Trailways, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1978

237 N.L.R.B. 654 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trailways, Inc. and International Union of Operating
Engineers, Local 714, AFL-CIO. Cases 16 CA-
7160, 16-CA-7239. 16 CA 7260. 16--CA--7268.
and 16-RC-7476
August 18. 1978
DECISION, ORDER, AND DIRECTION OF
SECOND EL ECTION
BY CHAIRMAN FANNIN(; AND M MHB RS JI KhlNS
AND PENEI.I.O
On March 31, 1978, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. and the Respondent
filed an answering brief, exceptions, and a brief sup-
porting its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
I. We adopt the Administrative Law Judge's find-
ings that during a union organizational campaign the
Respondent interrogated, threatened, and coerced
employees in violation of Section 8(a)( ) of the Act:
promised benefits to certain employees and granted
benefits to others in violation of Section 8(a)( ) of
the Act; and discharged an employee on June 9.
1977,3 in violation of Section 8(a)(3) of the Act. We
also adopt the Administrative Law Judge's finding
that the violations which occurred during the critical
period prior to the election were sufficiently serious
to require the setting aside of the election.
2. The Administrative Law Judge also found that
Supervisor Allen Basham interrogated Sandra Clark
i lhe Respondent has excepted to certain credihilht, findings lmade hn the
Administrative Law Judge. It is the Board's established pohli. notl to oer-
rule an Administrative Law Judge's resolutions with respect to credihilit
unless the clear preponderance of all of the relevant esldence conillNle us
that the resolutions are incorrect Stundaird IDr i14all Prodlu iL /Imi 91
NLRB 544 (1950., enfd 188 F.2d 362 (C.A 1. 19511. we have ;larcfulh
examined the record and find no basis for reversing his findings
The Administrative Law Judge failed to discuss the elsdence perta;llilg
to whether the Respondent's supervisr. Allen Basheml. sirncd emrploee
Sandra (Clark that the selection of a uniion wo uld he futile alnd v ould resul
in a loss of benefits in violation of Sec 8(atll) of the Adct In ciew of the
violations found and the renied) swhich I e a ise. an aiddolllnil fidcing Mi ould
be cumulative. and it is therefore unnecessari to decide hceher the Re-
spondent also violated Sec 8(a)l I) hb Bashemnlis lleged av.rnings to ( 1.rk
All dates are in 1977 unless othersise indicatecd
regarding the Union's organizational drive in viola-
tion of Section 8(a)( 1) of the Act. We find merit in
Respondent's exception to his finding.
Clark credibly testified that she was at her desk
when Basham "asked me how we were doing and I
said, 'Fine. Everyone in your department signed a
union card.' I told him not to take it personally."
Several days later she was again approached by Bas-
ham, who "asked me how it was going and how we
were doing downtown and I said, 'Fine. We have all
we need.' And he said something about that he was
surprised that we were doing that well."
In finding these inquiries to be improper interroga-
tions, the Administrative Law Judge noted that Bas-
ham had interrogated another employee several days
earlier and had knowledge thereby of the Union's
organization campaign.
IThe Respondent excepts, contending that in both
of these conversations Basham asked innocuous
questions that were routine for a supervisor to direct
towards Clark, who was group leader in charge of the
six employees in the department. The word "Union"
vwas not mentioned by Basham; rather, this subject
was raised in the employee's response to Basham's
inquiry. Respondent argues that Basham's job re-
quired him to check frequently on the progress of the
department. Also, since Logan Street personnel have
constant contact and interchange with the employees
at the downtown headquarters, Basham's inquiry as
to work being performed "downtown" was routine.
In short, the Respondent insists that the record does
not support a finding that these comments were any-
thing more than routine inquiries regarding the work
of the department.
We do not agree with the Administrative Law
Judge's conclusion that the ambiguity of these in-
quiries was eliminated by the context of the state-
ments. In fact, the testimony was imprecise and fails
to indicate how the questions were asked. Clark's tes-
timony that her supervisor "asked me how we were
doing" does not explain whether the inquiry was
phrased. "How are we doing?"; "Hflow are , ou
doing?": or "How are thei doing?" Obviously. the
change of a single word can be important in ascer-
taining whether the inquiry was innocuous 4 or
whether it was an improper interrogation concerning
union activity. However, we find it unnecessary to
reach this issue. In light of our adoption of the Ad-
ministrative Law Judge's finding other instances of
unlawful interrogation, the remedy and Order would
not in any event be affected. Accordingly, the com-
plaint, insofar as it alleges an unlawful interrogation
of employee Clark on March 18. is dismissed.
3. The Administrative l.aw Judge found the testi-
4 See, e.g.. Hhlrr ( -rporriotn. 238 Nl RB 907 t1977)
237 NLRB No. 79
654
TRAILWAYS, INC.
mony too vague to support a finding that Kathy
Francis was promised a promotion if she engaged in
surveillance of the union activities of her fellow em-
plosees. The General Counsel excepts. contending
that Supervisor Smith's juxtaposition of informing
her that she would be promoted with the statement
that he wanted to know what was happening in the
Company constituted a promise of a promotion cou-
pled with a request that she report to him about the
union activities of the employees. We agree with the
General Counsel and find that Smith's solicitation of
surveillance was a violation of Section 8(a)( 1) of the
Act.
Francis testified that Smith told her on or about
June 10. 1977. that a highly confidential, top man-
agement job was available to her if she wanted it.
Francis further testified that Smith told her that, he-
cause it was highly confidential, she would not be
able to involve herself in an' type of union activit,
and that he wanted to know what vwax. goiing on in Itw
Comrpautt y.
Francis was a member of the union organizing
committee at the Logan Street facility. The Adminis-
trative Law Judge credited her testimony over
Smith's denial that on March 23 he improperly inter-
rogated her "about what was going on with the
Union." Shortly after this improper interrogation.
she transferred to the "downtown" Jackson Street fa-
cility. Despite the fact that she had only been em-
ployed at the Jackson Street location for 3 months
and was not yet familiar with the personnel or the
workflow, she was offered a promotion. It is relevant
to note that the Respondent at this time was insistent
that both the Logan Street and Jackson Street facil-
ities constituted an appropriate unit, and made a re-
quest for review of the Regional Director's Decision
and Direction of Election for the Logan Street facil-
itv. A vote-and-impound election was ordered bx the
Board pending ruling on the Respondent's request
for review regarding the appropriate unit. The Board
panel majority later agreed with the Respondent's
contention and ordered the destruction of the ballots
of the election held for the Logan Street emploxees
and ordered a new election in the combined-facilities
bargaining unit.?
Thus, it is relevant that this alleged solicitation of
surveillance was directed to an employee intimately
aware of the Union's organizational campaign who
was in a unique position to report to him any incipi-
ent union activity at the Respondent's Jackson Street
facility. We conclude that the totalit, of circuim-
( milneali 7ral..a al /, i 21, 2 NI RB 62tH ( 19-7) ( harlrnian I 1lilllC
would haxe affirmed the Regionnal I)lre. or', fiinding thait he pct tol nd-[,i
single-lc alion urnit AlN ilPPrp prriteC Hi adhered io thst p-rillon but .Vrce,
that the -mplo\er's condruct requires that the elecilo be sel aside
stances demonstrates that the desire of Smith to
"know what was going on in the Company" was a
reiteration of his earlier concern that Francis tell him
about the union activities of fellow employees. Ac-
cordinels. we find that Supervisor Smith's solicita-
tion of surveillance was in violation of Section 8(a)( 1
of the Act.
4. 1The Respondent excepts to several of the Ad-
ministrative l.aw Judge's evidentiarv rulings during
the hearing. The Respondent contends that the Ad-
ministrative Law Judge prejudiced the Respondent's
defense by improperly excluding an affidavit and
statement containing prior inconsistent statements.
which the Respondent sought to introduce into evi-
dence for impeachment purposes. The Respondent
requests that the Board reverse the Administrative
Law Jude's ruling and admit these statements.
