Shouppe, he and his son had left their cars in
Clearwater and were going to pick them up, and, as soon
as they had boarded the bus, Shouppe said to his son:
"Byron, we might as well make a record of what's going
on," so that they would not be wasting their time while
riding the bus. He then took a pad out of his briefcase,
and during the trip he jotted down the number of passen-
gers who were on the bus when they boarded it, and the
number of passengers who boarded the bus, or, who got
off the bus during the remainder of the trip. However, ac-
cording to the testimony of Hitchcock, who could see all
of the passengers through his mirror, neither Shouppe nor
his son kept any record during the trip. When the bus
finally arrived at Clearwater, the Shouppes waited for
Hitchcock to fill out his check-in sheet, and, as he was
leaving the terminal, they accosted him and told him that
his tally of passengers did not agree with theirs. Shouppe
said something about a lady who had left the bus at the
lighthouse and accused Hitchcock of being two bits short
in his fares. This puzzled Hitchcock, since he had had no
25-cent fares during the trip, and the fare of the lady who
had left the bus at the lighthouse was 40 cents. Hitchcock
was so disturbed by Shouppe's accusation that he made
no effort to determine whether there was in fact a
shortage, and at the hearing Shouppe produced no notes,
and admitted that he did not know to what extent
Hitchcock's receipts were short. In these circumstances,
I fully credit the testimony of Hitchcock that he did not
see either Shouppe or his son taking any notes.
Moreover, Shouppe did not immediately discharge
Hitchcock but told him that he would like to sleep on his
decision. The following morning Shouppe, Jr., called
Hitchcock at his home, and instructed him to bring in his
clippers and his badge. Upon his arrival at the terminal,
Shouppe gave Hitchcock his week's pay and his vacation
pay and discharged him. He thus terminated the services
of a 24-year old employee because he was, allegedly, 25
cents short in his receipts.
It seems so obvious that Hitchcock's discharge was
discriminatory that further commentary is hardly neces-
sary. Whether or not the Shouppes really had to go per-
sonally to Clearwater to pick up their cars-it certainly
seems strange that the owner of two bus companies, as
well as a taxi company, had to go himself to Clearwater to
pick up his car- it is evident that the primary purpose of
the trip was to keep Hitchcock under surveillance and to
get rid of him if possible. How determined Shouppe was
to accomplish this objective that very day must be ap-
parent from the fact that he himself was willing to act as
a checker and that he discharged Hitchcock on the basis
of a trivial discrepancy in the fares -if indeed there was
a discrepancy. In his testimony, Shouppe even attempted
to maintain that there was no difference between a
shortage of 25 cents, which could be due to error, and a
shortage of $25 which would obviously be due to the
driver's dishonesty. In fact, it was quite common for the
drivers to be a little short in their receipts or a little over.
In either case, the necessary adjustment was made, and
no one ever thought of firing the busdriver. Shouppe men-
tioned the cases of several busdrivers who had recently
been discharged for discrepancies in their fares but their
defalcations were not shown to be comparable.' 3 It is,
" In the one specific case mentioned by Shouppe, the driver pocketed
$22.50 on the single day that he was being watched by a checker.
SOUTHERN TOURS , INC. 377
moreover , extremely unlikely - and even this is an un-
derstatement - that Hitchcock would be stealing when he
knew that his employer was on the bus.
If there could be said to be any vestige of a doubt con-
cerning Shouppe's real motive in taking the trip on
Hitchcock ' s bus, it is dissipated by the fact that Shouppe
was willing to take the allegedly dishonest Hitchcock
back into his service . When shortly before the hearing,
Hitchcock encountered Shouppe, Jr., and told the latter
that he would like to have his job back , Shouppe, Jr.,
declared that he and his father would like to see him back
and proceeded to speak to his father about putting
Hitchcock back to work . The elder Shouppe told his son
"Fine, hire him back ." Indeed , Shouppe called Hitchcock
"a fine man." But , in the end , the project of rehabilitating
Hitchcock foundered on Shouppe 's refusal to give him
backpay, and post the necessary notice.
