Texas Bus Lines, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1985

277 N.L.R.B. 626 (N.L.R.B. 1985)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Bus Lines , Inc. and Teamsters , General Driv-
ers, Warehousemen and Helpers Local Union
No. 968 affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Cases 23-CA-9484
and 23-CA-9643
21 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 5 December 1984 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings, findings, and
conclusions only to the extent consistent with this
decision.
We agree with the judge that the Respondent
violated Section 8(a)(1) by interrogating employees
and encouraging them to form an employee com-
mittee and by soliciting them to disaffiliate with
their exclusive representative.' The judge found,
however, that the Respondent did not violate Sec-
tion 8(a)(2) and (1) of the Act by dominating, inter-
fering with, or rendering unlawful support to a
labor organization. The judge concluded that the
employee-elected 1983 driver committee did not
meet the criteria for a labor organization within the
meaning of Section 2(5) of the Act, and that the
Respondent's recognition of the committee was
limited to "grievance-type" problems that did not
include the substance of wages, hours, and condi-
tions of employment. Finally, the judge found that
the Respondent did not intend to "bestow repre-
sentative status" on the elected committee. There-
fore, the judge dismissed the 8(a)(2) complaint alle-
gation. We reverse.
In August 19832 Regional Vice President Sam
Mayes met and initiated separate conversations
with employee drivers Don Craig, Nelson Gonza-
lez, and Roy Nowlin to discuss electing a drivers'
committee. Mayes told them that other drivers de-
sired a new employee committee, but then asked
i On 23 July 1984, in a second election, after the parties agreed to set
aside the election, Teamsters, General Drivers, Warehousemen and Help-
ers Local Union No 968 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America was
elected as the exclusive representative of all the Respondent's employees
and was certified by the Board
2 All dates are in 1983 unless otherwise stated
Gonzalez and Craig to question the drivers about
their support for a committee election. According
to Craig's uncontroverted testimony, Mayes also
said that he wanted the drivers to elect a new com-
mittee, then go to the Labor Board and retrieve
the Teamsters' representation petition. During their
conversations with Mayes, both Craig and Gonza-
lez objected to having an employee-committee
election. Craig said "he did not think an election
was needed," and Gonzalez stated that an election
would be "illegal.",
Despite these employees' concerns, on 16 August
Mayes held a mandatory meeting for drivers to
elect an employee committee that would be recog-
nized by the Company as the representative of the
drivers. Mayes told the assembled employees that
"it had been brought to his [Mayes] attention that
employees wanted a driver committee to deal with,
to bring their problems to." He also told the em-
ployees that he wanted to have better relations be-
tween drivers and management.
Craig testified that at the meeting he asked
Mayes to recognize the representative (Teamsters)
elected at the union hall. Gonzalez reiterated his
concern that a drivers' committee election would
be "illegal" because the employees had already
chosen the Teamsters as their exclusive representa-
tive. Notwithstanding the employees' objections to
having another election, Mayes instructed each
driver to vote either for or against an employee
committee. Mayes left the meeting room, and five
employee drivers were then selected as committee
members. After returning to the meeting, Mayes
announced his approval of the elected members
and told the drivers that the committee would be a
"go-between" for management and the drivers.
The Respondent met with the committee after
the election to discuss problems such as the charter
board which, according to Mayes' testimony, di-
rectly affects employees' wages; procedures for
employee reprimands; and miss-outs (i.e., tardiness).
When this meeting concluded, the Respondent and
the committee agreed on a charter board proce-
dure, and Mayes agreed to give the drivers ad-
vance notice of reprimands and to allow committee
members to be present with employees at discipli-
nary meetings. They also agreed to meet jointly
each month, but there is no evidence of subsequent
meetings between management and the committee
as a whole.
In fact, the record does not detail the Respond-
ent's relationship with the driver committee after
the initial 16 August meeting when the committee
was first formed. There is evidence only that in
October committee member Craig met with Re-
gional Vice President Mayes on behalf of employee
277 NLRB No. 75
TEXAS BUS LINES
David Smith, who requested an extended leave of
absence. Craig told management that Smith did not
want to lose his seniority and that other employees
had previously been granted extended leave with-
out loss of their seniority. Subsequently, Smith was
granted leave without loss of his seniority. Craig
also testified that he represented employee Bob
Harrington when Harrington sought redress be-
cause Mayes had treated him harshly. According
to Craig's uncontroverted testimony, Mayes apolo-
gized to Harrington at Craig's request.
For a labor organization to come within the
meaning of Section 2(5) it is necessary only that
there be employee participation, and that the orga-
nization exist for the purpose, in whole or part, of
dealing with an employer concerning employees'
grievances, labor disputes, wages, hours, and condi-
tions of employment.3 The 1983 driver committee,
composed of five elected employee members, met
with the Respondent on 16 August to discuss and
deal with the Respondent concerning employees'
grievances, policies affecting employees' wages,
and other terms and conditions of employment.