Tlhe Administrative law Judge rejected these
statements because (I ) there was an "insufficient
foundation," referring to the need for demonstrating
that the circumstances under which the statements
were taken were such that the statements are worthy
of belief: and (2} there was no showing that the prior
statements constituted a substantial change of posi-
tion on a material issue of fact.
An examination of the record demonstrates that
these prior statements do. in fact, contain sufficient
changes in position on material issues of facts to war-
rant admission into evidence. With regard to the Ad-
ministrative L.aw Judge's contention that these state-
ments were inadmissible because of the manner in
which the statements were given, that contention
goes to the weight of the evidence as opposed to its
admissibility. Thus, the Administrative Law Judge
improperly excluded the Board affidavit and the em-
plosee statement taken by the Respondent's attorney
as evidence of prior inconsistent statements. We have
considered these prior inconsistent statements to de-
termine if then warrant a reversal of the Administra-
tive l.aw Judge's credibility or other findings con-
cerning these two witnesses. We note that the Board
affidavit is not completel? dispositive of the issue of
credibility,. particularly where, as here, the employee
did not draft the document and failed to give it close
scrutiny prior to signing it. Similarly, the employee
statement given to the Respondent's attorney was
not completely dispositive of this emploee's credi-
bilit 3 since the emploee did not draft the statement.
or closelx scrutinize it prior to signing it. and at the
hearing the employee stated that the attorney seemed
to be trying to put words into her mouth when the
statement was taken. Considering these statements
along with the entire record. we conclude that no
change in the Administrative l.aw Judge's credibility
or other finding is justified.
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Respondent excepts to the Administrative
Law Judge's refusal to order the production of Equal
Employment Opportunity Commission affidavits not
in the possession of the General Counsel.
The record establishes that employees Paula
Hampton and Joyce Williams filed charges with the
Equal Employment Opportunity Commission (here-
inafter the EEOC) alleging that their respective ter-
minations were racially motivated and that each of
these employees provided the EEOC with a state-
ment concerning their respective discharges. At the
hearing, the Respondent requested that the General
Counsel produce these statements in accordance with
the Jencks Act, 18 U.S.C.A. Sec. 3500. Relying on
Section 102.118 of the Board's Rules and Regula-
tions, Series 8, as amended, the Administrative Law
Judge found that he only had the authority to "order
the production of any statement (as hereinafter de-
fined) of such witnesses in the po.session of the general
counsel which relates to the subject matter as to
which the witness has testified." (Emphasis added.)
Contending that this ruling was improper and preju-
dicial, the Respondent urges that, since the EEOC
affidavits in question were not produced, the direct
testimony of Hampton and Williams be stricken
from the record.6
The EEOC affidavits were not in the possession of
the General Counsel at the hearing, and prior to the
hearing the Respondent did not request that the
General Counsel or the National Labor Relations
Board procure those statements for the use of the
Respondent at the hearing. The Respondent also
failed to subpena the EEOC for the affidavits, even
though it was fully aware that charges had been filed
by these individuals with the EEOC. In any event, as
both of these individuals were found to have been
discharged for cause, the Respondent has failed to
show that it was prejudiced by the Administrative
Law Judge's ruling concerning the two affidavits re-
lating to the circumstances of their discharge. Under
the circumstances of this case, we have no hesitation
in holding that the Administrative Law Judge's refus-
al to order the production of the affidavits was not
prejudicial.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Trail-
ways, Inc., Dallas, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
I. Insert the following as paragraph l(d) and relet-
ter the subsequent paragraphs accordingly:
"(d) Soliciting surveillance by employees of other
employees' union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I I s I t:R I HER ORDI Ri) that the election held on
October 28, 1977, in Case 16-RC-7476 be, and it
hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
See ailr l . hln,ii trlu mi. t . 335 I 2d 7491 ( A 9. 1964) I'he court held
hat the Board erred Ir not producing statements "sought onl 5 to the extent
that thes rela.ted to the subject matter of this public testimon " Id. at 755.
APPENDIX
No ll(E To EMPI.OYEES
Posrili) B't ORDE R OOF FTH
N AIIOiNAI LAB()R RIILAIIONS BOARD
An Agency of the United States Government
After a hearing at which all parties participated and
were given the opportunity to call witnesses, examine
and cross-examine witnesses, and to present evi-
dence, it has been found by the National Labor Re-
lations Board that we have violated the National La-
bor Relations Act. We have been ordered to stop
such activity, to post this notice, and to abide by its
terms.
Wi wl.i. xiOi interrogate our employees con-
cerning their interest in or activity on behalf of
International Union of Operating Engineers,
Local 714, AFL-CIO, or any other labor organi-
zation.
WE WiL.L NOI solicit surveillance by employees
of other employees' union activity.
Wi, W\II L NO'i threaten our employees with dis-
charge, plant closure, or other loss of benefits
because of their interest in or activity on behalf
of the above-named Union, or any other labor
organization.
Wi wI.iL NO promise wage increases to our
employees in order to get them to stop their ac-
tivity on behalf of the above-named Union, or
any other labor organization.
W: W itl.. NOr tell our employees that it would
be futile to select the above-named Union or
any other labor organization, as their collective-
bargaining representative.
Wi wV iii NOi discharge or otherwise discrimi-
nate against employees because of their interest
in or activity on behalf of the Union.
W ii wu.l. N'oi grant benefits to our employees
656
FRAILWAYS. INC.
in order to persuade them to stop their acti\it
on behalf of the above-named Union, or anN
other labor organization.
WF Wllt NOT in any other manner interfere
with, restrain, or coerce our ermploNees in the
exercise of their rights guaranteed them h\ Sec-
tion 7 of the National Labor Relations Act. as
amended.
WE WILL offer Paula Wells immediate and full
reinstatement to her formerjob or, if that job no
longer exists, to a substantially equivalent posi-
tion of employment, and wt w iii make her
whole for any loss of wages or benefits she maN
have suffered as a result of the discrimination
against her. with interest.
Our employees are free to engage in union activitN
on behalf of any labor organization. or to engage in
other concerted activity for their mutual aid or pro-
tection, or to not to do any of these things.
TRAIL.AYS, IN(
DECISION
STATEMENT OF ltiE CASE-
JAMES L RosE. Administrative Law Judge: The issues
raised by the consolidated complaint in the CA cases. and
the answer thereto, were heard before me on August 30
through September 2, 1977.' On motion of the General
Counsel. concurred in by the Respondent. Trailways, Inc..2
and Charging Party, objections to conduct affecting the
results of the election held on October 28, in Case 16 RC
7476, and the challenged ballots, were consolidated with
the consolidated complaint herein for hearing and deci-
sion. The reopened hearing was held in Dallas. ITexas. on
January 10, 1978.
In brief, the General Counsel alleges that the Respon-
dent engaged in certain activity violative of Section 8(a)( 1)
of the National Labor Relations Act. as amended. 29
U.S.C. § 151, er seq., and discharged five employees and
denied one a promotion in violation of Section 8(a)(3).
While admitting the discharges, the Respondent denies
that they were motivated by the employees' union activity
or in any other way were proscribed by the Act. The Re-
spondent generally denies having engaged in any other un-
lawful conduct.
The Respondent's unlawful conduct is alleged to have
taken place between March 15 and June 20. The petition in
Case 16-RC-7476 was filed on March 24. Pending the
Board's determination of the scope of the unit. an election
wherein the ballots were impounded was held on June 17.
It was ultimately determined by the Board that the unit
petitioned for was inappropriate, the ballots were ordered
destroyed, and the Regional Director was instructed to
conduct an election among the employees in the unit found
IAll dates are in 1977 unless other'ise Indicated.