4. The suspension of Brogan
On July 30 , 1966, as Brogan was getting ready to take
the 1 p . m. run to St Petersburg , Shouppe, Jr., called him
into his office, where he asked Brogan whether he had
stopped at the Seminole bus station on his 9:30 a.m. run
out of Clearwater that day. Brogan admitted that he had
not stopped at the Seminole station but explained to
Shouppe, Jr., that at the June 15 meeting with the bus-
drivers, his father had told them that they did not have to
stop at the Seminole station until further notice. Shouppe,
Jr., then pointed out to Brogan that he had initialed a
notice which had been posted on the bulletin board and in
which it had been stated that drivers had to stop at all sta-
tions, whether passenger or express . A notice to this ef-
fect had been posted on April 23 and on July 28, 1966.
Brogan had initialed both of these notices but he informed
Shouppe, Jr., that he had checked with Dixon, the second
oldest busdriver , who had told him that he had not been
stopping at the Seminole station since the June 15 meet-
ing. Shouppe , Jr., countered by telling Brogan that Wal-
ters was stopping at the Seminole station . This led Brogan
to remark that Walters had told him that he was stopping
at the Seminole station because he was afraid to take any
chances, that he would not even take off his hat for 5
minutes. Notwithstanding Brogan ' s explanations,
Shouppe , Jr., told him that he would have to suspend him
for 10 days because he had left a lady standing inside the
Seminole station , and she had had to spend $3.60 on a
taxi to take her to her destination . Shouppe, Jr., also de-
manded that Brogan pay this $3.60 taxi fare, and the
latter did so then and there. Before Brogan left , he asked
Shouppe, Jr., who would take his 1:10 run , since it was al-
ready close to that time , and Shouppe, Jr., informed
Brogan that arrangements had already been made to have
another busdriver take over that run.
When Shouppe took over Gulf Coast , there had been
no Seminole stop . The station there was first established
in January 1966 but it had no separate passenger waiting
room . It was simply a store known as H & L Electronics,
which sold television sets principally. Brogan correctly
described the Seminole station as "more or less a flag
stop." The reason that had led Shouppe to grant the
dispensation about not stopping at the Seminole station
was that a bus making the southbound run would have to
turn against traffic , which involved a hazard , and it would
take a long time before the busdriver could get back on
the road. Although Brogan had not stopped at the
Seminole station during the 9 : 30 a.m . run on July 30, he
had slowed down as he approached the station and looked
to see whether there were any passengers or freight See-
ing none- Brogan , indeed, described the Seminole station
as deserted - he continued on his way.
Because the Seminole station was so new, it had taken
Brogan a considerable time to get accustomed to making
a stop there. Harold Chick, who was then Brogan 's super-
visor, would ask him why he had not picked up freight at
the Seminole station , and Brogan would reply "Chick, I
forgot all about it , the station is brand new to me, I'll try
to remember the next time." Brogan finally got into the
habit of pulling across the street , blowing his horn, and
waiting to be waved on his way. There was also another
driver by the name of Daniels who would go past the
Seminole station without stopping. But neither Daniels or
Brogan or any other driver had been suspended or other-
wise disciplined for failing to stop at the Seminole station.
It seems evident that Brogan was suspended on July 30
in order to penalize him for his union activities. Shouppe
himself testified that he participated in the decision to
suspend Brogan but he did not explain in what manner he
had participated . It is safe to assume , however, that he
gave his approval to the suspension in advance , for ar-
rangements had been made to have another driver take
over Brogan 's run before Shouppe, Jr., could even talk to
Brogan . When Shouppe, Jr., asked Brogan whether he
had stopped at the Seminole station on the day in
question , he was not really engaging in any purposeful
inquiry. The fact that Brogan was condemned without a
hearing is itself an indication of a vengeful purpose. An
even plainer indication is the fact that Brogan was
suspended although Shouppe had told the busdrivers that
they need not stop at the Seminole station until further
notice, and then posted a notice, which did not specifi-
cally refer to the Seminole station , but could be used to
penalize any busdriver who failed to stop there. Clearly,
the situation created by the specific oral dispensation, fol-
lowed by the general notice, was extremely ambiguous
and confusing . This was, however, its utility, and Brogan
became the first driver to be suspended for misinterpret-
ing the situation.