Committee member Craig subsequently dealt with
the Respondent concerning two separate employee
grievances. Accordingly, contrary to the judge, we
find that the 1983 driver committee is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
Furthermore, we find that the Respondent vio-
lated Section 8(a)(2) by interfering with the forma-
tion and administration of the 1983 driver commit-
tee. The Respondent interfered when it held a man-
datory meeting on 16 August and strongly suggest-
ed (over certain employees' objections) that the
driver committee be established, and then showed
its willingness to bargain with the committee in the
16 August management-committee meeting, and in
its subsequent dealings with a committee member
concerning employee grievances.4
Although the Respondent interfered with the
formation and administration of the 1983 driver
committee, "it does not automatically follow" that
the Respondent unlawfully dominated the commit-
tee in violation of Section 8(a)(2) of the Act.5 The
General Counsel has failed to prove by a prepon-
derance of the evidence that the Respondent con-
trolled and supported the committee and its mem-
bership.' As observed above, the record does not
See NLRB v. Cabot Carbon Co, 360 U.S 203, 210-215 (1959)
See Wheelco Co., 260 NLRB 867 (1982)
Spiegel Trucking Co., 225 NLR13 178, 179 (1976)
Although the Respondent expressed dissatisfaction with one commit-
tee member, the evidence does not show the Respondent attempted to
control committee membership
627
reveal in detail the nature of the relationship be-
tween the Respondent and the committee beyond
the 16 August meeting and a handful of other con-
versations. There is no evidence that the Respond-
ent permitted the committee to use its premises for
meetings, or paid employees for time spent in oper-
ating the organization, or controlled the organiza-
tion by having its own representatives as members.
We find, in the absence of such evidence, that the
Respondent did not unlawfully dominate the 1983
driver committee.7
AMENDED REMEDY
Having found that the Respondent has violated
Section 8(a)(2) and (1) of the Act by interfering
with the formation and administration of a labor
organization, we shall order the Respondent to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. Therefore, we shall order that the Respondent
withdraw and withhold all recognition from the
1983 driver committee unless and until such com-
mittee has been certified by the Board.
ORDER
The National Labor Relations Board orders that
the Respondent, Texas Bus Lines, Inc., Houston,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about their prefer-
ences between an exclusive representative or an
employee committee.
(b) Soliciting employees to disassociate them-
selves from their exclusive representative and to as-
sociate with an employee committee.
(c) Interfering with the formation of, assisting, or
otherwise interfering with the operation and ad-
ministration of the 1983 driver committee, or any
other plant committee or labor organization of its
employees.
(d) Recognizing or in any manner dealing with
the 1983 driver committee, or any reorganization
or successor thereof, as the representative of its
employees for the purpose of dealing with Texas
Bus Lines, Inc. concerning grievances, wages,
hours, and conditions of employment, unless and
until such committee has been certified by the Na-
tional Labor Relations Board as the exclusive rep-
resentative of its employees.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
7 Cf Rennselaer Polytechnic Institute, 219 NLRB 712 (1975); Grafton
Boat Co, 173 NLRB 999, 1002-1003 (1968).
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of their rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes and policies of the
Act.
(a) Withdraw all recognition from the 1983
driver committee as a representative of any of its
employees for the purpose, of collective bargaining,
unless and until it has been certified by the Nation-
al Labor Relations Board as the exclusive repre-
sentative of the Respondent's employees.
(b) Post at its facility located in Houston, Texas,
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 23, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
- IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found herein.
s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
The Act gives employees the following rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate our employees about
their preferences for an exclusive representative or
an employee committee.
WE WILL NOT solicit our employees to disassoci-
ate with their elected exclusive representative or to
associate with any employee committee.
WE WILL NOT interfere in the formation of,
assist, or otherwise interfere with the operation and
administration of the 1983 driver committee, or any
other plant committee or labor organization of our
employees.
WE WILL NOT recognize and bargain with the
1983 driver committee, or any reorganization or
successor thereof, as the representative of our em-
ployees for the purpose of dealing with us concern-
ing grievances, labor disputes, wages, hours, and
conditions of employment , unless and until such
committee has been certified by the National Labor
Relations Board as the exclusive representative of
our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL withdraw and withhold all recognition
from the 1983 driver committee as the representa-
tive of our employees for the purpose of collective
bargaining, unless and until it has been certified by
the National Labor Relations Board as the exclu-
sive representative of our employees.
TEXAS Bus LINES, INC.
Robert Levy, Esq., for the General Counsel,
Allen P. Schoolfield Jr., Esq., of Dallas, Texas, for the Re-
spondent.
Eric H. Nelson, Esq., of Houston, Texas , for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on May 23 and 24, 1984, in
Houston, Texas, based on charges filed by Teamsters
Local Union No. 968 (Teamsters) on October 18, 1983,
and March 1, 1984, and a consolidated complaint issued
by the Regional Director for Region 23 of the National
Labor Relations Board on April 16, 1984. Employer ob-
jections to the election in Case 23-RC-5115 were also
consolidated for hearing.' The complaint alleged that
Texas Bus Line, Inc. (formerly Transportation Enter-
prises, Inc.)2 (Respondent) violated Section 8(a)(1), (2),
(3), and (5) of the Act by coercive interrogations and so-
licitations of employees, by initiating an employee com-
mittee to act as the employees ' representative, and by
' Amended at the hearing.
