Transportation Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1979

240 N.L.R.B. 551 (N.L.R.B. 1979)

TRANSPORTAIION ENTERPRISES. INC'. 551
'ITransportation Enterprises, Ine. ad Amalganlated
Transit lnion, IAwKal 1549. (Cases 23 ( ;X 6359. 23
(A ,499. 23 (A 6543. and 23 (A 67X7
Februarx 5, 179
[)D(CISI()N AND (O)RDI)
BY (11 IRMA \:N I:\NNIN(; NI) M xl 1Bti RS .11 NKINS
NxI) M R1
On September 27. 1978. Administrative La Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter Respondent filed exceptions
and a supporting brief, and counsel for the General
Counsel filed limited cross-exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(hb) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to it three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions. cross-ex-
ceptions. and briefs and has decided to affirm the
rulings. findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der.2
Respondent has excepted it cerlailn cercllhtli l findrln made .d h! the
Adlnlnlilralise Lau Judge It is the Board' established pohx l I \e-
rule .an Adninlxirati.e L.i JudgeX's resolilons ith rcpc.l I rcdhlllix
unless Ihe lear prepeonderance of all] f lihe relce.ltn ex ideicc Idell nc i\
thal the resilutiom, are incorrect tiandlard /)il litl[ Pri i, /I1 ' 9I
NIRB 44 1950. enfd 18X I- id 1623d ( 'r 1951) .e Ih.itC .lrctll.
exin ted l he record and find n hisi fr rextin e hi f*lIitlx
Ai ne point in hi, DI)ecitli. Ihe I AdrIii f.IIi e I .11 ilreC I:li ltCit l\l
stlated that Re,,pondcil' pli.N thane f lin,.ig i, drer o i, hd (ll xnb\
,ine shift occurred in April 1977 his hlouid hIi.ie read l,. I7 1'77 11 111,
dslsuslon if Respondent',il aleclaolln f trlike IlllCoItIdit h eClipI.Ice
I1ikc IWare, the AdiIItr.IIaIe i sI Juldie ,C IillcCd dlcillul. i ill Ie1C ICxII-
nioii eliciied hb% Rexporinden ll l fro nltric I n-o1n Robehcils MIxcxcr cn
accepting Roberts' :laclunl o his enioullnter lih Ware .e hlhcxe thai hie
record eslabhlishs ils thil \are .i s inl.o.ed ill iino r cufficS f hiorl
duratln ( neuquenlll . e frlilll t.he dnmi, lrac I a.1 IuClec's fIImdicI
thal \arc wax eltilled o relnililenrtelll [ tic the l IIc liildlitiri imill otlet
I return a;1, IIhnliCed
Respondeni exceptls I the dlnritlllie I .Jldlvex f1idltl 11.lit it
vitllated Sec. 8(t)(I) Iof the Ac\ l hIs ifferl e teA drlrelr . r.le of p1 il1
excess f the rte pc fied n the tIhen-effectcle cilleclle-hre.iiintn lee-
menlt and hat ;alid nf.ir lahlbr pra;tiLe csliiilcuted :i grlnlflc.lll 1i1l iuh-
slantial factoir n ca.sIII Ihc e ikc l llcniln 11g II Sepernlhllii i. 1'7(6
Respindenl conteld, h.l e Co-lllomlC dlfrcrl ,: , rrrt c ..he 1,tl rcl.1 f lic
strike and thal, n ains eclt. the ialIt XlO;l tio1n I;Tdllld .1,ioIc foei [i1i
prsic a sufflicmenl hasis fr finIng the strike 1 he ;1 iniifr lhabor ilcti.C
srlikc In ur opinilon the ecldence hundill, etah.lihes hbIt Rexpoillell
a;ls eilgaged in a prlllteedl C;ipallllgn directed aIt deilrolln I c il ili',
support aimong unil ellnplieex. I ftls. fr.t tIe ti Rpoudcitll prcxcnlecd
it, nitil ffer cosering ecottrinie oilc r Juls 1 117(lil,. Rcpindetl'
coindtell A;as hlatantl, dllrected a1t Il Cl1 trlTllllll I [ IIIII'I rptlxllllrl .It h1 e
bargaining table h naking tl ppear thi the t nin h1.1 i hargl Itle
rights Respmondent's lack f ntleresl in pirsillcrg iid-fa.llll iltmi i.1iti I
demonstrated hb a eriel, of lacL. icludllni te inlullt.ancoti, cIlii if xt
initial w;age offer It) all it cmrilp-eex, ltci ttc 1irne the ffer ,,,x rniha1
presented Io the 1 nu1n. the in, itlrine f enrlpl.ecs n1 t t he Ih liix h.Lr-
gaining comnllittee I Ithe Juil 3 h.ir.Ill,:nll c xcxlll 'c here clil .omllC
240 NI.RB No. 74
ORI)DER
Pursuant to Section 1()(c) of thel Nlational l.abor
Relations Act, as amendled, the National ;laboi Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereb,
orders that the Respondent. Trainsportation lniter-
prises. Inc.. Austin. Texas. its officers. agents. stLCCes-
sors, and assigns. shall take the action set forthi n the
said recommended Order. except that the attached
Appendix B is substituted for that of the Administra-
tive Law Judge.
propoal ,nis [ir l prce ilced. tcllhc ., L c ll il tl t l I it I lstx , it
Imxl' nensparpe to Iltll .lCe h,.lr,llliC II I * 1.h dlld . i fljril r\ tihe
Adnlinirhit i st II nNe I in I id ie I nd ,crIIrtI foi[ .l id II Ii I II C, Ci en lpI
at UIage r.tle In ex sc ,i f lIle r;lie pe ifilt1 I llle i. lli, tch ,ir. iitIch
agreernllent less Ihill .1 eck .lter Rcporildcll', llt [ pI)('te.lll.ii[ -I t,
econonllil prop, txal M re-scr., uc ilxl te , iii .i p rlal', dIcfctic r.lll-t Ix
Respondenl to Ihe ;llecitl ln thit I1 unilutcr.l l 11 i l lp ,, i t I . .icC ill-
erease iulllaled the I .\t A 1a, 1 .11ta in ltlnp Xl C ,lCd iti ll Ct i ll ,l lD
norla.lI a dcfcTic tx, i in (l .i Illea , iell r 1Ill ol plli ii Rep I lrlcI,, .dI
acutel, Ia.irc o[ I he iatanien of ile i ,.fre nhtlr nere .Ilecd i rl uid
th haxe cn.ered It' enmplv.Cea' liklt LII llflmf lhir 1 Icc [rllke
A.cordlingl. it .affirmimg the dnilirliltii.C ta Jdiutge', ti'lrtlln1 .,t
unfair labo r pril IIc xirikc. we ,Ire relMr I )ll. l .shl Ricll l l d -
.s rlhe, ai ; techrl.ll 8X ( It I 1i ollton hiil ailler in .1 clearl\ d icrll illi[,li.
pattern f tlprolper cntidu.t hich priided eelltldl iippi-ri 1lt It/ \d-
nlinstrall c I a, Judglc' findrlne Iha1 Re,prOndc nI ,i1.,itCd SC L SI ,1) i(
the .Act
A PPLN )IX 13
No (I I(T r( iliito is
P()lSl Il) it ()RliR ()1 Ilit
N \ lo s\I xioR RI I I i)s Bo xRi)
Aln , \e-:ncx of l hc t nited States (i;ox crilmnt
Wi wi.ll Not discourage membership in
Amalgamated Transit Ulnion, Local 1549. or
any other labor organization. by refusing to re-
instate or otherwise discriminating against em-
ployees with regard to their hire, tenure. or any
other terms or conditions of employment.