5. The discharge of Barfield
On August 10, 1966 , Barfield drove a bus chartered by
a Peace Corps group for a trip from St Petersburg to
Tampa. During this trip , he was involved in a minor ac-
cident about 1.40 p.m . As he approached the intersection
of Nebraska Avenue and 26th Street North in Tampa, he
swung his bus a little to the left , as he usually did, to make
a right hand turn . While he was making the turn , a young
woman driving a Ford Falcon came up on his right and a
slight collision occurred which resulted in a scratch on the
right front door of the bus and a scratch on the left rear
fender of the Ford Falcon . At Barfield's request, the
leader of the Peace Corps group called the police to re-
port the accident . But Barfield himself did not report the
accident to Swickheimer until after he had arrived in St.
Petersburg between 5 and 5:30 p. m. He then obtained an
accident report form from Swickheimer and asked the ter-
minal manager whether he could take the form home with
him, and fill it out there, since it was already late and he
would have to take out another chartered bus at 7 a.m. the
next morning Swickheimer agreed that Barfield could
take the form home, and bring it when he reported to
work the next morning . When Barfield left home the next
morning, however , he forgot to take the form with him.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He remedied his forgetfulness, therefore, by getting in
touch with his wife and asking her to bring the report in to
the terminal. When Barfield came off his run at or about
noon, he secured the report from his wife, and went to
turn it in. Swickheimer was not in at the time, however,
and Barfield left the report on his desk and asked the Yel-
low Cab manager to call Swickheimer's attention to it.
Barfield then went home. At or about 5 p.m , he received
a telephone call from Swickheimer who told him that
Shouppe wished to see him. Barfield came down to the
terminal, arriving about 5:45 p.m., and had an interview
with Shouppe during which Shouppe!, Jr., and
Swickheimer were also present. Shouppe upbraided Bar-
field for failing to call in the accident immediately, assert-
ing that he was required by a standing rule of the Com-
pany to do so. Barfield pointed out that no such rule had
ever been posted on the bulletin board, and that the bus-
drivers had no book of rules. Shouppe brushed this con-
tention aside, however, and said to Barfield- "Anyway,
this is your second chargeable offense." Barfield asked.
"You mean the one in Bartow?" Shouppe answered this
question in the affirmative, and told Barfield that he
would have to let him go. When Barfield began arguing
that neither of his accidents had been chargeable,
Shouppe walked out on him, remarking that he did not
wish to hear anymore. During the whole interview,
Swickheimer, who had given Barfield permission to make
a report on the accident the next day, did not come to
Barfield's defense. Indeed, he said not a word
When Barfield had also driven the bus involved in the
accident on August 11, some of his fellow drivers who
had seen the bus told him that it had already been
scratched before the accident occurred. Shouppe, who
was self-insured up to $10,000, paid $56.37 to the owner
of the Ford Falcon, and incurred an expense of $68 to
repair the bus. So far as the previous Bartow accident is
concerned, it had occurred in March 1966, and had in-
volved only a broken headlight, which had been replaced
at a cost of $126. In the case of the Bartow accident, Bar-
field had also failed to report it from the scene but he had
not even been reprimanded Although he had been cited
to appear in court, the case had been thrown out.
The mere recital of the circumstances relating to Bar-
field's discharge is sufficient to demonstrate that it was
not due to either of the reasons advanced by Shouppe but
to the fact that Barfield had made himself persona non
grata by reason of his union activity By failing to call
Swickheimer as a witness, Shouppe in effect confessed
his guilt. Since Swickheimer had not made an issue of
Barfield's failure to report the accident, and had not repri-
manded him in anyway, it is apparent that he had been
overruled by Shouppe, who had, apparently, decided to
seize upon the accident to get rid of one of the leading
union adherents I credit the testimony of Barfield in its
entirety, which includes the assertion that he had never
heard of the discharge of any busdriver merely because
he had had two accidents. Shouppe made the contrary as-
sertion but, while he mentioned names, he did not
produce any supporting records and even testified falsely
that no records were kept of nonchargeable accidents. I
also accept the testimony of Wegman that he knew of no
fixed policy as to how many accidents a driver must have
had before he would be discharged. In fact, there had
been a high degree of tolerance on Shouppe's part, so far
as minor accidents were concerned. One has but to con-
trast his treatment of Barfield with his treatment of Vic
Fountain, whom he used as a front for the May 9 meet-
ing. Although Fountain was finally discharged as a bus-
driver because of his many accidents, which appear to
have been due to his defective eyesight, Shouppe allowed
him to drive one of his Yellow cabs, and, subsequently,
after his vision had been corrected by eyeglasses, reem-
ployed him as a Southern Tours busdriver.