2 All dates are 1983 unless otherwise specified.
TEXAS BUS LINES
withholding a promised wage increase at a time when a
bona fide question concerning representation of its em-
ployees existed.3 Respondent's timely answer denied the
commission of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evi-
dence, and to argue orally. Briefs were submitted by the
General Counsel and Respondent. Both briefs were duly
considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
1. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Texas Bus Line, Inc. is a Texas corporation engaged
in the charter and service business in Houston, Texas. Ju-
risdiction is not in issue. Texas Bus Line, Inc. in the past
12 months, in the course and conduct of its business op-
erations, derived gross revenue in excess of $250,000 and
purchased and received at its Houston, Texas facility
goods and materials valued in excess of $50,000 directly
from points located outside the State of Texas. I con-
clude and find that Texas Bus Line, Inc. is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that Teamsters is a labor organization
within the meaning of Section 2(5) of the Act.
II. BUSINESS OF RESPONDENT
Respondent operates a bus service company of charter
runs and bid runs. The bid runs are part and parcel of
the metropolitan transit scheme and are competitive. Op-
erators and drivers are paid either a flat daily rate or a
mileage rate depending on the nature of their route. In
addition to operators and drivers, Respondent employs
mechanics and service personnel. Although Respondent
operates facilities statewide, this case is only concerned
with the operations within the Houston, Texas metropol-
itan area. Approximately 60 people are employed at the
Houston facility.
III. BACKGROUND
During 1982 an employee committee representing the
drivers and operators was formed. On July 14, 1982, a
contract between the drivers and management was con-
s
Teamsters, Petitioner in Case 23-RC-5115, moved at trial to sever
the "R" case, hold another election , and dismiss the refusal -to-bargain al-
legations of the consolidated complaint The General Counsel and Re-
spondent joined in the Teamsters' motion I granted the motion to sever
Case 23-RC-5115 and remanded the case to the regional director for the
holding of a second election. I also, on the record, dismissed the allega-
tions of 8(a)(5) violations and the necessity to hear evidence on Respond-
ent's objections to the first election.
629
summated with a termination date July 31, 1984. The ef-
fective date of the contract was August 1, 1982. The
contract contained substantial clauses, including a clause
on wages, with rates set for August 1, 1982, through
July 31, 1983, and an increase in wage rates for August
1, 1983, through July 31, 1984.
On November 10, 1982, Teamsters filed an "R" case
petition for an election with the Houston Regional Office
of the National Labor Relations Board (Case 23-RC-
5115). The petition, as filed, sought an election among all
employees of Respondent, including the drivers, but did
not list the driver committee as a recognized bargaining
agent of Respondent's employees nor was the July 14,
1982 contract listed as a current contract. The unit of
employees in the instant case includes the employees for-
merly represented by the driver committee originally
named in the caption as "Party of Interest." A hearing
on the Teamsters petition was set for November 24,
1982, and was attended by Respondent and the Team-
sters. The record is silent about whether a notice of the
hearing was sent to the driver committee; however, the
committee neither made an appearance at the hearing
nor took part in the proceedings. Before the hearing
record was opened, a Stipulation for Certification Upon
Consent Election was executed by Respondent and the
Teamsters setting an election for January 12, 1983,
among driver, mechanic, and service employees of Re-
spondent. The election was held and the Teamsters pre-
vailed. On January 17, Respondent filed objections to the
conduct of the election. The Driver Committee (Party in
Interest) did not take part in the objections. On February
1, the Teamsters sent a list of job stewards to Respond-
ent naming seven employees as stewards while the inves-
tigation of the objections were ongoing. On February 16,
the Regional Director issued his report on the objections
finding no merit to the objections. Respondent, on Feb-
ruary 25, appealed the Regional Director's findings to
the Board.
While the appeal was pending, the Teamsters, on
August 1, sent a request to Respondent's counsel that the
wage increase incorporated in the driver agreement of
July 14, 1982, to be effective August 1, be put into effect.
On August 16, the Respondent's vice president Sam
Mayes held a meeting with drivers and operators. Sever-
al months later, on November 18, Respondent granted a
wage increase , equal to that contained in the July 14,
1982 agreement, to its drivers and operators. The Team-
sters filed an unfair labor practice charge complaining of
Respondent's August and November actions. Subse-
quently, the Board ruled on Respondent's appeal and on
February 17, 1984, ordered an evidentiary hearing of Re-
spondent's objections to the election. An additional
charge was filed by the Union in March 1984, and the
unfair labor practices were consolidated with the objec-
tions on April 16, 1984.4
4 The background is based on undisputed fact pleadings and testimony,
admissions in the pleadings, and objective evidence in the record.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ISSUES TO BE RESOLVED
Having dismissed the 8 (a)(5) allegations of the com-
plaint, severed the "R" case, and remanded it to the Re-
gional Director for holding another election, I shall now
consider for resolution complaint allegations of violations
of Section 8(a)(1), (2), and (3).5 I take judicial notice that
a second election was conducted by the Regional Direc-
tor in Case 23-RC-5115 on July 23, 1984, resulting in
the Teamsters #968 being certified as the exclusive rep-
resentative of Respondent's Houston employees.6
A. Whether Respondent violated Section 8(a)(1) by
coercively soliciting and interrogating its employees.