VC) \Il o)I offer. promise. and or pa't new\
trainees or drixers an hourl rale of pa\ in ex-
cess of the rate set in the bargaining agreement.
W\i WIII ()I threaten to discharge emploees
because of their uniion activit\.
Wi \lii x-iNlI make an further unillateral
chalinI'es.
t. x1 ii No)I ill an' other rmanner interfere
w ith. Iestrain. or coerce our emplo'ees in the
exercisC of their rihlit to sclf-orgtaiationll. to
form. join., or a ssist labor organ iza tons. includ-
inl the I'nion herein. to bargain collccti el
through a baraininl acent chosen h our em-
plovees. to engatige in concerted activities for the
purpose of collecti e bharailni or other mutual
552 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
aid or protection, or to refrain from any such
activities.
W-. w I bargain collectively, upon request,
with Amalgamated Transit Union, Local 1549.
as the exclusive representative of all the emplo-
ees in the bargaining unit described herein with
respect to rates of pay, wages, hours, and all
other terms and conditions of employment and.
if an agreement is reached, embody it in a
signed contract.
Wl wil 1. offer immediate and full reinstate-
ment to their former jobs or, if such .jobs no lon-
ger exist, to substantially equivalent positions.
without prejudice to their seniority or other
rights and privileges previously enjoyed. to all
our employees who participated in the strike, as
named in "Appendix A," and will make them
whole for any loss of pay they may have suf-
fered in accordance with all the provisions
herein.
Wli w.l. offer Chester Slimp full reinstate-
ment and make him whole for any loss of pay in
accordance with provisions herein.
Wti wll.l. restore the dress code as it existed
prior to June 7. 1977, and rescind all warnings
given to Slimp subsequently thereto.
Wt. wtll. permit employees to bid on jobs for
more than one shift as the practice existed prior
to the strike.
WiF wi I permit negotiation sessions without
taping such meetings.
Wli wii l. furnish to the Union necessary infor-
mation on unit employees, including all written
disciplinary actions taken against them.
TRANSPOR IA [ION EN I ERIRIS.S. IN(.
DECISION
SIAIlMENi O lI: CASI
PHIi W SAUNI)URS. Administrative Law Judge: Based on
several charges and amended charges filed by Amalgamat-
ed Transit Union, Local 1549. herein the Union or Local
1549, complaints were issued on June 21 and on December
15, 1977, against Transportation Enterprises, Inc., herein
the Company or Respondent, alleging violations of Section
8(a)( 1), (3), and (5) of the National Labor Relations Act, as
amended. Respondent filed an answer denying it had en-
gaged in the alleged matter. Both the Respondent and the
General Counsel filed briefs.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor.' I make the
I he ac;lh ,, found herein are based on the record aI, a Chole 111up1 I xI
ohser altirln if the wilnesses. Ihc r'd-blh, lt rrslitll/l ,ii lit,,,il,. h I,-bur fd
rthie tlog prt .A hrle ![ ,i'tlll' l1c, nolt irt d ...l .u dt ii hb a. lt -glm,lu
for the I.,L't,. if rohablhn i. the ,'ltl, lt,) ojr [It i t tliut-,¢, . l l [, t' l tch ite t
following:
FININ(iS ()F FA(C
I lll BSINESS OF IHt. COMPANY ANt) IHF JRISI)I(CIIIONAI.
ISSUEF
Respondent is a corporation duly organized under the
laws of Texas with an office and place of business in Aus-
tin. Texas, where it is engaged in the business of providing
certain bus transportation services in the transit industry.
During the last fiscal year, the Respondent received gross
revenues in excess of $250,000 from the operation of its bus
transportation services in the transit industry of its Austin,
Texas, place of business.
The Respondent maintains that the Board lacksjurisdic-
tion over its shuttle bus service in Austin. The bulk of the
Respondent's business at its Austin terminal, the only one
involved in the proceeding, is generated pursuant to its
contract with the University of Texas for operation of a
shuttle bus service in Austin for transportation of univer-
sity students, faculty, and staff. The Respondent contends
that the drivers who are engaged in the University of Texas
shuttle bus operation should not be included in the unit
because the Company in this respect shares the
University's exemption from the Board's jurisdiction. As
has been pointed out, the University of Texas shuttle bus
system is operated pursuant to a written contract with the
board of regents of the University and is for the exclusive
use of the faculty, students, and staff of the University. The
contract specifies the type of buses to be used, gives the
University the exclusive right to determine all routes, and
requires the maintenance of records reflecting the number
of buses operated and routes served. The Respondent ar-
gues that the foregoing facts demonstrate that the provi-
sion of the shuttle service is so intimately connected to the
proper functioning of the University, that the Company
should be exempted from the Act's coverage.
In early October 1976, an RC Petition was filed by the
Union, and on October 29, 1976, a hearing was held before
the Board in Case 23 RC 4446, wherein evidence was tak-
en concerning the operations of the Company to determine
whether or not the Board had jurisdiction over the Respon-
dent. On June 6, 1977. the Board issued its decision, Trans-
porltation Enterprises, Int,., 229 NLRB 1248, finding that the
Respondent was not exempt from the coverage of the Act.
and also ordered a Direction of Election. On July 15, 1977,
the election was held, and on July 25. 1977. the Union was
certified as the bargaining representative of Respondent's
employees in a unit consisting of the following:
All drivers and maintenance personnel at the
Respondent's facility in Austin, Texas, excluding of-
fice clerical employees and supervisors, as defined in
the Act.
I, l I t R in 1t[,t Wlierai/ae Ad l tq . I. 1 all . itill
rilc Hhlic She rClll.lllldcr r IhC icrlllp .c "i i t ,I nl l11kilc tII t 1Ic II i 1111lt
%ttg rI.it ltil er The hiil lillll I. S lll l 11t11 Ih Cl l I C .i .li t.1 1L'd 11 iSx.