2 The Respondent's name appears ais anended at the hearing
appropriate. ( ontincnlal Trailswars. Inc.. 232 NLRB 628
1977)
I he election was held on October 28, the tally of ballots
shoing that of an approxim.atels 350 eligible voters. there
were 134 votes cast for the Petitioner. 154 votes cast
against an! participating labor organization. I void and 35
challenged ballots. 23 bh the Board's agent of individuals
whose names were not on the eligibility list. and 12 by the
Petitioner. Both parties filed objections to conduct affect-
ing the results of the election.
At the hearing on January 10. 1978. the Petitioner with-
drew its challenges, and announced that it would present no
evidence concerning the Board's challenges. conceding
that thes should be sustained except for the five individuals
who were named in the consolidated complaint as having
been unlawfull` discharged. Based upon this, counsel for
the Emplover stated that the Employer's objections were
moot. and his motion to withdraw them was granted. Fi-
nall,. the Petitioner stated that it would present no evi-
dence concerning its objections other than that which was
offered at the hearing concerning the allegations in the
consolidatted complaint.
At issue. then. is certain activity engaged in by the Re-
spondent between March 15 and June 20. including the
five dischargees. Such of this activity as occurred subse-
quent to March 24 the Petitioner contends is conduct af-
fecting the results of the election on October 28. For rea-
sons detailed iifra. the Employer contends that no acts
occurring before September 29 (the date of the Board's
decision) or June 17 (the first election) should be consid-
ered in ruling on the objections.
Based on the record as a whole, including my observa-
tion of the witnesses, briefs and arguments of counsel and
other representatives. I hereby make the following:
I INI)IN(iS Of: F( cl kNI) CoON(.' USIONS OF LAW
I J RISD)I riON
The jurisdictional facts are conceded, and as indicated
above. the Board has in fact asserted jurisdiction over this
employer. I accordingly find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6). and (7) of the Act.
II ti I ABOR ()R(iANIZA110N INVOLVED
International Union of Operating Engineers. Local 714,
AFL CIO (herein the Union), the Charging Party in the
complaint cases and the Petitioner in the representation
case, is admitted by the Respondent to be, and I find is, a
labor organization within the meaning of Section 2(5) of
the Act.
I111 1Hiii1 1 (; 1) t Ni AIR I ABOR PRA( TI( ES
A. Firctual Background
The Respondent's main corporate headquarters is locat-
ed at 1500 Jackson Street. in Dallas. Texas. There are ap-
proximatelN 165 employees at the Jackson Street facility
657
DELCISIONS OF NATIONAL LABOR RELATIONS BOARD
who are included in the unit found appropriate by the
Board in Continental Trailnwavs, Inc. supral. There are be-
tween 170 and 190 unit employees at the Logan Street fa-
cility.
On March I 11, the organizational activity began with Lo-
nita Munoz' going through the phone-book yellow pages to
find a union to contact. She picked the Union and called to
make arrangements to talk to a business agent. She met
with Business Agent Charlie Benson March 14. who then
had a general meeting with employees on March 15. There-
after, there were a number of meetings of employees with
Benson at the Fair Park Restaurant. approximately I mile
from the Logan Street facility. These meetings were gener-
ally held at noon. Throughout March, April, and May. a
number of employees signed authorization cards: there
was general talk in support of the Union at the Respon-
dent's facilities and normal organizational activities.
On March 24, the Union filed a petition seeking an elec-
tion in a unit of employees at the Logan Street facility
only. The Respondent petitioned for review of the Region-
al Director's decision directing an election in this unit, ar-
guing that the only appropriate unit included also the Jack-
son Street employees.
As indicated above, the Board directed that an election
be conducted in the Logan Street unit, but that the ballots
be impounded pending determination of the unit in ques-
tion. This procedure, incidently, predated by some months
the Board's newly adopted vote-and-impound procedure
and is, apparently, the first case in which such a procedure
was used. In any event, following the election of June 17,
the Board entered its decision and an election was held on
October 28 with the results set forth above.
On March 18, Mary Joyce Williams and Pamela Hamp-
ton were discharged because, according to the Respondent.
they had excessive absenteeism. Similarly, on April 15, De-
lilah Hubspeth was discharged for excessive absenteeism as
was Kathy Coleman on June 10. On June 9, Paula Wells
was discharged because of "insubordination." These dis-
charges are alleged to have been in violation of Section
8(a)(3) of the Act. Also alleged violative of Section 8(a)(3)
is the Respondent's failure on June 20 to promote Darla
Halford and the probation of Janise Willson. Darla Hal-
ford, and Sylvia Cedillo on April 7.
B. Analvsis and Conclusion.s
I. The alleged 8(a)(I) activity
a. Interrogation
On March 14, Allen Basham, the express accounting
manager. approached Lonita Munoz and told her that he
wanted to talk to her in the garage. They went to the ga-
rage and ultimately to the parking lot, during which time
The appropriate unit was found to he
All office clerical empioNees emplosed b) the l.mploher a;l its ,.il tisc
at 2801 Logan Street and 15(X) Jackson Street. I)allas I exas. addrce,,.
including group leaders., excluding all other emplosees including tech-
nical employees, professional emplosees. guards and %,atchmen land
supervisors as defined in the Act.
they had a discussion about the union activity. Among
other things, Basham asked her, "How far have you gotten
with the Union?" He went on to state that he needed to
know what the employees' complaints were and she told
him.
Although admitting the conversation with Munoz in the
garage and parking lot on March 14, Basham generally
denied making any of the statements attributed to him by
Muno,.
The conflict between Munoz and Basham I resolve in
favor of Munoz' version. I was impressed with her straight-
forward demeanor and generally felt that she was a more
reliable witness than Basham. In addition, given that this
conversation took place on the very day of the first group
meeting of employees with the business agent at noon, and
the fact that Basham was unable to explain the necessity
for talking to Munoz in the garage or parking lot even
though admitting to having done so, I conclude that there
is a high probability that Basham's purpose in talking to
Munoz was to discuss the Union. I accordingly conclude
that Basham did in fact interrogate Munoz on March 14 in
violation of Section 8(a)( ) of the Act.
Similarly,. on March 18, Basham asked group leader San-
dra Clark how they were doing, to which she responded,
"Fine. Evseryone in your department has signed a union
card." And a few days later Basham asked how they were
doing downtown. She answered. "Fine. We have all we
need." While these questions are somewhat ambiguous,
Basham's interrogation of Munoz and his knowledge of
union activity both before and after his conversations with
Clark lead me to conclude, in spite of his denial, that he in
fact did interrogate ('lark as alleged, if not on March 24.
on two occasions in late March. 4
On March 23. Ronald Smith. the assistant office manag-
er in charge of personnel at the Logan Street facility, called
Kathy Francis to his office. During this conversation he
asked her, among other things. "questions about what was
going on with the union." They then embarked upon a
general conversation concerning the union activity and the
effects that it would have on the employees. I credit Fran-
cis, because of her generally trustworthy demeanor, over
Smith's generalized denial. I conclude that in the manner
indicated he did, in fact, interrogate an employee in viola-
tion of the Act.
In mid-March, then supervisor Jim Dodd called Pamela
Hampton into the lunchroom and talked to her about the
Union. During the conversation he said "Pamela. are you
for the union?" She told him yes, and they contineud their
discussion about the Union.
Dodd is no longer employed by the Company, having
been terminated, apparently, along with some 450 salaried
employees as an economy move instigated by the new pres-
ident. J. Kevin Murphy.
In any event. Dodd was not subpenaed either by the
General Counsel or the Respondent to testify, and
Hampton's testimony concerning his statements to her
stand undenied on the record. In addition to this, I general-
4 lhc ittcrro tilion ,f ( lark I, Blashairn t alleged in the compl.aint to
h;lc i,.kcii pl.ice 01 \a.rch 24 this iS a. n inimgnificant variation from the
plcedirigs. and I dio iot hehl.ie thii the Respondent was prejudiced in the
prepallrltlon of its defensec
658
TRAILWAYS, INC6
ly credit the demeanor of Hampton and conclude that, in
fact, Dodd did make the statements attributed to him
around March 14 or 15. By this the Respondent violated
Section 8(a)( I) of the Act.