6. The suspension of Walters
The case of Walters is very similiar to that of Brogan,
for Walters, too, was suspended for failing to stop at a bus
station. The name of the bus station in the case of Walters
was the Safety Harbor bus station, and it resembled the
Seminole bus station in many ways. The Safety Harbor
station was also in a store known as the Gibson Garden
Mart, which was owned by one Keith B. Gibson, who
sold plants, shrubs, and fertilizers. Gibson also acted,
however, as the Gulf Coast agent at Safety Harbor.
There was, of course, no waiting room at Safety Harbor;
the Gibson Garden Mart itself was the waiting room. The
store was about 40-feet deep with a window on the street
which was very wide, and along which automobiles were
sometimes parked. When a bus stopped at the station, it
did so at the street curb.
On August 25, 1966, Walters was on the 9:45 run from
Tampa to Clearwater. At 10:35 a.m. he reached Safety
Harbor, and stopped his bus. He discharged a passenger
and blew his horn, whereupon Gibson, who was standing
toward the back of the store, waved him on - this was the
usual signal when the agent had nothing for the bus-
driver-and Walters continued on his way to Clearwater.
Upon his arrival in Clearwater about 10:55 a.m.,
Shouppe called him into his office, and accused him of
running past the Safety Harbor station without stopping
to pick up a parcel that had been left there. Walters de-
nied that he had not stopped; indeed he told Shouppe that
he must be "kidding " Nevertheless, Shouppe suspended
Walters for 5 days, effective immediately That same day
Walters telephoned to Gibson, the agent at Safety Har-
bor, and told the latter that he had been suspended by
Shouppe for running past the Safety Harbor bus station
without stopping Gibson told Walters that he had already
heard about his suspension and admitted that it was he
who had called Shouppe and told the latter that Walters
had failed to pick up a package at the station. Gibson de-
nied to Walters, however, that he had told Shouppe that
he had failed to stop at the station.
The Respondent called Gibson as a witness to con-
tradict the testimony of Walters that he did stop at Safety
Harbor, that he had disembarked a passenger; and
received a signal from Gibson to go on. Gibson's story
was that on the morning in question, he had been talking
to one Pat Willis, a sales representative of Alley
Southeast Corporation, about the advantages of shipping
by bus, and that shortly before Walters was due to arrive
at the Safety Harbor bus station, Willis had left with him
a 10-pound package of staples to be shipped by Gulf
Coast. Because of his sales talk to Willis, he was eager to
have the parcel go out by the next bus. But Walters failed
to stop at the station and drove away, despite the fact that
he was coming up from the back to the front of the store,
and was waving to Walters to stop. Greatly chagrined, he
hastened to call Chick to tell him what had happened.
Gibson proved to be, however, an extremely unreliable
witness. He demonstrated a singularly poor memory for
any detail that was not part of his prepared story, a
frequent characteristic of untruthful witnesses, and even
SOUTHERN TOURS. INC.
contradicted himself on the main items of his testimony.
Thus, he could not remember how many customers he
had in the store at the time of Walters' arrival, whether his
wife was inside or outside of the store, or even whether
Walters had blown his horn when he arrived at the sta-
tion, although this would be a very crucial part of his
testimony. He seemed to think that he had called Chick
to tell him what had happened, although Walters himself
had testified that Gibson had called Shouppe. Even more
significantly, he contradicted himself on the main item of
his testimony, which was whether Walters had brought
his bus to a complete stop when he arrived at the Safety
Harbor station. Gibson first testified that as he seized the
Willis parcel, which was lying on the counter about 8 feet
from the door of the store, and walked toward the door,
he noticed the front end of Walters' bus coming up, and
began waving to him to stop but by this time he had al-
ready pushed his gas pedal and was accelerating down the
street. But during his cross-examination, he had Walters'
bus rolling up to the store, gliding up to the store, and
crawling up to the store, and admitted that Walters had
made what could be called "a rolling stop." Gibson finally
betrayed the whole truth when he replied to a question
whether there had been any cars parked in front of his
store, by testifying that this could not be true "because he
(Walters) pulled to the curbside" [emphasis supplied].
Walters could hardly have pulled his bus to the curbside
if he were not making a complete stop.