Ro,, R,;l~,lnllld I.lllliC, th,, ll lm C l[.llllC. C ItCc, lc d 51 ti[ ]llH .1 Cl \
ItllS[ J J)7( 1, ir ) 1 [II a l o l I Il l lie .11 hI 1 thei Ctlp 'll C c Oil Iht
r;ate i,, {f \ull l |J1 1976i
sions. might have resulted in agreement. This seems espe-
ciall likel in the instant case, since the parties had agreed
on almnist all of the noneconomic issues. as st;lted above I
am persuaded that in August 1976. when Respondent insti-
tuted changes in starting ages. negotiations had not
reached the point where there was "no realistic possihilitl"
that continuation of discussion would ha e been fruitful.'
Mloreover. the bargaining contract contained no pro, isions
a;s to the wage for trainees as such and in August 1976.
the\ were paid $3 per hour even while in training. Further-
more. there is nothing in this record to show that wages of
trarnees were discussed at any time during the negotiations.
As pointed out, the Respondent's act of putting the wage
increase into effect at or about the same time it made the
proposal to the ULnion was clearly designed to undermine
the UInion as the bargaining representative of its eplo!-
ees. Respondent made the I Inion one offer. and it A as the
final offer. The Union said let us stud' it and get back with
u. alnd the parties had some subsequent discussions on it.
but the proposal as ne er aigreed upon. SimultI;lncieousl
vwith making the offer to the IUnion the (omnrpan? also
started up tile machinery to put the age increase into
effect. I agree that the (ompany's conduct was designed to
make it appear that the Union had no bargaining rights. In
further amplification of this design the Respondent e en
published in the newspaper what the wages would he. Ii
the final analysis, the Company informed prospective and
new employees that the wage rate would be $3 per hour in
spite of a different rate for starting emploees in[ the collec-
tie-hbargaining agreement hich wIas then ill effect. The
I nion was forced to either agree to the compan -proposed
'wAages or not agree and go on strike. The Union chose the
latter.
It is further alleged that on or about September I. 1976.
l'erminal Manager Ross Raymond told employees that if
the, observed the strike they would be fired. Dispatcher
and Supervisor Joe Jackson testified that a day or so before
the strike on September I. 1976, an employee, Bill Rice,
caime into the office and informed Manager Ray mond that
he was going to honor the picket line the next da; a;nd not
shoa up for work. and upon the conclusion of his remark
Rai mond then told Rice, "ine. You just quit." Ra mond
recalled this con ersation hut explains that Bill Rice as
not a member of the unit, inasmuch as he was a Southvest
1exas bus driver. and that when he replied to Rice his
inqulr was more of a question-"you mean ou quit'""
'Ihe Respondent argues that Rice was no a shuttle dris er
but a;is dri ing the Southwest exas route and that he wkas
n(ot member of the bargaining unit. nor was he covered
bh the contract. Moreo, er. it argues that Jackson's testi-
lioin is questionabhle and tht at the time the staltenelll
%ais aIllgetdls made o other bargaining-Lunit emlploccs
eare in tile ffice.
%I ~. it. J ,ltlictl' 'td /,awf-t t Il , t ,it'Jbl , ()2 % 1 R11 1.
( l' Ih B1 Ii l i , 1 , xl,,[Ct
Il.c It[ril III1'"'' HlllplCx tlhI., dth i'll .c 11. 1111 1 - f1 .1. .1 to 1o l
Ldi itat , r riICiC[ t CirHlit' h Iir t[ t ' ia ait lr¢ Io airee , [l ',I lut ke
\I,,, ,1i the r ln lr\ 5.1ti of1 1 111 h.h;llelll.L 1, 1..w I\' r 1111l-1i1112 1o'
1llmtspt i 1 il C 6C C-,ll l ilil0C[ )ll ll,i d s it'Il h c.. .\cl [ll it.l IIt
I I I I,: :' /1t/ 1/s, ,/,J ,:,,',: (,. ,~ '/ Ix t¢ 1?' I " . ¢,? ¢CS,. 4I l Sl
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As pointed out, Respondent takes the position that Rice
was not a member of the unit. However, this record reveals
that the Respondent had agreed with the Union to extend
the bargaining-unit to cover all Austin-based drivers. On
another occasion, Rice had even discussed this matter with
Union President Moore, who told him that he was in the
bargaining unit based upon the agreement with Raymond.
This record shows that Raymond had the authority to
make agreements, was delegated the authority to negotiate,
and had full authority to bind the Company. In the final
analysis, the evidence is clear that Bill Rice was an employ-
ee of the Company, and, in view of the credited testimony
of Jackson and the circumstances involved, the statement
by Raymond to Rice on the occasion in question must be
deemed a threat to discharge.
It is alleged that the strike starting on or about Septem-
ber I, 1976, was caused and/or prolonged by the unfair
labor practices of the Respondent noted above. It is the
position of Respondent that even assuming, arguendo, but
not admitting, that any of the conduct as alleged violated
the Act, such conduct neither contributed to nor was a
factor in the decision of the Union and its members to
strike, and that the evidence in the record shows the strike
was called because Respondent failed to accede to the
Union's wage demands. It is further argued by the Respon-
dent that there is no causal connection between the alleged
unfair labor practices and the strike; that the implementa-
tion of the wage rates had no effect on the decision by the
Union to strike; and that the real issue between the Re-
spondent and the Union was economic-more specifically,
the Union's attempt to reach parity with the Austin Transit
drivers with regard to wages.
The Company considered the strike to be an economic
strike, and, in accordance therewith, strikers were called
back to work only when there were positions available.
It should initially be noted that the Union did have a
meeting of its membership on August 5, 1976, wherein a
"standby" strike vote was taken. Roger Moore explained
that in order for Local 1549 to be eligible for strike benefits
from their International Union it was necessary for them to
take such a standby vote in order to get approval for such
benefits. It is also noted that during the days leading up to
the September strike the Company placed want ads in a
local newspaper advertising for new drivers. Such ads ran
on almost a daily basis, starting in late July 1976, as indi-
cated previously herein.
The Union introduced testimony through Roger Moore
to the effect that at their union meeting on August 31,
1976, the membership was informed of the economic de-
mands the Union had made upon the Company and also
of the profit-sharing plan the Company had suddenly an-
nounced in May or June 1976, without consulting with the
Union, which, according to Moore, was nothing more than
a subversion to hinder the Union's attempt to gain other
economic benefits besides wages. The membership was fur-
ther advised that the Company had mailed out invitations
to certain drivers to attend the July 30 negotiating meeting
and that the press had also been invited to that meeting.
The membership was reminded that the Company had
started hiring new employees earlier this summer (1976)
than in prior years. They were also advised about the ad-
vertisement the Company had run in the papers publishing
the fact that new hirees would be hired in at the rate of $3
per hour, which was more than the rate required by the
current contract. It was further explained at this union
meeting that the Company was asking newly hired people
in their training sessions if they were going to join a strike.