Similarly. on April 5. Dodd initiated a discussion with
Paula Wells, asking her if she had signed a union card and
generally discussing the Union and his animus towards it.
Again, Wells' testimony concerning Dodd's interrogation
of her stands undenied on the record. In addition I general-
Iy credit Wells' testimony in this matter and conclude that
Dodd did interrogate her as alleged in violation of Section
8(a)( ) of the Act.
b. Assignment of extra wrorA
It is alleged that on or about March 16 Jim Dodd as-
signed to Hampton extra work in order to force her to
disavow the Union. Hampton did testif, generally that
about this time Dodd watched her and that. "I started get-
ting all different work." Such is the sum of Hampton's
testimony with regard to this allegation. In spite of the fact
that it stands undenied on the record. I find that this is
insufficient to base a finding of the violation alleged.
Hampton's testimony is simply too vague and general to
support a finding that the Respondent interfered with em-
ployee rights in the manner alleged Accordingls I shall
recommend that this allegation be dismissed.
c. Threat of di.ihcargc
At the time Dodd interrogated Hampton concerning
whether she had signed a union card on or about March
14. he also told her, "Don't vou know that N.ou could lose
your job for messing around with the union?" I find that
such a statement by a supervisor to an employee following
interrogation of that employee's union activit, is a clear
threat in violation of Section 8(a)( ).
It is alleged that during Dodd's April 7 conversation
with Wells and Gibson, he threatened to discharge them
because of their activity on behalf of the Union. While I
find from their undenied and credited testimony that Dodd
in fact did discuss the Union and their union activitN with
them on that date, there is nothing in the version of either
to suggest that he threatened to discharge them. There was
interrogation, supra, and the promise of a wage increase,
noted below. However I do not find that there was a threat
of discharge and accordingly will recommend that this alle-
gation of the complaint be dismissed.
It is also alleged that on or about May 19, Smith dis-
cussed the matter of union activity with Wells and Gibson
during which conversation in his office he stated among
other things, "Paula you can be fired for soliciting union
materials within the building." And he told her, "Paula.
don't ever let me catch you because you will organize on
the sidewalk."
Smith generally denied the statements attributed to him
in this regard, although admitting that the conversation did
take place on the date indicated. I credit Wells' version and
find that Smith did make statements to the effect testified
to by her. These statements I conclude amount to a threat
of discharge of an employee for engaging in protected
union activity and are therefore violative of Section 8(a)(I)
of the Act.
While I do not find this specific allegation set forth in
the complaint, the matter nevertheless has been fully liti-
gated and in any event falls within the general allegations
of unfair labor practices involving Smith. Accordingly, an
order remedying this is warranted.
d. Soliciting siurseillance of others union activitv
It is alleged that on or about June 10. Smith offered
employees benefits to solicit their surveillance of other em-
ployees' union activit. This allegation relates to the time
on or about June 10 when Smith told Kathy Francis that
the job of confidential secretary to him was available and
wanted to know if she was interested. She testified that he
also said something to the effect that he wanted to know
what was going on in the Company. While it is possible to
interpret this testimony as a promise of benefit amounting
to interference with employees' Section 7 rights. I do not
believe that such an interpretation is necessary or that find-
ing a violation in this regard is warranted on the state of
the record here. Francis' testimony tying in the discussion
of another position, the offer of which does not seem un-
reasonable under the circumstances, with "what is going on
in the compan)'- is too vague to support finding a violation
of the Act Accordingl.- I will recommend that this allega-
tion he dismissed.
e. Promnise of wagec increases
In mid-March. as noted above. Jim Dodd interrogated
Pamela tlampton. during which conversation he had asked
her if she had signed a union card and advised her that she
could be discharged for "messing around with the Union."
Also during this conversation Dodd told her, "Well, if you
forget about the union, there will be some new machines
coming in" indicating, she thought, that she would be able
to make more money. In the context of his interrogation
and threats, I find that this statement by Dodd did amount
to a promise of a wage increase in order to encourage em-
plosees not to support the Union. By its supervisor making
such a statement, the Respondent violated Section 8(a(l1)
of the Act.
Although somewhat unclear from the record, on March
25 or April 5. Paula Wells had the conversation with Dodd
wherein he interrogated her concerning her activity on be-
half of the Union and during the conversation advised her
that there was a supervisory position open, for which he
would consider her. During this conversation Dodd, "told
me that I would get a raise sooner through him that I
would through a union." This, in the context of discussing
her wage increase (Wells was to reach the top of her wage
scale on June 1), along with suggesting to her the supervi-
sory jobh. I find implicitly was a promise of a wage benefit
in order to discourage union activity. The Respondent
therebs siolated Section 8(a)( I).
During earls June. Robert M. Murphy. vice president of
industry relations, held a series of meetings with groups of
employ ees during which, admittedly, he attempted to influ-
ence them against the Union. While Murphy denies that he
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said anything during these meetings which could be con-
strued as an unlawful threat or promise, I find that in the
respects set forth he did.
Of course an employer may discuss his objections to a
union with employees and give specific views about a par-
ticular union. However, an employer is not required to do
so, and such statements as are made during an antiunion
campaign by an employer must strictly adhere to permissi-
ble bounds. Thus as the Supreme Court said in N. L.R. B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969):
Any assessment of the precise scope of employer
expression, of course, must be made in the context of
its labor relations setting. Thus, an employer's rights
cannot outweigh the equal rights of the employees to
associate freely, as those rights are embodied in §7
and protected by §8(a)( ) and the proviso to §8(c).
And any balancing of those rights must take into ac-
count the economic dependence of the employees on
their employers, and the necessary tendency of the
former, because of that relationship, to pick up intend-
ed implications of the latter that might be more readi-
ly dismissed by a more disinterested ear.
While memory of the precise words uttered some months
before one testifies is at best difficult, I am nevertheless
persuaded that on balance the testimony of Wells and
other employees, infra, concerning the general tenor of
Murphy's statements during these meetings were as they
testified. Such included an unlawful threat to close. Thus.
at his April 6 meeting Murphy stated:
[T]he only obligation the company has is to sit down
and meet with a union, that they did not have to nego-
tiate or agree upon anything.
He also said that the company could shut down and
move to another location. He referred to a handbill
that had been passed out previously by the in-plant
committee about a rumor of being transferred to
Memphis, Tennessee, saying that if you voted yes, this
rumor could become a fact. And he used Farrah Man-
ufacturing as an example.
I specifically do not credit Murphy's denial that he made
these statements in the general matter testified to by Wells.
I conclude that during his June 6 meeting Murphy did
make an implied threat that in the event the employees
voted for the Union, the office would be closed. The fact
that Murphy is an attorney and has some credentials in
labor management relations does not persuade me that he
would not, could not, or did not make the statements at-
tributed to him.
Margaret Carrigan testified that during Murphy's meet-
ing of June 1, when one employee asked if the building at
Logan Street could be closed, he stated, "Yes, it could be."
Carrigan then asked if it was not against the law to close
the building during union activity and Murphy stated,
"''No,' it didn't make any difference, that if the company
was not making any money, that they would close our loca-
tion."
Such a statement is susceptible of a lawful interpretation
as a permissible statement by an employer during an an-
tiunion campaign. However, such is also susceptible to the
reasonable interpreation by employees hearing it that re-
gardless of the law, the Respondent could and might well
close its Logan Street facility. By this statement, I find that
Murphy threatened employees in violation of Section
8(a)( 1 ).
f. Threat to tap telephones
During the June 6 meeting, it is alleged tha Murphy fur-
ther threatened employees with putting taps on telephones
in order to monitor their personal calls. Murphy and Smith
agree that the subject of tapping telephones came up, but
both contend that it was Wells who first used the word
"tap." Wells, on the other hand, testified. I believe credi-
bly. that it was during Murphy's discussion of the give-
and-take in negotiations that he suggested the Company
might demand that employees not use company telephones
for personal calls. He said that such would be written into
the contract and monitored.