B. Whether Respondent violated Section 8(a)(1) of the
Act by meeting with its driver employees on August 16,
1983.
C. Whether the labor organization within the meaning
of Section 2(5) of the Act resulted from that meeting of
driver employees.
D. Whether Respondent violated Section 8(a)(2) of the
Act by unlawful assistance to or domination of a driver
employees' committee.
E. Whether Respondent violated Section 8(a)(3) of the
Act by refusing to grant the wage increase requested by
Teamsters on August 1, 1983.
V. THE ALLEGED UNFAIR LABOR PRACTICES
Sam Mayes, regional vice president of Respondent,
testified that he formulates the labor relations policies for
the Houston, Texas facility. Mayes executed an agree-
ment with a driver committee of employees in 1982. The
committee and Respondent were signatory to the agree-
ment on July 14, 1982, with the wages, benefits, and
work rules contained therein to become effective on
August 1, 1982. In addition , there was a wage increase
scheduled in the contract for August 1, 1983.
Subsequent to the election between Respondent and
the Teamsters in January 1983, Respondent did not deal
with the Union because, in its view, the election had not
been properly conducted. Several communications were
received from the Teamsters requesting the implementa-
tion of the wage increase specified in the previous driver
agreement of July 1982. Respondent did not respond to
the Union's request nor did it put the increases into
effect.
During the week of August 8, Mayes initiated separate
conversations with drivers Don Craig, Nelson Gonzalez,
and Roy Nowlin. The conversations took place in
Mayes' office either before or after shifts. Mayes told
each of them that several drivers had voiced an interest
in having a newly elected driver committee. Mayes
asked them what their thoughts were on having a new
driver committee. Mayes could not recall any specific re-
sponse from any of the three men, but he did recall that
some objections were raised to such an election. Mayes
5 The General Counsel's issue framed in its brief, "whether Respond-
ent violated Section 8(a)(1) of the Act by expressing its displeasure with
an employee because charges had been filed with the National Labor Re-
lations Board ," is not alleged in the complaint nor is it within the scope
of either charge I, therefore , shall not consider the issue in my determi-
nations
6 A joint posttrial submission is received into the record as It Exh 1.
asked Craig to determine from the other drivers whether
they would support the idea of a new driver committee.
Craig told Mayes that he would check it out. Gonzalez
may have suggested to Mayes that the stewards chosen
by the Union should be the only committee but Mayes
could not be sure. Although Mayes could not recall
when, he did recall telling drivers, suggesting that he
deal with the stewards, that it would not be fair to all
employees because the stewards were selected from a
group numbering only 15 to 16 and were not from a rec-
ognized group. Mayes also told them that a committee
elected from all the drivers would be recognized as rep-
resentatives of the drivers by the Company and would
replace the committee signatory to the July 1982 con-
tract.
Mayes knew that Craig, Gonzalez, and Nowlin were
sympathetic to the Teamsters and, on occasion, he told
them individually that he thought each were supportive
of the Union.
On August 16, a meeting of all drivers, approximately
35, was held. Mayes chaired the meeting which was to
explain to the drivers that several of their peers wanted a
driver committee to bring problems, and the committee,
in turn, would present the problems , to management.
The problems did not include wages, hours, and working
conditions. Mayes told the drivers that having a commit-
tee was their choice and if they wanted a committee
they could vote the people to the committee. Mayes
denied telling the drivers that there would be an election
for the committee. Mayes recalled that either driver Don
Craig or Nelson Gonzalez questioned whether such an
election was legal. Mayes thought he may have said that
he did not know whether an election was legal or not.
Mayes left the meeting and shortly was called back into
the room. Craig told Mayes that he, Nelson, Roy
Nowlin, Ralph Lane, and Jackie Kelly were elected as
the driver committee. Mayes told the committee that he
would meet with them, on whatever basis they preferred
to discuss any problems the employees had and repeated
that this committee would be the only recognized repre-
sentative of the employees. Although Mayes may not
have told the drivers so, he did not recognize the stew-
ards selected by the Union because the Union's certifica-
tion was not final. Mayes and the committee did meet for
4 to 5 minutes, but Mayes had no specific recall of the
substance. Mayes did recall discussions of the charter
board and deviations from the practice of first in, first
out. He also recalled that on occasions, other than the
meeting, he discussed failure of notification to employ-
ees, why they were being summoned to the office, and
the company rules on "late showings" and "miss outs"
which were detailed in an August 12 memo to drivers.
Although Mayes could not specifically identify the em-
ployee or the time, he did recall that Nelson Gonzalez
complained to him on behalf of other employees about
the operation of the charter board sometime after the
committee was elected.