Moore stated that all these factors indicated to the Union
that while the Company had been meeting and talking
about a new contract with them, there had never really
been any intention on the Respondent's part to reach an
agreement-"that there had simply been an intention to
force us [the Union] into a strike and then replace us once
the strike began." By secret ballot, the membership voted
96 to I in favor of a strike.
The Company made its initial economic offer on July 30.
1976. and between then and August 4, 1976, the Company
was advertising for new employees or drivers at the rate it
proposed in its offer. In essence, the Respondent started
hiring and training people at its new rate and doing so as if
no labor organization was involved. The purpose of this
conduct was obviously to undermine the Union's status as
the employees' representative. Considering the situation as
it existed on August 31, 1976, the Union was justified in
striking to protest the Respondent's unlawful granting of
pay raises, its advertising for new employees at a greater
rate of pay than that required by their contract, and the
refusal by the Company to give the Union an opportunity
to bargain over the pay proposal before implementing it.
The Board has consistently held that a strike is an unfair
labor practice strike if the unfair labor practices are a con-
tributing cause. They do not have to be the only cause. The
unilateral changes, and especially the increased wage rates
to new drivers or trainees before any impasse was reached,
are, of course, unfair labor practices, and needless to say
such conduct substantially broadened the differences be-
tween the parties and was definitely a most significant and
substantial factor in causing the strike. This record is re-
plete with substantial, credible, and undisputed evidence in
substantiation thereof.9
Since I have found the strike to be an unfair labor prac-
tice strike. all of the strikers were entitled to immediate
reinstatement on December 22, 1976, when the Union
made an unconditional offer to return them, even if, to
accommodate them, the Company had to discharge striker
replacements. The Company's refusal to reinstate the strik-
ers on that date also violates Section 8(a)(3) and (I ) of the
Act.
It is alleged that on January 25. 1977, the Respondent
I he (;eneral Counsel further contends that the Respondent's unfair la-
hor practices did prolong the strike and points to Keller's statement in his
advertisement of September 8. 1976. Aherein the ('ompan 5 considered that
the strikers had quit their johs and to an article in the Dail lexan on
Septemher I1 1976. the das the strike started. wherein Keller was quoted as
ta! ig. "Striking drivers will he terminated hb Ihe (C'impans." Moreoer as
also noted h the General Counsel. the nion attempted to get the Respon-
dent to meet land bargain after September I. 1976. hut Respondent gnored
all such efforts. Iherefore, argues the General Counsel. if the strike ,as not
a UilP strike at ts inception. it was conserted to ne hb the Respondent's
threats to discharge. its declaration that the Union no longer represented its
enmploees, and its failure to meet and bargain with the nion I need make
no findings on these contentions since I hate found that the strike was all
n lair lshur practice strike it Its inceptilon
TRANSPORTATION ENTERPRISES, INC. 557
refused to allow the employees or strikers to return to their
jobs and discharged 13 of them.
On January 25. 1977, the Company rebid their shuttle
bus driving jobs on the basis of vacancies. This is the
method used by the Company to set up its schedules for
each semester's bus service at the University. The employ-
ees, including the strikers, were notified to report for bid-
ding on this date, but when the employees appeared for
their work assignments 13 strikers were handed letters stat-
ing that they were discharged by the Company for strike
misconduct. However, on April 16, 1977, the Respondent
rehired or offered to rehire the employees they had dis-
charged on January 25, 1977, for allegedly engaging in
strike misconduct.
The Respondent points out and maintains that the re-
placement drivers or "strikebreakers" were constantly vili-
fied and cursed by the strikers during the entire tenure of
the strike, that such vilification and cursing took place at
specified points around the University of Texas campus.
and, moreover, that as a result of this constant harassment
it was even necessary in October 1976 for Respondent to
seek relief in the State District Court of Travis County by
obtaining a temporary restraining order and injunction
against the Union and certain named strikers."
In Coronet Casuals, Inc.. 207 NLRB 304 (1973), the
Board noted that serious acts of misconduct which occur in
the course of a strike may disqualify a striker from the
protection of the Act. Thus, strikers have been denied pro-
tection when they seized the employer's property or en-
gaged in acts of "brutal violence" against a nonstriker. But
the Board further noted that not every impropriety com-
mitted during the course of a strike deprives employees of
the protection of the Act, holding that pickets were not
disqualified from reinstatement despite participation in
various incidents of misconduct which include using ob-
scene language, making abusive threats against nonstrikers.
engaging in minor scuffles and disorderly arguments, mo-
mentarily blocking cars by mass picketing, and engaging in
other minor incidents of misconduct. That "impulsive be-
havior" on the picket line is to be expected, especially
when directed against nonstriking employees. Moreover, in
determining whether reinstatement should be ordered, the
severity of the employer's unfair labor practices which pro-
voked the dispute must also be balanced against whatever
misconduct may have occurred."2
The Company contends that striker John McCray was
discharged for strike misconduct involving a threat by him
against other employees with a tire tool. McCray testified
that on the occasion in question he was the only person on
the picket line when a carload of nonstriking employees
I'On this date. 12 of the returning strikers did successfull bid for the
vacancies then available. ;p until January 25. 1977. there appears it have
been very little driving aailable. as the nlrsersit was on it, winter s.aca-
tlon break.
ii See Resp. Exhs. 22. 23. and 24
2 Upon review of this case it might well be argued that bh rehiring on
April 16. 1977. all he strikers discharged for strike misconduct the (Com-
pans condoned whatever misconduct was insolved. if an\. and hereforc
that the consideration of each striker's actions on the picket line or in he
vicinity of the lUnlersit is unnecessary. However. noi such theors w;las d-
vanced or adopted hb the (;Gneral (Co unsel. and as a result will hriefis
discuss each situation
drove past him and there were verbal exchanges. Subse-
quently. two of the nonstrikers came back out and told
McCray they were tired of listening to him and were going
to "beat him up." At this point McCray displayed a tire
tool and started backing away, at which time one of the
nonstriking employees pulled off his belt, the other one
picked up a coke bottle, and both then "came at" McCray.
However, no damage resulted, as Respondent's terminal
manager, Tom Yelverton, broke up the confrontation be-
fore any blows were exchanged.
The Company contends that striker Mike Croes was dis-
charged by the Respondent for assaulting a replacement
bus driver, Jeanne Cearley White, by throwing a cake in
her face. Croes denied that he ever dropped a cake on
White's head but admitted that he did call her names such
as "bitch" and "whore." White testified that on one occa-
sion during the strike Mike Croes did throw a cake in her
face, that this incident took place shortly after the paint on
her car was ruined, and that about the same time she re-
ceived a letter in which she and her property were threat-
ened. White stated that the person who threw the cake at
her was wearing a mask and a clown suit but that she could
identify him by the color of his skin-he was Latin Ameri-
can-and by the color of his hair and his body build. She
did not know Croes before the incident but stated she
could identify him from pictures after the incident.