While I generally credit Wells' version over that of Smith
and Murphy in this regard, I do not find it the type of
threat which would be violative of Section 8(a)(l). Even
Wells' version is in the context that this is the type of item
which could be demanded during negotiations and which
could conceivably make its way into a finalized collective-
bargaining agreement. Murphy did not threaten to tap or
otherwise monitor telephone conversations in order to dis-
courage employees' union activity. Accordingly I find that
this allegation has not been sustained.
g. General threat
It is alleged that on March 17, Supervisor Jessie Horn-
buckle made a generalized threat to Hampton by stating,
"'I hate to see the union messing up so many girls." Horn-
buckle denies that he made this statement.
Since there is a direct conflict concerning whether or not
this statement was made to Hampton, a credibility deter-
mination is required which I resolve in favor of Hampton,
principally on her demeanor. The connotation of the words
"messing up" is that of an adverse effect on employees,
particularly in the context of other interrogation of Hamp-
ton concerning signing a union card and the like. This
statement by him did amount to a generalized threat in
violation of Section 8(a)(l).
h. Futility of selecting the Union
Franics' testimony concerning her March 23 conversa-
tion with Smith, among other things supra, includes:
He said he couldn't understand why we wanted a
union anyway because the company wouldn't give us
anything, and when we went to negotiations we had to
give something to get something and that the company
could start us at around $2.00 an hour and the union
would ask for three times that much and we would
end up getting less than what we were making at the
present time.
As in other respects, I credit Francis' version of this con-
versation in this respect over Smith's general denial. I find,
660
TRAIL WAYS. INC
as alleged by the General Counsel, in this statement the
concept that it would be futile for employees to vote for the
Union. Such. in the context of the Company's general an-
tiunion campaign, is clearly violative of Section 8(a)( 1)
Similarly, during the April 5 conversation Clark had
with Basham, he told her. "The Company will start bar-
gaining at about $2.00 an hour and the union will start
bargaining at about $5,00 or so an hour and the figure that
would be arrived at would be in between and it will be less
than what you are making now." In the context of
Basham's other statements to Clark concerning the union
activity, I find this contained the idea that it would be
futile for the employees to vote for the Union. The Respon-
dent thus violated Section 8(a)(1). In finding this violation.
I specifically credit Clark's version of the substance of the
conversation over Basham's general denial.
It is also alleged that attorney Murphy on June 1. and
Gene Miller on April 19, respectively to employees Carri-
gan and Medellin made statements indicating the futility of
selecting the Union. I find nothing in the testimonx of
these two employees concerning the events alleged to sup-
port the General Counsel's contention in this regard. TIhese
allegations should therefore be dismissed as not being sup-
ported by the evidence of record.
i. Threats of loss of henefits
Also in the March 23 discussion with Francis, Smith
stated that as a result of negotiations "we would end up
getting less than what we were making at the present time."
Such clearly is a threat of loss of benefits in order to dis-
courage employees' union activity. Smith thus violated Sec-
tion 8(a)(1) of the Act. As indicated above. I do credit
Francis' testimony concerning the substance of this con-
versation over Smith's general denial.
Similarly in the conversation between Clark and Basham
on April 5, as Basham was indicating the futility of em-
ployees selecting a union, he also told her that as a result of
negotiations the employees would end up making "less
than what you are making now." This, in the context of the
antiunion statements by Basham, amounts to a threat in
violation of Section 8(a)(1).
j. Grant of' benefits
The General Counsel alleges that the Respondent made
certain physical improvements at the facilities here in-
volved and distributed T-shirts to any employee who want-
ed one after the advent of union activity. all in violation of
Section 8(a)(l).
J. Kevin Murphy testified that one of the things that he
ordered to be done upon taking over as president in Janu-
ary, and having personally inspected the facilities not onl,
in Dallas but throughout the country, was that certain
physical improvements should be made so that employees
would have safer, better, and more desirable places in
which to work. Murphy when on to state that plans con-
cerning the improvements complained about by the (jener-
al Counsel at the Logan and Jackson Street facilities were
at least in the discussion stage prior to March I the be-
ginning of any union activity. I credit Murphy. His general
demeanor was positive. His testimony is both unrebutted
and reasonable. I find that in fact the physical improve-
ments to these facilities which the General Counsel con-
tends were undertaken in order to influence employees,
were in fact initiated before the Company had any knowl-
edge of union activity. I conclude therefore that the Com-
pan) did not violate Section 8(a)( ) by initiating the phvsi-
cal iimprovements to the Logan and Jackson facilities.
The same howev.er is not true with regard to distributing
the T'-shirts. Although the Respondent contends that the
T-shirts were worthless and therefore distribution of them
to the employees could not he violative of the Act, I con-
clude otherwise.
During the time in question. Jeff Lewis was the person-
nel administrator for employment. He testified that on
April 19. he found a large box of T-shirts in the storeroom
which were leftover from an "in-house" advertising cam-
paign. On the front of the T-shirts is written, "We Are
Teaching The Old Dog New Tricks." On the back. "Trail-
vavs Ihe Best Bus Going."
Lewis testified that this advertising campaign, the es-
sence of which was a put-down of Trailways' major com-
petitor, had been stopped in the fall of 1977, yet by mistake
the advertising agency had ordered the T-shirts. Thus the
T-shirts were delivered in February and put in the store-
room I ewis found them and determined they should not
be thro,wn awa' and could be put to some good use. He
accordinely took them from the storeroom to his office and
when employees on the elevator asked if they could have
one. he decided to pass them out to any employee in the
corporate offices who wanted one.
Specificall. L[ewis through Smith undertook to offer
each emploece at the l ogan Street facility a free T-shirt.
IThis occurred on April 22. at a time when Lewis and Smith
knew of the organizational activity.
The Company basically contends that since these T-
shirts had been ordered by mistake and were of no value to
the (Company, they were therefore worthless. Thus in pass-
ing them out to employees no benefit was given. I conclude
that being of no value to the Company and being worthless
are not the same thing. The T-shirt is clearly a thing of
value, if only a few dollars. To receive one is clearly a
benefit. The Respondent knew of the employees' organiza-
tional campaign at the time the T-shirts were distributed. It
was not required to distribute the T-shirts when it did and
indeed could have just as easily not done so. Even if Lewis'
attempt was benign. I nevertheless conclude that by offer-
ing the T-shirts to every employee in the bargaining unit
(both the l.ogan and Jackson Streets employees were in-
cluded) in the midst of the organizational campaign, the
Compan!. violated Section 8(a)( I).
2. The 8(a)(3) allegations
a. The discharges
SIhe General Counsel contends that the Respondent dis-
charged Williams. Hudspeth. Hampton. Coleman, and
'Wells because of their union activity in violation of Section
8(a)(3) of the Act. Respondent contends that it was not
unlawfully motivated Rather. all were discharged for
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause-Williams, Hudspeth. Hampton, and Coleman be-
cause of their excessive absenteeism, and Wells for insub-
ordination.
It is elementary that the Respondent can discharge its
employees for good reason, bad reason, or no reason at all,
provided that it is not motivated in part by the employee's
union or other protected activity. Since the General Coun-
sel has the burden of proof in this matter, and since unlaw-
ful motive is critical to a finding of a 8(a)(3} violation, the
General Counsel must establish that the Respondent acted
at least in part with a proscribed motive.