The evidence justifies the conclusion that Gibson's
story was fabricated as a means of penalizing another one
of the union leaders, and this conclusion is reinforced by
the evidence relating to the other discharges and suspen-
sions, and the failure to call Chick as a witness, although
he was the one to whom Gibson thought he had made his
report. Moreover, although Shouppe was a witness, and
testified in detail concerning all the other discharges and
suspensions, he was not invited to testify with respect to
the circumstances of Walters' suspension, except that he
was asked whether he had any knowledge concerning
Walters' union activities, and whether these activities had
anything to do with his suspension It is difficult indeed to
believe that Walters, with Brogan's suspension still fresh
in mind, would have risked breezing by the Safety Harbor
bus station. During the period of more than 7 years that
he had been a bus driver, Walters had never failed to pick
up a piece of freight, and he would have chosen the worst
of all possible times to fail to do so on August 25, 1966.
C The Failure of Collective Bargaining
Having been certified, on July 15, 1966, as the collec-
tive-bargaining representative of the Respondent's em-
ployees, Richard H. Frank, the Union's attorney, sent a
telegram to Shouppe, requesting a meeting for the pur-
pose of collective bargaining, and an immediate reply to
his telegram. As a result of the dispatch of the telegram a
bargaining session was arranged for the morning of Au-
gust 16 in Shouppe's Yellow Cab office in St. Petersburg.
A second bargaining session occurred also the morning of
August 17 at the same place. Collette alone represented
14 On August 16 or 17, Shouppe interrogated Walters about the
proposed union contract, calling the latter into his Clearwater office for
this purpose Walters told Shouppe that the proposed union contract had
been read at the last union meeting Shouppe then asked Walters whether
he was satisfied with the contract, and Walters replied that no contract,
which would satisfy everyone 100 percent , could be written Shouppe
then asked Walters whether he had voted for the contract , and the latter
379
the Union at the August 16 session but at the August 17
meeting he was accompanied by another union represent-
ative by the name of Jim Crowder. The Respondents
were represented at both meetings by Shouppe, his son,
Swickheimer, and Don Nelson. At both meetings, how-
ever, the dialogue appears to have been entirely between
Collette and Shouppe. The first meeting did not last more
than 2 hours at the most, and the second meeting did not
last more than 15 to 30 minutes.
At the opening of the August 16 meeting Collette
handed to Shouppe a proposed union contract, together
with a covering letter, in which Collette had stated that
the proposed contract had been accepted "by a majority
vote of the members of both companies." Collette at-
tempted to get Shouppe to discuss the cases of the em-
ployees who had been discharged but Shouppe declined
to do so. Collette then proposed that they discuss the
Union's contract proposal, which covered 57 pages in
double-spaced type, although some of the pages were vir-
tually blank. Reading the statement in Collette's letter to
the effect that the Union's proposal had been approved
by a majority of the employees, Shouppe denounced this
as a lie, stating that he knew how many employees had
been at the union meeting at which the contract proposal
had been approved, and implying that they were few in
number.14 Shouppe also asked Collette how many of the
union members were paying their dues and expressed
doubt that the union represented a majority of the em-
ployees. Collette told Shouppe, however, that this was
none of his business. Shouppe then brought up the
question of eliminating some of his runs, which were, al-
legedly, unprofitable, and suggested that the Union agree
to eliminating them. But Collette took the position that he
had no knowledge of the Company's financial condition,
and that he therefore could not agree to this; he pointed
out that, in any event, this problem was covered in the
Union's proposed contract, and requested that the parties
begin discussing the contract itself. Shouppe would not
agree to do so, however, and demanded that the Union
agree to allow him 60 days to study the contract on the
ground that he was unfamiliar with labor contracts, and
wished to discuss the contract with his attorney. Collette
would not agree to this, and suggested that they recess
until the following morning The meeting on August 17
was simply a repetition of the August 16 meeting. After
the meeting of August 17, the Union bombarded
Shouppe with a series of telegrams in which meetings
were requested for the purpose of collective bargaining
but they elicited no favorable response from Shouppe.