The Respondent contends that striker Donna Johnson
was discharged because "a witness" had identified her to
management as the person who had put paint on one of the
Respondent's vehicles. Johnson denied ever engaging in
such conduct, and the Respondent offered no testimony to
support its identification of Johnson other than its conten-
tion that some disinterested party had so informed them.
The Respondent contends that strike Mike Ware was
discharged because he assaulted a replacement driver by
the name of Rick Edington. 3 It appears that during the
strike Mike Ware and Edward Herrera were riding on the
bus Edington was driving and were both sitting right be-
hind Edington talking to him about the strike but that after
conversing for a few minutes Edington became angry.
stopped the bus, stood up, and grabbed Ware by the hair
with both hands. Ware then tried to defend himself, and
during the scuffle both he and Edington fell out of the bus.
Right after this incident, Ware called the police because
Edington had attacked him. Shortly thereafter. Edington
resigned his job and also apologized to Ware over the inci-
dent, but within a few days Ware received a notification
that a simple assault charge had been filed against him.
This charge was later dropped, and Ware has heard no
more about it.
The Respondent maintains that strikers Gary Barrios,
Don Beaver, Edward Herrera, and Joe Richmond were dis-
charged for strike misconduct involving an incident at the
"Jester Center" bus stop. namely detaining a bus or van
from leaving with replacement drivers. and an assault on
one of the Respondent's drivers. Barrios testified that he
boarded the bus in order to talk to the driver, that the
' lrlnver Yeleron tlestified th;l t the reason for a3re's discharge also
had Ito do with ain .issault on Il asin Roherls ihere were no olther refer-
¢ncre or details iven. lrid no telirnon, is how rYelverion knew of such
J. llniLd n11t
558 DI)5( ISIONS OF NATIONAL. I.ABOR REI.ATIONS BOARDI)
incident in question involved no physical contact or fights
with the other drivers, and that Beaver and Herrera did not
at any time get on the bus. Barrios testified that "cussing"
is ingrained in his vocahulary and that he might have said
a few "cuss" words hut that he did not have any knowledge
about threats to replacement driver Gary Weed or as to
anybody pushing driver (;ary Korf. Joe Richmond stated
that he did, in fact, get into the Respondent's vehicle dur-
ing the morning in question at the Jester ('enter but that he
had been invited to do so by a replacement driver who had
responded. "Why don't you get in here and tell me to shut
up." at which time Richmond entered the bus. Richmond
stated that in his opinion there was no tension in the air,
since the individual he told to shut up "was a pretty small
guy," and denied that there was any violence involved dur-
ing the incident here in question. Ed Herrera testified that
this incident, during the early part of the strike at the Jester
Center. did not result in any violence, that they were only
talking to the strikebreakers, and that he merely stood out-
side the van and was hollering "scab" at the replacement
drivers in the van. Donald Beaver testified that he could
not recall any violence regarding this incident but that
words of profanity were probably passed back and forth.
He admitted that both Richmond and Barrios stepped into
the van itself. Beaver testified that he also heard one of the
strikebreakers or replacement drivers tell Barrios and Rich-
mond to get off the bus or they were going to call the police
but that when one of the drivers on the bus tried to use the
radio to do so Joe Richmond touched the receiver and
said, "Don't call now, we want to talk to you for second."
The Respondent introduced testimony through Gary
Weed to the effect that he had received prior threats from
Herrera and other strikers as to what might happen to his
car and, in fact, that damage in the approximate amount of
$300 to $400 was done to his automobile, but did not iden-
tify any individuals involved in the actual damage to his
car. With respect to the incident at the Jester Center, he
testified that before he had even gotten out of his car on
the morning in question the strikers had surrounded him
and were using abusive language. He stated that as he
boarded the bus he noticed that Gary Barrios was already
aboard and was shaking his fist in everybody's face and
threatening them by saying, "You're not going to work to-
day." He testified that at this time the back door of the bus
flew open, and present were Donald Beaver and Edward
Herrera and about four or five other strikers, and they
informed the replacement drivers that they were not leav-
ing. According to Weed. one of the drivers, Gary Korf,
then attempted to radio the Respondent and was thrown
back in his seat. lie also recalled that Doug Weigel at-
tempted to get off the bus but was pushed down in the seat
and hit in the face with a rolled-up newspaper bh (Gary
Barrios. Weed testified that he then asked DLonald Beaver
to "reason it out" but that Beaver responded that it was
"too late for reasoning, too late for talking" and said, "l Ilt's
time to get on with it." Weed stated that they were unable
to close the back doors on the bus because Beaver and
1Herrera and other strikers were standing in the way."4
IV . eed ttifIhledt i thie drliters were uhllel kin nlMl.;llll iihwllc 1\ nlc
lthkier S th i buS Wouils d ConlIM of ll c t trilkcil' Inlll 11 I 11 i -l 1
-
, ;1 d
The Respondent contends that it fired Pat Kramer for
threatening the lives and families of Lisa Burnett and
Jeanne Cearley White and for making obscene gestures at
management people. White testified that in September and
October 1976 Kramer had been harassing her regularly by
making "ugly" remarks and also threatening her by state-
ments that thev "love to kill and eat scab babies." White
said that the situation with Kramer eventually deteriorated
to such an extent that one day she sprayed Kramer with a
fire extinguisher. White also testified that she had paint
thinner splashed on her car after Kramer had indicated
that she knew where White lived, but then admitted that
she could not identify any of the people responsible for this
incident. l.isa Burnett testified that early in the strike she
also had a confrontation with Pat Kramer. The confrorita-
tion occurred at Jester Dorm when Kramer sat next to her
and called her a scab in front of passersby. Pat Kramer
denies threatening an` employees during the strike, but ad-
mits that she did call them scabs. She also concedes that
she took her violin with her on frequent occasions and
would sing and play songs to them. She further concedes
that she passed out mimeographs of strikebreakers' bad
driving records and advised passengers of such records.
The Respondent maintains that Mike Nichols was dis-
charged for strike misconduct involving a threat and/or
abusive language to the wife of the Respondent's shop
foreman. Roger Tiller. Tiller testified that during the strike
he was traveling to work and coming in the rear gate of the
Respondent's premises with his wife, who was bringing him
to work, and that as he did so one of the strikers, identified
as Mike Nichols, approached his vehicle and stuck his
head inside and made a very lewd remark about Tiller's
wife (as the record duly reflects). Nichols denied making
an, lewd remark. He said as Tiller drove through the gate,
he told another striking employee, "There goes another
scab and his old lady." Although Tiller filed criminal
charges against Nichols regarding this incident, he subse-
quently dropped the charges against Nichols because in his
opinion it "became so ridiculous at that time" that he felt it
was the best thing to do.
i[he Respondent maintains that on January 25, 1977,
they terminated Chester Slimp because during the strike he
was "buzzing and playing chicken on his motorcycle,"
which endangered not only his own safety but also the
safety of Respondent's bus driver and passengers. Accord-
ing to company records, this incident was then reported to
the University of Texas Police Department. However,
other than the above. the Respondent offers no witness or
evidence in attempts to sustain its contention.