Protestation of innocence by the Respondent's princi-
pals is not determinative of this issue nor is the lact of
direct evidence of unlawful motivation. Indeed, proof of
unlawful motivation may be accomplished by circumstan-
tial evidence, and inferences of motive are permitted. Shat-
tuck Denn Mining Corporation (Iron King Branch) v.
N.L.R.B., 362 F.2d 466 (C.A. 9, 1966).
While an employer may discharge an employee for a bad
reason or no reason, the reason advanced for the discharge
is one of the facts to be taken into consideration in de-
termining whether the discharge was unlawfully motivated.
Thus, where the reason advanced is not rational, such
tends to be evidence that the true motive lay elsewhere.
The corollary of this is that where the cause of discharge
appears reasonable under the circumstances, such tends to
negate the inference of unlawful motive.
Similarly, disparity of treatment is a factor tending to
prove unlawful motive. Uniformity tends to negate such an
inference. For instance, the General Counsel contends that
employees were given more severe discipline for absentee-
ism after the advent of union activity than had been the
case before.
Basically, the General Counsel contends that these five
employees were singled out by management because of
their known union activity and were treated disparately
from others. Thus, I must conclude that their discharges
were precipitated by their union activity.
It should be noted however that simply because one
event follows another chronologically does not imply a
causal connection between them. Thus, union activity of
an employee followed by his discharge does not itself prove
that the discharge was the result of a motive proscribed by
Section 8(a)(3). See, e.g., Kawasaki Motors Corporation
USA, 231 NLRB 1151 (1977); Deven l.ithographers. Inc.,
224 NLRB 648 (1976). Here, I conclude from the totalitN
of the record that the General Counsel has not sustained
his burden of proving that Williams, Hudspeth, Hampton.
or Coleman were discharged in violation of the Act.
I find that they all were discharged for excessive absen-
teeism and that each had been warned or put on probation
prior to the advent of the union activity because of her
poor attendance. I further note that none of these four
individuals was a particularly active supporter of the
Union, even though each did sign an authorization card
and each did attend one or more meetings of employees
away from the Company's premises. In this respect it is
noted that there were other much more active employees
on behalf of the Union, whose activity was well known to
the same supervisors who discharged these four.
Joyce Williams was hired on August 18, 1975. On Juls
26, 1976. she received an employee counseling report which
stated in part, "Our records shows that M. Joyce Williams
had been absent for 16- 1/2 days of I 1I mos. [sic]." She was
warned about her excessive absenteeism. She was again
evaluated on October 18, 1976, with a notation, "For the
period of Jan. I. 1976 to Aug. 18, 1976, this employee has
been absent for 21 days." Such was considered excessive
and she was put on probation with the notation, "and if her
attendance fail to improve, she will be terminated. [sic]" 5
Williams attendance was somewhat better through No-
vember and December, but in January and February she
was off 7 full days and I one-half day. On March II she
missed 4-3 4 hours and on March 18 all day. Hornbuckle
then determined to discharge her.
Apparently to establish that she was discharged for
union activity, Williams testified that on March 15, Smith
asked her if she signed a card, she said she had, and he
said. "Did you know that you would get fired for signing a
union card?" This statement was not alleged to be violative
of Section 8(a)( ) and was offered only to show animus
and company knowledge of her union activity.
Given Williams basically unreliable demeanor, plus the
fact that she also testified that she was not at work on
March 15 or 16. I conclude that this conversation with
Smith did not occur. I further note that nothing resembling
this conversation was included in her first affidavit, even
though she admitted that she was asked if such conversa-
tions had taken place.
I further do not credit Williams because of her very posi-
tive but clearly incorrect answers concerning her absentee-
ism record and the fact that she had been given warnings
concerning this problem long before that advent of the
union activity. Finally. with regard to other matters, partic-
ularly including whether or not she filed a charge with the
Equal FEmployment Opportunity Commission, her answers
were evasive.
On the record as a whole I conclude that Williams'
union activity was very limited. Such as she engaged in was
not known to the Respondent's supervisors prior to her
discharge, and her discharge was in keeping with the
Company's policy to discharge individuals for excessive
absenteeism defined as more than 5 days in 6 months.
.inrebutted business records of the Respondent establish
enforcement of this policy prior to the advent of union
activity. Thus from March 1976 to March 1977, 10 employ-
ees were discharged for excessive absenteeism and others,
who had the same problem, quit voluntarily.
In the discharge of Williams there is no evidence of dis-
parate treatment or any particular basis for concluding
that her discharge wsas not for cause. It was therefore not a
violation of the Act. Federal-Mogul Corporation v.
,V.L.R.B., 566 F.2d 1245 (C.A. 5, 1978).
Pamela Hampton was also discharged by Hornubckle on
March 18. She was hired in August or September 1976.
During the course of her employment she was given writ-
ten warnings on three different occasions concerning her
excessive absenteeism, including a probation on October
18. 1976. On December 1, 1976. an employee counseling
I llihllT adalntl:ll denied hai ll reteCled the O()ctober 18 ealuaion.
aI denial I disrted t I do not heliee, as she laims. that her signature ,as
forged.
662
TRAILWAYS. INC
report noted. "Continued absent [sic] and tardiness will
merit immediate termination." Company records show that
her attendance did improve in January. but nevertheless
she was not given a merit increase. From January 6 to
March 16. she missed 5-1/2 days which, according to the
Company's policy, was excessive.
As with Williams, there is no real evidence that Ilamp-
ton was an active supporter of the Union, that her union
activity was known to management, or that she was treated
disparately. In view of her poor attendance record and the
warnings to her prior to the advent of the union activity,. I
cannot conclude that when she was absent in the week of
March 16 and discharged on March 18, Hornbuckle acted
with discriminatory motive.
Delilha Hudspeth was hired on December I. 1976. and
discharged on April 15. On March 10, she received an em-
ployee counseling report which states, in part. "DIelilah is
having difficulty in meeting the dept. and company volume
of production and attendance standards respectively."
Thereafter she was absent on March 18, 25. and 31. and
April II and 12 and was discharged the Friday of that
week, on April 15. for excessive absenteeism. She also re-
ceived a second apprisal on April 4, indicating that she
continued to have trouble meeting production and atten-
dance standards and therefore was not granted the wage
increase due her on April 1.
With Hudspeth. as with the others who were discharged
for absenteeism, the General Counsel contends that the
Respondent's motive was necessarily pretextious because
the absences were "excused." Her husband was convalesc-
ing from a heart attack, thus she was occasionally required
to be off work to attend to him. On these occasions she
would call in and tell her supervisor that she would be
absent and the reason. Williams and Hampton normally
also called in. General Counsel contends since the absenc-
es were therefore "excused," they could not be discharged
for excessive absenteeism.
The Respondent maintains that whether or not an
employee's absence on a particular day is excused is not
really material to the question of whether or not when an
employee misses too many days of work, such is excessive
The Respondent contends, and the evidence shows. that
the only distinction between an excused and unexcused
absence is an employee off for 3 days without notice is
then considered to have quit, and termination papers are
immediately executed, whereas an employee who has been
excused is not considered to have quit after 3 days. Never-
theless, "excused" absences are taken into consideration
when determining whether or not to discipline or discharge
an employee because of excessive absenteeism. I'hus the
fact that the Company knew Hudspeth was absent on the
days she was and why, does not mean that her poor atten-
dance record could not reasonably be the basis for disci-
pline (withholding a pay increase) and discharge. It does
not appear from the record that Hudspeth was treated dif-
ferently than any other employee prior to the union activi-
ty or nonunion employees after.
Kathy Coleman worked in the mailroom at the Jackson
Street facility. She was hired on June 20, 1976. and dis-
charged on June 10 because of excessive absenteeism.