Mayes stated that the newly elected committee was to
be a go-between for the employees and management for
problems emanating from the employees but management
would still communicate directly with employees indi-
TEXAS BUS LINES
viidually and through no other means. Mayes considered
the committee operative only for those employees who
preferred speaking to a fellow employee rather than
management . Mayes allowed only grievance type prob-
lems to come through the committee, e.g., if a commit-
teeman voiced an employee's complaint that the employ-
ee thought he was not making enough money, Mayes
would answer, "Tell the employees to work harder." If
an employee was shorted on his check, Mayes would act
on such information from a committeeman . One instance,
which happened in October, involved employee David
Smith who had applied for a leave of absence and was
told he would lose his seniority in the interim. Smith and
Craig met with Mayes in the company office and dis-
cussed the situation. Craig reminded Mayes that other
employees had taken leaves of absence without loss of
seniority. Mayes questioned such a practice for a leave of
several months which Smith was seeking . Mayes ulti-
mately agreed that Smith could retain his seniority if he
reported back for duty by December 31.
Subsequent to the unfair labor practice charge of Oc-
tober 5, Mayes confronted Craig with the charge and
told Craig he was no longer to be trusted. Mayes consid-
ered the filing of the charge to be a turnabout on the
part of Craig after taking part in the selection of the new
driver committee.
In either January or February 1984, Mayes called a
meeting of all drivers and 30 to 40 attended. Mayes
could not recall whether the meeting was mandatory,
but he did state that employees are paid to attend manda-
tory meetings. The February meeting was convened to
discuss a reduction in pay for the drivers of the Clear
Lake Express. That express run was bid through the
Metropolitan Transit Authority and bid time was ap-
proaching. Mayes told the drivers that he had to lower
the hourly bid rate to have a chance of renewing the
route on March 31, 1984. Mayes told the drivers that the
express: rate of $85 had to be cut $10 and charter runs
had to revert to the August 1, 1982 mileage rate. Mayes
asked the assembled drivers to vote whether to take the
cut in pay or not. Several employees objected to both
cuts in pay when only the express route was in difficulty.
Mayes nevertheless wanted the drivers to vote on both
wage cuts. Mayes left the room while the drivers voted
and, after the count, he found out the wage cuts were
voted down by one vote. Two or three days later,
Mayes held a second meeting of drivers to vote on the
wage cut for the express run only. The question was
voted on by the drivers and the vote resulted in a wage
reduction for the route to be effective April 1, 1984.
Mayes submitted a bid at the lower rate for the express
route and on February 23, 1984, advised the drivers that
the Company's bid was accepted.
Don Craig testified he has worked for Respondent ap-
proximately 3-1/2 years as a coach operator on a park-
and-ride metro run.
In early August, Craig had several conversations with
Mayes about an election among the drivers. Mayes told
Craig that some drivers were dissatisfied with the 1982
driver committee. Mayes said he would like the drivers
to elect a new committee, then go to the Labor Board
and retrieve the "R" case petition, and go back to the
631
old ways of doing things. Craig replied that he did not
think and election was needed, but he would talk to the
men and see what they had to say. The next day Craig
reported to Mayes that the men did not want to have an
election because representatives had already been elected
at the union hall and the drivers preferred to wait a
while. Mayes told Craig that a mandatory meeting of
drivers would be held the following week. A notice of
the meeting was posted on the company bulletin board
and the meeting was set for August 16. Thirty-three
drivers attended the meeting and Mayes was present
with Curtis McKinney, operations manager. Mayes ad-
dressed the group stating that the dissatisfaction of some
drivers with the 1982 driver committee caused him to
suggest that an election for a new committee be held.
Mayes said he wanted to have better relations between
drivers and management. Craig spoke up and asked
Mayes to recognize the committee elected at the union
hall. Mayes declined to recognize the union-elected com-
mittee. Mayes said each driver could do what he wanted
to do, but Mayes wanted everyone to vote. Nelson Gon-
zalez told Mayes that an election now would be illegal
and several drivers argued for and against another elec-
tion. Ultimately, Mayes and McKinney left the room and
the drivers decided to vote on a new committee. Mayes
returned to the room and learned that Craig, Nelson
Gonzalez, Ralph Lane, Jackie Kelly, and Roy Nowlin
were elected as the new committee. The meeting ad-
journed and the new committee met with Mayes and
McKinney.
Several problem areas were broached by the commit-
tee. The charter board, advance notice to employees of
reprimands, presence of committee members with em-
ployee being reprimanded, and miss-outs were discussed
among the committee members and Mayes and McKin-
ney. The discussions resulted in an agreement on charter
board procedure and Mayes agreed to give drivers ad-
vance notice of reprimands and to allow two committee
members to be present with the employee.
Craig stated that management in the past had never al-
lowed an employee being reprimanded to have any rep-
resentative present. Mayes told the driver committee that
they would be the go-between for drivers and manage-
ment. Scheduled meetings between the committee and
management were discussed and it was agreed that they
would meet jointly once a month. Of the several agree-
ments reached between the new committees and manage-
ment, none were reduced to writing.