[he ('ompany contends that David Moore was terminat-
ed for strike misconduct nvolving a threat to replacement
driver L.isa Burnett. Burnett testified that in October 1977,
durine the strike, Moore called her "''a hot ass bitch." said
that he would like to "abuse" her, and then tried to open
the driver's window on the bus and also pointed his finger
at her and said she was ''going to get it."
The o'mpany states that it fired John Walker for verbal
and physical abuse to nonstriking elloyee Joe Brown.
In I n11ll 1l l ~ .i1 the ll tCniCi ll . l lo- 1c ,ildl th":A l IleI re[I ,olil d
1lde 11 11n u ,111 I n " t 1 c 1 tin" 1 i, e ' 1ep l ! Itack dToi icn : And lnll
, 11 11 ,11 (Z ,i.ks 1n t1t '. 1. k
TRANSPORTATION ENTERPRISES INC. 559
Brown was described bh Ross Raymond as the "smrallest
person" the ('ompans had working for it at the time. Walk-
er did not testify at the hearing. nor did the Company offer
any witness in efforts to prove or sustain its assigned rea-
son for the discharge of Walker.
In consideration of all the events and circumstances in
this case. the record as a whole, and Board law in this area.
it appears to me there was no strike misconduct of a seri-
ous enough nature to warrant an' of the discharges here
involved, and apparently the Respondent had reached this
same conclusion on April 16. 1977, when it offered these 13
employees their jobs back.
McCrav was actually acting in self-defense when his hair
was pulled: White apparently suffered no bodily injur of
any kind even if Croes did throw a "cake" at her: Johnson
was never specifically identified as the person putting paint
on the vehicle in question: Mike Ware was tr'ing to pro-
tect himself when the fight with Edington broke out:
Kramer probably did use obscene language and made abu-
sive threats against replacement drivers on certain occa-
sions, but there was no physical violence and she also suf-
fered some retaliations; the remark Nichols made to Tiller
and his wife must also be put in the category of abusive
language, but not justifying a discharge: as to Slimp. there
is no proof whatsoever to substantiate the contention that
he endangered Respondent's buses with his motorcycle:
the remark or threats Moore made to Burnett most likel\
fall within the realm of "impulsive behavior" and certainl b
are not of sufficient severity to warrant discharge: and
there was no evidence presented b the CompanN to prove
its allegation as to why they fired Walker.
There remains for consideration the incident of the
Jester Center involving strikers Barrios. Beaver. Herrera.
and Richmond. On this occasion the bus or van, hauling
replacement drivers to their respective stations, was un-
doubtedls detained, and strikers Barrios and Richmond
did get on the bus and a few minor scuffles resulted. How-
ever, it appears that the incident was over within several
minutes and no one was really seriously delaed or hurt.
and there were no acts of physical iolence which endan-
gered the safety of the replacements. Moreover. it appears
that had the replacement driver of the van realls insisted
on leaving the Jester C'enter. there was actually nothing in
front of him to stop or hinder his departure.
It is alleged in the complaint that on or about April 16.
1977, the Respondent refused to allow 10 emploNees or
strikers to secure employment, and it is further alleged that
on May I. 1977, the Company refused to allow emploees
to bid on more than one shift in relation to the upcoming
summer schedule. In essence, the Cieneral Counsel con-
tends that while the 10 strikers named in the complaint
were invited to bid for jobs on April 16. 1977. they were
unable to accept employment because the, could not get
the summer shift they wanted because these strikers were
prevented from 'blending" their driving schedules with
their classes at the Universit . and with other part-time
jobs. as they had been permitted to do in the past. i
At the Ilic ill qc e l ' n. NY' ek\' l ,, >i ; Ii. r 1t ltilw , I.1t I c11 ill lo ~-
ccs ddl nol bid l. rec lif route h ile i c ld i l he elibhie o ,Iii .i i-lidl
'icIerton ekpiined tlh h kiie. lhc% Itie ii ti 1 tic 31)0 to d il el,
As pointed out. the basic facts surrounding the April 16,
1977, bidding are not in dispute. The C'ompany called all
the strikers back, including those who had been discharged
at the January 25. 1977. bidding session or who were not
pernmitted to bid, as stated above. The Respondent admits
that the changed their former policy when in April they
permitted returning employees or strikers to bid initially on
only one 4-hour shift until all employees had the opportu-
nits to bid on the 4-hour shifts. In previous sears the Com-
panN had allowed employees to bid 8-hour shifts. Yelver-
ton also testified that the Respondent was trying to keep a
large seniority list for the summer s the Respondent
would not have to hire so many people for the fall.
It is the position of the Respondent that its conduct in
changing the bidding procedure for the summer semester
of 1977 was not a violation of the Act: there is no evidence
in the record to show that the purpose of such change was
to discriminate against employees: the Compan 3 has ad-
vanced a legitimate nondiscriminatory reason for the
change: and at the time the bidding procedure was
changed. there was no obligation on the part of the Re-
spondent to bargain with the Union. as the Union's peti-
tion at this time was pending before the National Labor
Relations Board and an election had not vet been ordered.
At the time here in question. the Respondent retrained
and kept on its payroll all of the replacement employees
hired during the strike. while at the same time it offered
reinstatement to all the strikers. Accordingly, the Respon-
dent actually cut the work hours in half. As unfair labor
practice strikers. the 10 employees named in the complaint
and here involved were entitled to reinstatement to their
former positions or substantially equivalent positions of
employment under the same terms and conditions as be-
fore the strike. Likewise, on the same basis. a violation also
occurred in relation to the refusal in May 1977 to) permit
the employees to bid more than one shift. Prior to the
strike, an emplo ee who chose to work two shifts could do
so. Now, after the strike, this privilege was denied. I find
that the denial of these privileges to unfair labor practice
strikers violates Section 8(a)(3) of the Act.
It Is alleged in the complaint that Chester Slimp was
discriminatorils discharged on October 24. 1977. Slimp
was initiall, enployed b the Respondent in April 1974.
lie went on strike with the employees in September 1976.
and he was also one of the employees fired on January 25.
1977. allegedly for strike misconduct. However, in April
1977. lie was offered a job. and his employment with the
Respondent then resumed in late August 1977. He so re-
mained with the Company until October 24. 1977. at which
time the Respondent sa'ys he was discharged for violating
the dress code.1 On cross-examination Slimp admitted that
in his conversation with Terminal Manager Yelverton he
advised Yelverton that he did not have any respect for the
dress code. Slimp adnitted that he had received three
swarning letters prior to the conversation .ith Yelverton
adising him that he was in violation of the dress code.