David Bayless took over as supervisor of the Jackson
Street mailroom from Raymond Crowder when Crowder
xwas discharged on April 15 as a result of the economy cut
back. Crowder. who was subpenaed to testify by the Re-
spondent, stated that he did not have any discussion con-
cerning the Union with Bavless nor specifically did he ad-
vise Bayless that Coleman or any of the other employees in
the mailroom had told him that they had signed authoriza-
tion cards. I found Crowder to be a credible witness and
inasmuch as he has no interest in the outcome of this litiga-
tion. I believe he is generally trustworthy.
Similarly, Bayless testified that he did not have any dis-
cussion with Crowder concerning the union activity of spe-
cific employees nor did he know that Coleman had signed
an authorization card prior to the time he discharged her.
Nor is there an' evidence that ('oleman's union activity,
which was minimal at best. was known to Bayless prior to
the time of the discharge.
In the 2 months that Coleman was under Bayless in the
mailroom. she missed 5-1 2 days. Given the lack of proof
or reasonahle basis to infer that Bayless knew that she
signed a card, that her absenteeism rate was excessive ac-
cording to C(ompany standards, and that her discharge was
not disparate treatment. I conclude that the General Coun-
sel has not established an unlawful motive. Accordingly. I
conclude that the General Counsel has not sustained the
burden of proving her discharge was violative of Section
X(a)(3).
Paula Wells had worked for the Respondent approxi-
mately 6 years and was one of the leading supporters of the
Union. a fact well known to her supervisors. The Respon-
dent contends. nevertheless, that she was fired. not for her
union activitv, but because she was insubordinate to Smith
on June 9
The events leading to Wells' discharge began with attor-
ney Murphs's employee meeting of June 7. Wells heard
that Murphy had been using the contract the Union had
with GCarland Foods to demonstrate that the Union could
not negotiate decent benefits. She thus contacted Benson,
the business agent, to find out about the Garland Foods
contract. And on June 7. when Murphy brought up the
Garland Foods contract, Wells made a statement to the
effect that what was negotiated with Garland Foods would
not necessarily he the same as with Trailways. She pointed
out that Garland was a new company with Black owner-
ship whose employees were mostly Black. At this point.
Murph 5 stopped the meeting with a comment to the effect
that Wells had wrongfully made a race-related statement.
Without getting into preciselN the words used by Wells, the
substance is undisputed.
Ihis. however. was not the reason the Respondent fired
Wells. Rather, the statement attributed to her became the
basis of a Board charge the Respondent filed against the
Union. naming Wells as an agent.
On June 9. Wells was summoned to Harris' office so that
the charge could be served on her. While the parties dis-
agree to some of the precise words spoken, especially by
Smith and Wells. all agree that Wells was told to come to
Harris' office and upon arriving, with Gibson to be her
"witness." Smith told her to sit down. At the same time
Harris was talkinm to Gibson. ad ising her to leave because
the matter was not her concern.
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All witnesses agree that Smith, who is a large man, be-
came progressively more loud in ordering Wells to sit
down. The confrontation lasted a very short time, with
Smith telling Wells to sit down and if she did not she would
be fired. She refused, and he fired her "for insubordina-
tion."
It is clear that the confrontation was initiated by the
Respondent and was directly related to what it perceived
to be Wells activity on behalf of the Union. It is also clear
that very early in the confrontation, which was set up by
the Respondent to be precisely that, Smith became pro-
gressively angered and fired Wells when she did not sit as
he ordered her. For the Respondent's claimed purpose in
confronting Wells, it was necessary for her to sit. Refusing
to do so was clearly not an act of insubordination for
which one reasonably would be discharged. Rather, I con-
clude, Wells' refusal was seized upon by Smith to get rid of
the Company's principal opponent in the organizational
campaign. I conclude the Respondent's discharge of Wells
was violative of Section 8(a)(3).
b. The probations
It is alleged that Janise Willson, Darla Halford, and Syl-
via Cedillo were placed on probation for excessive absen-
teeism because they were engaged in union activity.
An examination of the record evidence shows that in
fact these three employees had excessive absences, and that
they were warned about these absences through employee
apprisals, which was the Respondent's normal way to do
so. There is no evidence, other than the fact that these
employees had signed union cards, to indicate that the Re-
spondent discriminated against them.
Specifically, the Respondent's practice is to warn and
then put on probation employees who are absent excessive-
ly. These employees qualified. I cannot infer that by treat-
ing them the same it has always treated employees. the
Respondent was discriminatorily motivated. Accordingly I
will recommend that this allegation of the complaint be
dismissed.
c. The denial of promotion to Darla Halford
Finally, it is alleged that Darla Halford was denied pro-
motion to Janise Willson's job when Willson took a mater-
nity leave of absence. The General Counsel contends that
Halford had been promised the job which was in fact given
to Donna Meyers.
I find Halford's testimony that she was even promised
the position to be at best vague and not particularly credi-
ble. But assuming Basham had promised the job to Hal-
ford and then reneged, it is unexplained why such was dis-
crimination against Halford because of her union activity.
Halford's only union activity was to sign a card. T he oniy
evidence that the Respondent knew this is Clark's state-
ment to Basham that all of the girls in her department had
signed cards. Inasmuch as Meyers was also one such indi-
vidual, if Clark's statement to Basham infers company
knowledge of Halford's union activity, it must also infer
company knowledge of Meyer's. There is, in short, no sub-
stantial evidence to support the conclusion that when Bas-
ham determined not to transfer Halford to Willson's job.
but instead chose to transfer Meyers, that he was doing so
with a motive proscribed by the Act. Accordingly, I will
recommend that this allegation of the complaint be dis-
missed.
IV IHI[ RFPRESIENI AtION PRO('EDING
A. The Obhections
The Union filed 15 separate objections to conduct af-
fecting the results of the election. These objections general-
ly track the consolidated complaint herein, and the
Union's representative at the hearing indicated that he
would present no evidence of any activity subsequent to
the events alleged in the complaint, nor did he do so.
Most of the activity engaged in by the Respondent al-
leged to be unlawful occurred prior to March 24, the day
the Union filed its petition. However, sufficient occurred
subsequently to require setting aside the election.
Specifically, the discharge of Paula Wells for her known
union activity goes to the very heart of the Act and consti-
tutes grounds for setting the election aside. G. P. Putnam's
Sons, In ., et al., 226 NLRB 1256 (1976).
Similarly. the interrogation and threats engaged in by
the Respondent's supervisors, particularly Dodd, Smith.
and Bayless, subsequent to March 24 are, in myjudgment,
sufficient to require setting aside the election.
The Respondent contends that this is the case of first
impression, because of the newly adopted vote-and-im-
pound procedure, and that as a matter of policy one of the
two cutoff dates should be established -preferably the lat-
ter. Essentially, the Respondent aruges that in review cases,
the Board should establish a fixed date, closer to the elec-
tion than the filing, before which conduct would be
deemed too remote to affect the results of the election.
At the outset it does not seem particularly material that
an impounded-ballot election was directed pending the
Board's determination of the unit issue. Had no such elec-
tion been directed there still would have been a longer pe-
riod between the filing of the petition and the election than
would have been the case had the Board denied the request
for review. Such is always the case where review of a Re-
gional Director's decision is granted. The vote-and-im-
pound procedure is a change only where the Board affirms
the Regional Director's decision. Where that decision is
reversed and an election directed, as here, in an expanded
unit, then the impounded-ballot election is a nullity.
Nor is an impounded-ballot election declared void anal-
ogous to setting aside an election because of objectionable
conduct. In such a case, the critical period for considering
conduct affecting the second election is cut off at the first.
The Singer Comparn,. 161 NLRB 956 (1966). But the pre-
first-election conduct has been litigated and its effects dis-
sipated before the second election is set. Such, of course, is
not the case here. Conduct prior to the impounded-ballot
election could not have been alleged objectionable to the
Board because no Tally of Ballots issued. See Sec. 102.69
of the Board's Rules and Regulations, Series 8, as
amended.