In October, after Mayes received the Labor Board
charge filed by the Teamsters, he showed the charge to
Craig and asked if Craig agreed with it. Craig told
Mayes he did agree with the charge and a heated argu-
ment ensued. Mayes, at one point, told Craig he was not
to be trusted. Mayes also reminded Craig that the metro
contract would soon run out, the drivers would not get
their union, and it would be a long, hard battle. Shortly
thereafter a driver, David Smith, wanted to request a
leave of absence and asked Craig to accompany him
when he spoke to Mayes and McKinney. Craig and
Smith met with Mayes and McKinny. Mayes agreed to
give Smith a leave of absence through December but
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a loss of seniority. Craig responded to Mayes that
other employees had received leaves of absence without
loss of seniority. Mayes asked Smith why he had brought
Craig with him and said to Smith that the Company was
not going to tell Craig "shit." Craig immediately left
Mayes' office. Later Craig was involved as a representa-
tive for employee Bob Harrington who was spoken to
harshly by Mayes. Craig and Harrington sought redress
and Mayes did eventually apologize to Harrington at
Craig's request.
Although monthly meetings between the new commit-
tee and management were previously agreed upon, no
such meetings were held.
In February 1984, Craig was on vacation when the
dispatcher called him and said he had to come in for a
driver meeting. Craig went in for the meeting along with
46 other drivers. Mayes and McKinney were also
present. Mayes told the drivers that the Clear Lake run
was up for bids and was highly competitive. Mayes said
the daily rate of $85 had to be cut to $75 for the bid to
be competitive. Mayes also said other companies, includ-
ing Greyhound, were cutting their mileage rates for
charters, and he wanted to reduce the charter rate to the
August 1982 rate to remain competitive. Mayes asked the
drivers to vote on a $10 cut on all metro runs and a
mileage cut on all charters. The drivers voted as request-
ed but turned down any decrease by a 24 to 23 vote.
Within a few days, a notice was posted on the company
board for a second mandatory driver meeting. About the
same number of drivers attended with Mayes and
McKinney present also. Mayes opened the meeting
saying an even number of drivers had attended the first
meeting, therefore, the result could not have been legiti-
mate. Mayes said the drivers would vote again but this
time only on the Clear Lake express run reduction.
Before the voting started, Craig left the meeting but later
learned that the drivers did vote for a pay cut on the ex-
press run.
Craig stated that although the Company never issued
any writing concerning the continued viability of the
1983 driver committee, several weeks after its formation
Mayes was in the dispatch office with Craig and Gonza-
lez and said he did not want to even talk to Gonzalez.
Mayes, at the same time, said he no longer recognized
Craig or Gonzalez as members of the committee.
Nelson Gonzalez testified he has worked for Respond-
ent for 2 years as a driver on a metro run. Gonzalez was
working at the time of the union election in January.
In the first week of August, Gonzalez, after finishing
his run at 9 a.m., was in Mayes' office. Mayes asked
Gonzalez how he felt about taking part in an election for
driver representatives. Gonzalez told him that the em-
ployees did not need to elect anyone because the em-
ployees already had their representatives. Mayes said he
did not recognize the representatives that were elected at
the union hall. Gonzalez told Mayes that any election
now would be illegal. Mayes told Gonzalez that a new
election would not be illegal and the reason he was not
recognizing the representatives chosen at the union hall
was due to only 15 to 16 drivers being present for the
election at the hall. Mayes asked Gonzalez if the employ-
ees could trust the Company. Gonzalez responded that
the employees would only trust the Company if the
Union came in.
Gonzalez attended the mandatory driver meeting of
August 16 where 35 to 40 drivers were present. Mayes
opened the meeting by saying the meeting was for selec-
tion of driver representatives to serve on a driver com-
mittee. The employees could then go through the drivers
committee to deal with management. Craig suggested to
Mayes that the driver committee selected at the union
hall function as the employees' only committee. Mayes
stated that the election at the union hall was not fair in
that the vote was taken among only 15 to 16 drivers.
Mayes added that an election for a new driver commit-
tee now was in accord with the driver contract of 1982
which called for a new committee each year. Gonzalez
voiced his disapproval to Mayes by stating that a new
election was completely illegal and asked Mayes since
when did the Company honor the contract. Mayes told
the group they were only there to talk about an election,
nothing else. After a discussion, the drivers agreed to
hold an election and Mayes and McKinney left the
room. Nominations were made and ballots counted. Five
drivers were selected as the committee. Don Craig, Gon-
zalez, Roy Nowlin, Ralph Lane, and Jackie Kelly.
Mayes said the drivers made good selections and they
would be the go-betweens for management and the driv-
ers. If any problems arose for drivers, the committeemen
were the ones to talk to. The meeting adjourned and the
new committeemen went into Mayes' office with Mayes
and McKinney. The committee voiced complaints to
Mayes and McKinney about the operation of the charter
board and the inequities of drivers being charged with
miss-outs . Mayes ended the meeting by saying he would
check on the charter board and the miss-out situations.