"lcft o'.icl" .ti cllx did Iniet IIed ichcf drIIxcr h al I ll. hc .ill lcd Ihls rul.
to both tirkimL .1md i ll rikmi c )niplCee,. I ippcar'. tat on ,rl 1 A .
19'7 , ilic ii lkei, \ecr reiilt.il.l c.cpt the 1) emploee,. hre inuokcd
I Scc ( ( I , 11}. 41}). iild 4 1 he drCes i.,C in qu .ll i n hecmllc
liC[I, t11 "I o 1),I .1Ililie 19i77 See , ( ( I I '
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Slimp also acknowledged that he knew of at least one other
employee who had been discharged for a dress code viola-
tion, but he did not know that the Company was "enforc-
ing it and terminating people for it. especially older em-
ployees that had performed pretty good service for
them." 7
In his conference with Tom Yelverton, Slimp attempted
to explain that the last two warning letters he received from
the Company arrived on the same day and, therefore, he
would not even have had an opportunity to correct the
wrongful acts. Slimp further explained that he was not guil-
ty of one of the offenses for which he was warned, because
at no time did he drive his bus without shoes. He said that
occasionally, when he was on a break or eating lunch, he
might pull his shoes off, but while driving he would always
keep them on. Respondent also maintains that one of the
reasons for the discharge was the fact that during his con-
ference with Yelverton, Slimp said that he had no respect
for the dress code. However. Slimp explains that what he
meant by this statement was that he did not respect the
way in which the dress code was set up, the way it was
enforced and implemented, and the way it had individually
been applied to him. It appears that this statement was also
made to Yelverton after Slimp had already been dis-
charged.
The General Counsel introduced credited testimony
through Steve Vasey' to the effect that he had detected and
observed a certain employee or driver who had violated the
dress code 12 times specifically Deborah Cyprus. He also
testified that Cyprus was a nonstriking employee and, even
though she had numerous violations, had not been dis-
charged. In fact, Vasey testified that he did not know of
any strike replacement driver who had been discharged for
dress code violations.
During the period here in question subsequent to June
7, 1977-- Roger Moore also observed several nonunion em-
ployees violating the dress code, and on the day Chester
Slimp was fired he talked to Yelverton about the situation
and named employees who had been observed in violation
of the dress code, particularly Deborah Cyprus. In his testi-
mony Yelverton admitted that only two people have been
terminated for violations of the dress code-Slimp and
Kramer -and they were both strikers. Also, the evidence
established that the person who initiated at least one of the
warnings against Slimp was a strikebreaker, namely BradN
Burnett, and that he is the husband of Lisa Burnett, who
testified against the striking employees.
I agree that there is sufficient evidence in this record to
show that Slimp was illegally terminated. The Respondent
had actual knowledge of his union activity through his par-
ticipation in the strike, and the C'ompany demonstrated
antiunion hostility by discharging him on January 25., 1977.
as previously detailed herein. As pointed out, the second
A.c iordln 1to YcI ertili. Itle ( llpI'. 1i ,,.i lt oii, r I11 li eC o, ic
[he (omp..n? did niol ii and scek people ut hil \iiJiioino 'O, le picd.
detected. nd the driver Io, .d T );I, [. n l\n1 C 1 IIheIni.1i1 .I \.I11i111
leter. If ,le emploce received three uch leiter. tie dr,.. Ic n Iw. d a,II
then subject uio ierliifltllor Accordilli IO Ycl er roll. i c.itlc to ll I ti\, L.I teI I
Ihal Sinmp hid recelced three l. ich dress c.de ,irnine ()One Sllllp'
inraclnoin Ietter, wias 'rillen h Hlr.ad Htiulncl ldl Iut o Oif II1cII h\ I .a1i\
Smith. hloth dpa;ichers ilh Respondent
time around, management was turning its head to viola-
tions of the dress code by replacement drivers while at the
same time they were weeding out the strikers. Nonunion
driver Deborah Cyprus had 12 dress code violations, but
she was not terminated, and she also had to pass the
dispatcher's office or desk each day in order to either pick
up her bus or turn it in. It is highly unlikely that the dis-
patcher could not have seen her. Therefore, a case of dis-
crimination with respect to the discharge of Slimp is also
established, based upon the disparity in treatment of strik-
ers and nonstrikers.
In the final analysis, this record further shows that Slimp
was not guilty of the violations contained in the first warn-
ing letter (no shoes). Accordingly, under Respondent's
three-warning rule, as noted, Slimp should have been given
one more chance before any discharge, and since he had
not committed sufficient acts to warrant an automatic ter-
mination, I am in agreement that there is a strong inference
that the discharge was for union activity. Moreover, as fur-
ther pointed out, it is obvious that the letter and spirit of
Respondent's three-warning rule had not been observed by
the Company, since Slimp received his last two warnings
(for wearing a T-shirt and undershirt) on the Friday before
he was fired and never had an opportunity to correct these
infractions. It becomes apparent that the dress code viola-
tion was only a subterfuge for some other reason to dis-
charge him and that management was not interested in
giving Slimp an opportunity to improve his habits.
In the 8(a)(5) aspects of this case, there is a further alle-
gation that the Company unilaterally changed its dress
code." On June 7. 1977, the Respondent published its new
dress code or revised its old one, but the Union was given
no opportunity to bargain over it. Apparently the Respon-
dent contends that they had no obligation to bargain be-
cause of lack of certification.
I am in agreement with the General Counsel that under
the circumstances of this case the Respondent's duty to
bargain remained after the expiration of the contract. Ini-
tially. the Respondent had voluntarily recognized the
Union, and its majority status continually remained intact.
This fact was clearly demonstrated on September 1, 1976.
when about 80 percent of Respondent's unit employees
went out on strike. Moreover, the representation proceed-
ing in the RC case was instituted to litigate the Board's
jurisdiction over Respondent, but the Union's majority sta-
tus as never in issue, and the lack of certification has
never been held a defense to a refusal-to-bargain charge
where the Union involved has demonstrated its majority
status. In the instant case. and for the reasons noted above.
the obligation to bargain remained during the period be-
tween the expiration of the contract and the subsequent
certification, and. accordingly, the change or revision in
the dress code without consulting the Union is violative of
Section 8(a)(5) of the Act.
it is further alleged that since July 27. 1977, the Compa-
II ppcIr m' ,in , i' re i r d I ,ha I , ti h le 1.irt of the strike on Septem er
I 1)97, u1tilil 1 ,]ri 1977 IC Ahere n hrcinlnle ses ions hciteen lihe
p,,lue .Iltlmtu -l1 (i ceritl oc-illlll dnurin thl inticral he niion at-
leilnpited it. I;like tlrlcrnilCiei, ith the ( oInpan; in lrder reume their
h.aT.tiuniii alk I he lrald elect.mn .I held .in Jul 15. 1977. nd Ihe
I lil m1 mk cilified o Jkl 2 177. a. prceimuuls inoted
TRANSPORTATION ENTERPRISES. INC. 561
ny negotiated in bad faith by insisting on taping each bar-
gaining session. The General Counsel introduced testi-
mony through Roger Moore to the effect that when the
parties went hack to the bargaining table in August 1977
the Company announced that they intended to tape the
negotiating meetings and that the Union would be fur-
nished tapes of the meetings, and under those circumstanc-
es the Union agreed to the arrangements. But at the session
in early September 1977. the Union registered a protest to
further taping of their meetings on the basis that either the
Union had not been given copies of the tapes or the tapes
had been incomplete. However, the Company continued
taping the meetings and even did so after the Union regis-
tered a second protest to the practice.