664
665
Thus here there is unremedied conduct. sufficient im
character to warrant setting aside an election. but hlich
the Respondent argues is too remote to be consideredl. as a
matter of law.
In The Idceal Electric and Malnufalturing ('onilm. 134
NLRB 1275 (1961)., the Board held that the critical period
for considering preelection conduct was the petition filing
date. Research has disclosed no case since where the Board
has set a different cutoff date. To the contrary. the rule in
Ideal Electric is not inflexible, the Board ha,,ing in the ap-
propriate case considered prepetition conduct in setting
aside an election. See, e.g.. C(onsolidted Foods (o.. 234
NLRB 178 (1978).
Nor does "equity and orderly administration" of the Act
necessitate varying the basic Ideal Electric rule in reie ew
cases. Here the Respondent engaged in substantial unfaii
labor practices, including the discharge of a principal
union activist. The Respondent now contends that because
it sought review by the Board. and therebv initiated the
inevitable delav in holding the election, that its otherwise
objectionable activity should be foreclosed from consider-
ation as to whether such affected the results of the election.
Here there was more than a 4-month break between the
last objectional act and the election. While such a hiatus
may be considered in determining whether the conduct
was too remote to have affected the results. 4est 'exa.s
Equipment Company. 142 NL RB 1358 (1963). it is onl, one
factor. The nature of the conduct must also be considered.
I believe that the type of unremedied unfair labor practices
here-interrogation, threats, and the discharge of a leading
union supporter is activity which necessarily has a chill-
ing effect on the employees' freedom of choice, and the
mere lapse of 4 to 5 months is not sufficient to cure the
effects.
For these reasons, I reject the Respondent's argument
that a cutoff period different from the filing of the petition
should be adopted, or that here the lapse of time made the
conduct too remote to be objectionable. Accordingl) I w ill
recommend that the election of October 28 be set aside and
that a rerun election he held when the Regional Director
deems such to be appropriate.
B. The challenged halloIs
As indicated above, there were 35 challenges. 12 b, the
Union and 23 by the Board of employees who were not on
the eligibility list. The Union. having withdrawn its chal-
lenges, renders the determination of the others moot in that
they would not be sufficient to alter the results of the elec-
tion, even if challenges to all five of the alleged discrimina-
tees were overruled.
V. I IF FFI E- (l O1 ltl I N1 SIR IAB()R I'R \( tilS I P(ON
( OMMlR( I
The activities of the Respondent. set forth above. occur-
ring in connection with its operations. have a close. inti-
mate, and substantial relationship to trade. traffic. and
commerce among the several States and tend to lead to
labor disputes. burdening and obstructing commerce and
the free flow of commerce.
Xi1 111 Ri:11 1D)
laling concluded that the Respondent engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act. I will recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action. It will be recommended that the Respon-
dent be ordered to offer Paula Wells reinstatement to her
former joh or. if that job no longer exists, to a substantially
equialent job. without prejudice to her seniority or other
rights aind privileges. and to make her whole for any loses
she suffered as a result of the discrimination against her in
accordance with the formula set forth in F It'. W'oolworth
( 'oen1/patin. 90 NI RB 289 (1950), and Florida Steel Corpora-
tion, 231 Nl.RB 651 (1977).'
It will also he recommended that the election conducted
on October 28. 1977. in Case 16 RC-7476 be set aside and
that the matter be remanded to the Regional Director for
Region 16 for the purpose of conducting another election
at such time and place he deems circumstances permit the
free choice of a bargaining representative.
Based upon the foregoing findings of fact, conclusions of
law. the entire record in this matter. and pursuant to the
provisions of Section 10(c) of the Act. I hereby issue the
following recommended:
ORDER
The Respondent. Trailways. Inc.. its officers, agents,
successors, and assigns. shall:
1. (case aind desist from:
(a) Interrog;ating emploNees concerning their interest in
or acti\it, on behalf of the Uinion or any other labor orga-
nization.
(h) TI hreatening discharge. plant closure, or other loss of
benefits should employees select the Union as their bar-
gaining agent.
(c) Promising employees wage increases or other bene-
fits should then abandon their interest in the Union.
(d) Giving the employees the impression that it would
he futile for them to continue their organizational efforts to
select the Union as their bargaining representative.
(e) Giving employees T-shirts or other benefits in order
to influence their interest in or activity on behalf of the
Union.
(f) Discharging or otherwise discriminating against em-
plosees because of their interest in or activity on behalf of
the Union.
(g) In an\ other manner interfering with, restraining, or
coercing employ)ees in the exercise of the rights guaranteed
them b\ Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Paula Wells immediate and full reinstatement
SIc emVelTliC s Ik .'..P .. l.. 5 lItmg I Io. II Nt RH .11 %1?2i
Inl~e~clii,' ce-lwnI ar e fld eli,4 prostaed hs Se. 102 46 ot the
Rulec4 te RteKuitiiiof 1he 5% Ninal I ihor ReKI~ti)n, Burt, [he findings
t'li.h i- 11. d ro, trIlkiieca Oirder here inhall, a, prsvided In Sec
Ill'48 if Ili Rules md Rei ,2LI~011 he Jpiuea hN the B,,.trdanjd he,:rne
it, tirlt r~ 41116'lol U ni Order, aTd all ohleolI,n ihereio hritll he
dicctted 4,i4,1d itr al ptirp-c,'
TRAII.WAYS, IN(
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her former job or, if that job no longer exists, to another
substantially equivalent position of employment and make
her whole for any losses she may have suffered pursuant to
the provisions set forth in The Remedy section above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Dallas. Texas. facilities, the attached no-
tice marked "Appendix." 8 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS FURrHER RECOMMENDF) that the election held on Oc-
tober 28, 1977, in Case 16 RC-7476 be, and it hereby is,
set aside and that case is hereby remanded to the Regional
Director for Region 16 for the purpose of scheduling and
conducting another election at such time that he deems
circumstances permit the free choice on the issue of repre-
sentation."
In the event that this Order is enforced hb a Judgment of ;a nited
States Court of Appeals. the words in the notice reading "Posted bh Order
of the National Labor Relationr Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
9The UInion asked that the Regional Dlreclor he diretied lo hold a hen;lr
ing on the composition of the unit. An) motion to such effect is mnre
properls directed to the Regional D)irector
APPENDIX
Nolctt To EMPi.OYF.ES
Posilt) BY ORI)IR o01 tHl
NAtiONAL. LABOR REtLAllONS BOARD
An Agency of the United States Government
After a hearing in which all parties participated and were
given the opportunity to call witnesses, to examine and
cross-examine witnesses, and to present evidence, it has
been found bNy the National Labor Relations Board that we
have violated the National Labor Relations Act. We have
been ordered to stop such activity, to post this notice, and
to abide by its terms.
W i i. Not interrogate our employees concerning
their interest in or activity on behalf of International
Union of Operating Engineers, Local 714, AFL-CIO.
or any other labor organization.
Wi: wll t NOI threaten with discharge, plant closure,
or other loss of benefits of our employees because of
their interest in or activity on behalf of the above-
named or any other labor organization.
Wi: ,i .i so promise wage increases to our employ-
ees in order to get them to stop their activity on behalf
of the above-named or any other labor organization.
Wi wiit Not tell our employees that it would be
futile to select the above-named or any other labor
organization as their collective-bargaining representa-
tive.
Wti \l1.1 Not grant benefits to our employees in or-
der to persuade them to stop their activity on behalf of
the above-named or any other labor organization.
Wi Wii.i notify our employees that they are free to
engage in union activity on behalf of any labor organi-
zation. or engage in other concerted activity for their
mutual aid or protection, or to not to do any of these
things.
W lI wl.l offer Paula Wells immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position of em-
ployment, and WrE wn.L make her whole for any loss of
wages or benefits she may have suffered as a result of
the discrimination against her, with interest.
RAIl WAYS. IN(
666