Gonzalez stated that the new committee did not meet
again with management.
Analysis and Conclusions
The General Counsel, in support of his alleged dis-
criminatory refusal to grant a wage increase, included in
the caption of this case the driver committee of 1982 as a
party in interest and in paragraph 10 pleaded a schedule
wage increase found in the 1982 contract executed by
the driver committee of 1982. In paragraph 11, the Gen-
eral Counsel alleged an August 1, 1983 request by the
Teamsters to have the prior contract for wage increase
implemented . Respondent's refusal to honor the Team-
sters' request for the wage increase is the basis for the
8(a)(3) violation alleged.
The General Counsel, on one hand, is arguing the via-
bility of the 1982 contract and impliedly the continued
existence of the driver committee of 1982. On the other
hand, the General Counsel's contention apparently is the
substitution of the 1982 driver committee by the Team-
sters either as a result of the "RC" petition filed in No-
vember 1982 or the result of the first election.
In a dual representation atmosphere, particularly
where one organization by voluntary recognition repre-
sents a fragment of the unit of employees sought by a pe-
titioning second organization , the Board allows the rep-
resentative of the smaller unit to intervene in the certifi-
TEXAS BUS LINES
cation proceedings to protect its interest, and its con-
tract. The smaller unit representative may intervene for
all purposes and attempt to become the certified repre-
sentative of the larger unit of employees by participating
in the election. If limited intervention is all that is
sought, the representatives' continued status and the via-
bility of its contract is determined by the outcome of the
certification election. Where the petitioning organization
prevails in the election for the larger unit of employees,
the intervenor's interest and contract ceases to exist. But
for the failure of the driver committee to intervene in the
election process, that would be the situation in the in-
stant case. Here, however, the driver committee of 1982
failed to intervene in the Teamsters' representation hear-
ing or the election subsequently scheduled. In my view,
that failure spells the demise of the driver committee of
1982 and its contract. The Board has stated that an orga-
nization's failure to act in furtherance of its recognition,
including failure to appear at the representation hearing,
is to be interpreted as either an abandonment of its repre-
sentative status or a disclaimer that it represents the em-
ployees in question. Josephine Furniture Co., 172 NLRB
404 (1968). I conclude and find that the driver committee
of 1982 both abandoned its representative status and dis-
claimed any interest in further representation of the limit-
ed unit of driver employees. Thus, the contract executed
in July 1982 ceased to be effective as terms and condi-
tions of employment for Respondent's employees. More-
over, any efficacy of the prior employee driver commit-
tee was displaced by the same employees' support for
and authorization to the Teamsters labor organization
which culminated in a Board certification of the Team-
sters as the exclusive representative of Respondent's em-
ployees.
The General Counsel cannot base an allegation of dis-
crimination on a vitiated contract. In addition, the Team-
sters has no standing, without more, to enforce a con-
tract term for which it did not negotiate or which incep-
tion preceded the Teamsters' formal raising of a question
concerning representation. I do not view the wage term
of the 1982 contract on a par with a past practice by a
respondent's prior to a claim of representation by a labor
organization for a respondent's virgin employees. Ac-
cordingly, I conclude and find that Respondent has not
unlawfully refused the Teamsters' request to implement a
wage increase on August 1, 1983. 1 shall, therefore, dis-
miss the alleged violations of Section 8(a)(3) of the Act.
Further, I shall delete the "Driver Committee, a Party in
Interest" from the caption of the case as procedurally
unsupportable.
The General Counsel's independent 8(a)(1) allegations
derive from several conversations among Mayes and
drivers in early August. A companion allegation of an
8(a)(2) violation stems from Mayes' followup conduct
culminating in a mandatory meeting of all drivers on
August 16.
Although Mayes' testimony of the events are neither
complete nor at times specific, he does not contradict the
more specific testimony of the driver witnesses. Mayes
denied specifically only the implied purpose of the driver
committee of 1983 and any direction to the assembled
drivers that they would vote for a new driver committee.
633
Mayes disavows that the 1983 driver committee was in-
tended to deal with wages, hours, and working condi-
tions. There are no facts in substantial dispute After con-
sidering all the evidence, I am inclined to agree that the
1983 driver committee had no such purpose.
In 1982, Mayes allowed the driver employees to form
a committee to speak for the employees. Albiet Mayes
and the committee executed a contract, there were little
or no negotiations to arrive at the contract terms. As
Craig and Gonzalez stated, Mayes never allowed any
person to represent an employee nor did he honor the
contract in toto. A perusal of the contract clearly shows
that management rights were the basic theme. The com-
mittee and the contract were nothing more than a con-
venience to Mayes and Respondent. It is no small
wonder that neither the driver committee of 1982 nor
Respondent made any attempt to manifest the employees'
prior representation or the contract as a bar to the repre-
sentatives status sought by the Teamsters.