It is apparent that Shouppe had no intention of ever
bargaining with the Union in good faith. He exhibited this
lack of good faith by questioning the Union's majority at
the meeting of August 16 and by continuing to commit
still other unfair labor practices. He further demonstrated
his bad faith by demanding 60 days to study the Union's
proposed contract. Collective bargaining is not so leisure-
ly a process. While the Board has held that an employer
is entitled to a reasonable time to examine a union's
proposed contract, I" the period of 60 days demanded by
Shouppe was clearly unreasonable. It is evident that his
replied in the affirmative At this point in the conversation Walters had to
excuse himself to take his scheduled run
Is This proposition is established by the two cases cited in the posthear-
ing brief filed by counsel for the Respondent , i e , Mrs Nail's Bakery, 44
NLRB 1099, 1108 , and Cookv:He Shirt Company, 79 NLRB 667, 671,
but what is a reasonable time must be determined in the light of the cir-
cumstances of each individual case
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand, when viewed in the light of his total conduct,
was only a delaying tactic to enable him to attempt to dis-
sipate the Union's majority.
IV. THE REMEDY
As the scope of the unfair labor practices of the
Respondent is quite extensive, I shall recommend a broad
form of cease-and-desist order, designed not only to
prevent the repetition of the specific unfair labor prac-
tices in which they have engaged but also to effectuate all
the guarantees of Section 7 of the Act.
As affirmative relief, I shall recommend that the
Respondent offer to Claude Hitchcock and Carlton C.
Barfield immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, dismissing, if
necessary, any employees who may have been hired to
replace them. I shall further recommend that each of
them be made whole for any loss of pay he may have suf-
fered by reason of the discrimination against him by pay-
ment to him of a sum of money equal to the amount which
he normally would have earned as wages from the date of
his discharge to the date of the offer of reinstatement
made by the Respondent.
Special provisions are necessary to effect the reinstate-
ment, with backpay, of Wayne Hutchens, since it is ap-
parent that he no longer has a valid doctor's certificate,
his last one having expired in November 1966. 1 shall
recommend, therefore, that arrangements be made to
have Hutchens examined by a doctor selected by the Re-
spondent and the Union. In the event that the Respondent
and the Union are unable to agree on a doctor, he
shall be selected by the Regional Director. The fee and
the expenses of the doctor shall be paid, however, by the
Respondent. If Hutchens obtains a doctor's cei tificate,
he shall be immediately reinstated to his former position
as a busdriver and shall receive backpay in the same
manner and to the extent as Hitchcock and Barfield. If
Hutchens fails to obtain a doctor's certificate, however,
the Respondent shall offer him employment as a freight
agent or ticket agent in Clearwater, Florida, dismissing,
if necessary, any employee who may have been hired in
either of these capacities since May 1966, the last day
that Hutchens worked as a busdriver. If employment in
either of these capacities is not available at Clearwater,
and Hutchens does not wish to accept any other employ-
ment with the Respondent , the obligation of the Respond-
ent to make Hutchens whole shall not cease but shall
continue until he has obtained suitable employment with
another employer.
The amount of backpay due to each of the discrimina-
torily discharged employees is to be computed on a quar-
terly basis in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, and interest
shall be computed on the amount so determined in ac-
cordance with Isis Plumbing & Heating Co., 138 NLRB
716.
I shall also recommend that the Respondent make
whole Richard Brogan and James A. Walters for the
amount of pay which each of them lost during the period
of his suspension by the Respondent, and that in the case
of Brogan he shall also be reimbursed for the $3.60 taxi
fare which he was required to pay. To the amount due to
each of them shall be added interest at the rate of 6 per-
cent per annum.
I shall recommend, finally, that upon request of the
Union the Respondent shall bargain collectively in good
faith with the Union as the exclusive representative of the
employees in the bargaining unit hereinafter described as
appropriate and embody in a signed agreement any un-
derstanding which may be reached.