Promptly, after the Teamsters won the election, Re-
spondent filed objections to the conduct of the election
based on voter improprieties. The Teamsters j ust as
promptly sent Mayes the names of employees selected as
stewards at the union hall. The stewards were now the
employee committee that Mayes would have to deal
with. Respondent continued its objection to the employ-
ee's election of the Teamsters to represent them by ap-
pealing the Regional Director's adverse report on the ob-
jections to the Board. While the appeal was pending, Re-
spondent did not recognize the Teamsters as the repre-
sentative of its employees. As Mayes stated, the Team-
sters' certification was not final. Whether the certifica-
tion was final or not, employees still had problems on the
job. Mayes choose to alleviate those problems by sug-
gesting to employees that a new driver committee was in
order. Without regard for whether several employees
had initiated Mayes' interest in a new driver committee it
was Mayes who asked employees what they thought of
the idea and who was undaunted when several employ-
ees responded that the Teamsters' stewards were the
new employee committee. Mayes openly solicited driver
employees to disaffiliate with the Teamsters and to
assume the representation of employees as the 1982
driver committee had. Despite employee protestations,
the employees elected a new driver committee.
Mayes did indeed meet with the new committee and
discussed various employee problems related to employ-
ment. Mayes' actual intercourse with the committee on
the single occasion shows clearly that the committee was
meant to be no more than a mirror reflection of the prior
committee. When it appeared convenient to Mayes, he
discussed employee problems; when not, he did not. Al-
though Mayes assumed the risk of dealing directly with
employees at a time after the employees had elected a
labor organization as their representative, he had no in-
tention to replace the Teamsters with another exclusive
representative. What Mayes sought was to interfere in
the employees' free choice of a representative and to
cause the employees to defect from the Teamsters.
Mayes' interrogation and solicitation of drivers did
indeed interfere with their exercise of Section 7 rights.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees singled out by Mayes were without re-
course other than to do his bidding. Although Mayes
was not sure the August 16 meeting of drivers was man-
datory, his testimony clearly supports the assumption
that it was and the credited testimony of Craig and Gon-
zalez leaves little doubt. The meeting was devoted en-
tirely to the implementation of Mayes' prior unlawful in-
terrogation and solicitation. The employees voiced their
objections to Mayes but ultimately elected a new driver
committee. The record does not disclose how the driver
committee and Mayes arrived at the agreement to meet
monthly but Mayes' single veto of committeemen Craig
and Gonzalez, voiced after initial discussions of employ-
ee problems presented by the committee, suggests that
Mayes did giveth and did taketh away. In any event, the
new driver committee and its individual members, par-
ticularly the more vocal, were short-lived as problem
solvers.
The General Counsel's allegations of violations of Sec-
tion 8(a)(1) are clearly supported by the evidence. Mayes
did not attempt to disguise his intent either on this
record or in his contracts with the employees. He was
bent on ridding himself of the Teamsters if he could. In
his attempts, he overstepped the bounds of lawful inter-
course with employees and violated the Act.
Just as clearly, the General Counsel's allegations of
violations of Section 8(a)(2) are not supported by the evi-
dence. As stated previously, Mayes' single intent for the
August meeting was to attempt to influence the driver
employees to disaffiliate with the Teamsters and some-
how withdraw the Teamsters' petition seeking certifica-
tion. Mayes did not intend to bestow, nor did he bestow,
representative status upon the driver committee elected
at the meeting. Contrary to the General Counsel, I do
not conclude that Mayes' mandate that an election be
held when a QCR exists violates Section 8(a)(2), in and
of itself. Not only was the recognition offered by Mayes
merely verbal, it was also limited to grievance-type prob-
lems not to include the substance of wages, hours, and
working conditions. There is nothing in the record to
show that Mayes intended anything more than business
as usual , nor is there any evidence to suggest that busi-
ness was not as usual . In addition , there is no evidence to
show that the driver committee of 1983 functioned as an
organization composed of participating members. There
were no officers responsible for running an organization
nor was there any stated policy or purpose either oral or
written. In short, the driver committee does not meet the
criteria necessary to establish it as a labor organization
within the meaning of Section 2(5) of the Act, and I so
find. Therefore, the General Counsel's allegation that
Respondent violated Section 8(a)(2) by dominating and
interfering or rendering unlawful support to a labor or-
ganization is unsupportable in both law and fact and
must be dismissed. The General Counsel's reliance on
Bruckner Nursing Home, 262 NLRB 955 (1982), is mis-
placed in that the instant case does not involve a rival
union situation. Here, Respondent's vice is not a viola-
tion of neutrality, but rather a disregard for, the status of
an elected representative.
CONCLUSIONS OF LAW
1, Respondent, by interrogating employees about, and
encouraging the formation of, an employee committee at
a time when the employees had an exclusive representa-
tive, has violated Section 8(a)(1) of the Act.
2. Respondent, by soliciting employees to disaffiliate
with their exclusive representative, has violated Section
8(a)(1) of the Act.
3. The General Counsel has not sustained his burden
of proof for any other allegations in his complaint.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order the
Respondent to cease and desist and to take certain af-
firmative action designed to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]