CONCLUSIONS OF LAW
1. The Respondents , Southern Tours, Inc., and Gulf
Coast Motor Lines, Inc., are employers engaged in com-
merce or in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Transit Union Local Division 1326,
Amalgamated Transit Union , AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities; by attempting to induce withdrawals from the
Union by promoting and supporting an antiunion petition
being circulated among their employees; by soliciting em-
ployees to persuade fellow employees to withdraw from
support of the union ; by announcing proposed wage in-
creases to employees and by promising and conferring
other benefits , such as life insurance, conditioned on
withdrawal of support for the Union ; by removing or cor-
recting grievances of employees in order to induce them
to withdraw their support of the Union , by threatening to
curtail work opportunities and to furlough or discharge
employees in order to discourage union activities; by
creating among the employees the impression that their
union activities were under surveillance ; and by actually
spying on a union meeting of employees , the Respondent
has interfered with , restrained , and coerced its employees
in the exercise of the rights guaranteed to them by Section
7 of the Act, and has thereby committed unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By terminating the employment of Wayne
Hutchens , Claude Hitchcock , and Carlton C. Barfield on
May 23, July 14 , and August 11, 1966, respectively, and
by refusing to reinstate them thereafter to their former or
substantially equivalent positions of employment because
they had joined or assisted the Union or engaged in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , the Respondent has dis-
criminated with respect to the tenure of employment of
these employees , and has thereby committed unfair labor
practices affecting commerce within the meaning of Sec-
tion 8 (a)(3) and ( 1) of the Act.
5. By suspending Richard Brogan from his employ-
ment on July 30 , 1966, for a period of 10 days therefrom,
and by suspending James W. Walters from his employ-
ment on August 25, 1966, for a period of 5 days
therefrom because these employees had joined or assisted
the Union, or engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection , the Respondent has discriminated with respect to
the tenure of employment of these employees , and has
thereby committed unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and ( 1) of the
Act.
6. All employees of Southern Tours, Inc., and of Gulf
Coast Motor Lines, Inc., including ticket agents, freight
employees, drivers, mechanics , bodymen , cleaners,
washboys , and servicemen employed at the St . Peters-
burg and Clearwater, Florida, operations of the Respond-
ent, but excluding all office clerical employees , guards,
and supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
SOUTHERN TOURS, INC.
7. On July 7, 1966, the majority of the employees of
the Respondent in the unit described above, in a secret-
ballot election conducted under the supervision of the Re-
gional Director for Region 12 of the National Labor Rela-
tions Board, designated and selected the Union as their
representative for the purpose of collective bargaining
with the Respondent, and on July 15, 1966, the National
Labor Relations Board certified the Union as the collec-
tive-bargaining representative of the employees in the
said unit.
8. At all times since July 15, 1966, the Union has been
the representative for the purpose of collective bargaining
of the employees in the unit described above, and, by vir-
tue of Section 9(a) of the Act, has been and is now, the ex-
clusive representative of all the employees in the said unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
9. At all times since July 25, 1966, the Union has con-
tinued to request the Respondent to bargain collectively
with it with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
as the exclusive collective-bargaining representative of all
the employees in the unit described above.
10. By failing or refusing, at all times since July 25,
1966, to bargain collectively with the Union in good faith
as the exclusive representative of all the employees in the
unit described above, the Respondent has committed an
unfair labor practice affecting commerce within the mean-
ing of Section 8(a)(5) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and, pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondents, Southern
Tours, Inc., and Gulf Coast Motor Lines, Inc., their of-
ficers, agents, successor, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees coercively concerning
their union activities.
(b) Attempting to induce withdrawals from the Union
by promoting or supporting any antiunion petitions.
(c) Soliciting employees to persuade fellow employees
to withdraw their support from the Union.
(d) Announcing proposed wage increases to em-
ployees conditioned upon withdrawal of their support
from the Union.
(e) Promising or conferring any other benefits, such as
life insurance, upon employees, upon condition that they
withdraw their support from the Union.
(f) Removing or correcting grievances of employees in
order to induce them to withdraw their support from the
Union.
(g) Threatening to curtail work opportunities and to
furlough or discharge employees, in order to discourage
union activities.
(h) Creating among the employees the impression that
their union activities are under surveillance, or actually
spying on the union meetings of their employees.
16 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
381
(i) Discouraging membership in Amalgamated Transit
Union Local Division 1326 , Amalgamated Transit
Union , AFL-CIO, or any other labor organization of
their employees , by discharging or suspending em-
ployees, or discriminating in any other manner against
them with respect to the tenure of their employment.
(j) Failing or-refusing -to bargain collectively in good
faith with the Union with respect to rates of pay, wages,
hours of employment , or any other term or condition of
employment in the bargaining unit hereinbefore described
as appropriate.
(k) In any other manner interfering with, restraining,
or coercing their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act:
(a) Offer to Wayne Hutchens , Claude Hitchcock, and
Carlton C. Barfield immediate and full reinstatement to
their former or substantially equivalent positions of em-
ployment , without prejudice to their seniority or other
rights and privileges and make each of them whole for any
loss of pay he may have suffered by reason of the dis-
crimination of the Respondent against them in the manner
and to the extent set forth in the section of this Decision
entitled "The Remedy."
(b) Make whole Richard Brogan and James W. Wal-
ters for the amount of pay which each of them lost during
the period of his suspension, and in the case of Brogan
also reimburse him for the $3.60 taxi fare which he was
required to pay in the manner and to the extent set forth
in section IV of this Decision entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze and compute the amount of
backpay due under the terms of this Recommended
Order.
(d) Upon request , bargain collectively with Amalga-
mated Transit Union Local Division 1326 , Amalgamated
Transit Union , AFL-CIO, as the exclusive representa-
tive of the employees in the appropriate unit described
above , with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment , and em-
body in a signed agreement any understanding reached.
(e) Post at its St. Petersburg and Clearwater , Florida,
terminals, copies of the attached notice marked "Appen-
dix."16 Copies of said notice, on forms furnished by the
Regional Director for Region 12, shall , after being duly
signed by an authorized representative of the Respond-
ent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from receipt of this Recommended
Order , what steps it has taken to comply herewith. 17
11 In the event that this Recommended Order is adopted by the Boaid,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT interrogate our employees coercive-
ly concerning their union activities.
WE WILL NOT attempt to induce withdrawals from
the Union by promoting or supporting any antiunion
petitions.
WE WILL NOT solicit employees to persuade fellow
employees to withdraw their support from the
Union.
WE WILL NOT announce proposed wage increases
to our employees or promise to confer or confer any
other benefits , such as life insurance, upon them,
upon condition that they withdraw their support from
the Union.
WE WILL NOT remove or correct grievances of our
employees in order to induce them to withdraw their
support from the Union , in order to discourage union
activities.
WE WILL NOT threaten to curtail the work oppor-
tunities of our employees or to furlough or discharge
our employees.
WE WILL NOT attempt to create among our em-
ployees the impression that their union activities are
under surveillance , or actually spy on the union ac-
tivities of our employees.
WE WILL NOT discourage membership in Amalga-
mated Transit Union Local Division 1326 , Amalga-
mated Transit Union , AFL-CIO, or any other labor
organization of our employees , by discharging or
suspending employees , or discriminating in any other
manner against them with respect to the tenure of
their employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist
the above -named or any other labor organization, to
bargain collectively through representatives of their
own choosing , or to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities.
WE WILL offer to Wayne Hutchens , Claude
Hitchcock , and Carlton C. Barfield immediate and
full reinstatement to their former or substantially
equivalent positions of employment, without preju-
dice to their seniority or other rights and privileges
and WE WILL make them whole for any loss of pay
which they may have suffered by reason of our dis-
crimination against them.
WE WILL also make whole Richard Brogan and
James W. Walters for the pay lost by them when we
suspended them from our employment on July 30
and August 25, 1966, respectively.
WE WILL also notify our employees that on July
15, 1966, the Board certified the above-named labor
organization as the collective-bargaining representa-
tive of all of our employees, including ticket agents,
freight employees, drivers, mechanics, bodymen,
cleaners, washboys, and servicemen, who were em-
ployed either at St. Petersburg or Clearwater,
Florida, but excluding office clerical employees,
guards and supervisors as defined in the National
Labor Relations Act.
Although the above-named labor organization has
attempted ever since July 25, 1966, to get us to bar-
gain collectively with its representatives in good
faith, we have not done so to date, although we did
attend two meetings with its representatives on Au-
gust 16 and 17, 1966. However, upon the request of
its representatives that we do so, WE WILL resume
negotiations with them, and bargain collectively with
them in good faith as the exclusive representative of
our employees in the bargaining unit with respect to
rates of pay, wages, hours of employment, or any
other term or condition of employment, and WE
WILL embody in a signed agreement any un-
derstandings which may be reached.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named or any other labor organization.
Dated By
SOUTHERN TOURS, INC.,
AND GULF COAST MOTOR
LINES, INC.
(Employers)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 706 Federal
Office Building, 500 Zack Street, Tampa, Florida 33602,
Telephone 228-7711.