It appears to me that there is ample evidence in this
record to show that the Respondent insisted on using their
taping procedures throughout the bargaining negotiations,
starting in August 1977. over the objections and protests of
the Union. I find. in view of all the circumstances here,
that the insistence by the Company on taping the meetings
over the objections of the Union is a further showing that
the Company was not acting in good faith. Rather, when
the Respondent's insistence is viewed in the context of its
entire course of conduct, it is manifest that the
Respondent's purpose was to delay, avoid, and frustrate
meaningful bargaining and that its actions constitute a fur-
ther violation of Section 8(a)(5) and (1) of the Act.'9
It is also alleged that, commencing in late September
1977, the Company has refused to furnish the Union rele-
vant information concerning names, addresses rates of
pay, dates of hire, disciplinary actions, and classifications
of unit employees. During the September 28, 1977. negotia-
tion sessions, the Union requested the information as set
out in G.C. Exh. 13. but the Respondent did not respond
until sometime in November and then furnished only a
partial amount of the requested information. In early Feb-
ruary 1978, the Respondent furnished another parcel of the
information but said it would not furnish the employee
disciplinary letters asked for, and there are no indications
in this record that such letters have ever been produced.
The Union stated that it wanted the disciplinary letters so
that it could better represent employees in grievance pro-
ceedings.
The Union represents the unit employees with respect to
wages, hours, and other terms and conditions of employ-
ment, and clearly such terms and conditions of employ-
ment cover much more than the particular job task per-
formed by the individuals in the unit. Just as clearly. the
Union's need and entitlement to information extends to all
such terms and conditions of employment. Indeed, the
Board has repeatedly reiterated the principles enunciated
by the Third Circuit Court of Appeals in Curtiss-Wright
Corporation, Wright Aeronautical Division v. N.L.R.B., 347.
F.2d 61. 69 (3d Cir. 1965):
/[W]age and related information pertaining to employ-
ees in the bargaining unit is presumptiveli relevant, for.
9 See 4r haectural Fhernrngl/ nn-D I wl n, 4 r. ho, lura it t l 115 \ N R
238 (1967): 1.o al UnmSn N, '9, affintnlln h / n' ]innemn tnI, I i (J, ,, /
Wlortr, t nn (lnflonnn ',rn, h/ P-rd In. In( . 228 Nt RB mI 1I I 1.77
as such data concerns the core of the employer-em-
ployee relationship, a union is not required to show
the precise relevance of it, unless effective employer
rebuttal comes forth.
The Board has also pointed out that the presumption of
relevance attaches to requests for wage and related infor-
mation concerning employees in the unit, because the
Union's statutory duty to represent unit employees in-
cludes both the obligation to formulate wage and other
proposals in connection with future contract negotiations
and the obligation to police the administration of the ex-
isting collective-bargaining agreement. See Northwest Pub-
lications. Inc., 211 NLRB 464 (1974): and The .4. S. Abhell
Co.. 230 NLRB 1112 (1977).
Applying these principles to the case at hand. I am satis-
fied that the information requested by the Union falls with-
in the category of "wage and related information pertain-
ing to unit employees" and thus that Respondent's refusal
to supply this information also constitutes a violation of
Section 8(a)(5) and (1) of the Act.20
There is a final allegation setting forth that the Company
had no intention of entering into a binding contract evi-
denced by the withdrawal of its offer to grant cost-of-living
increases to unit employees. On July), 30, 1976. the Compa-
ny submitted a draft to the Union of their proposals for a
contract, and included therein was a provision for a cost-
of-living adjustment in the hourly rate of I percent for each
I-percent change in the Cost-of-Living Index, as computed
by the Bureau of Labor Statistics for the prior 6-month
period. This entire contract draft was also mailed out to
employees by the Company on the same day it was mailed
or given to the Union-July 30.2 Roger Moore testified
that the cost-of-living clause advanced by the Union dif-
fered from the Company's proposal-that the Union's pro-
posal would be in effect the entire 2 years, while the one
offered by the Company would not go into effect until
after the first of the year and would not cover the last 6
months of the contract.
It appears that at least article 17 (Compensation) of the
proposal submitted by the Company on July 30, 1976. and
possibly the entire proposal, was then rejected by the
Union a day before the strike. On September 8. 1976, a
week or so after the strike started, the Company published
in the local newspaper its July 30. 1976, economic offers to
the Union, and the published notice also included their
offer for a cost-of-living increase on a projected wage scale
for the following 3 years. The scale was as follows: begin-
ning rate for 1976-77. $3.10 per hour; beginning rate for
1977-78, $3.31 per hour: and beginning rate for 1978-79.
$3.53 per hour. In the late summer or early fall of 1977.
after the Union had been certified and the parties were
back in negotiating meetings, the Company presented a
counterproposal on wages-actually the same as the pro-
posal on July 30. 1976-but this time it did not include the
cost-of-living clause. At the meeting in late September
1977. the Union brought forth the Respondent's published
" I hl (ienecr.l ( oun,l ponin, out that dpIn.ph lr Icttcr are lilpoarllin
n iccrtirx I hc t miln u there rc Is .1 lu. tilon i the po.lhle dparil of
itrellllnell h lmvcl In n In I .1111 1)I111 uIll 11 lnP lI c
See C(( t:1 51
See (( I 1h 21
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ad of the prior year, in which the Company had proposed
a cost-of-living increase, and inquired about it. The Com-
pany replied that it was an offer which they withdrew when
it was not accepted by the Union. It was then pointed out
by the Union that this cost-of-living offer was made not
only to the Union but to the general public and nonunion
employees as well in the form of their published ad. Again
the Company stated that it was an offer made, rejected.
and therefore withdrawn. It appears that later on. in No-
vember 1977, the Company made a new offer on wages
which reinstituted their proposed graduated wage scale
with the schedule pushed back by I year, but there was no
offer by the Company to reinstate its original cost-of-living
proposal of July 30. 1976.
The General Counsel maintains that the Respondent's
conduct is exactly the conduct of the employer in A. H.
Belo Corporation (WFAA-TV). 170 NLRB 1558
(1968)-that in the instant case the Company could make
its cost-of-living offer to the newspaper, but at the bargain-
ing table it could not offer the Union anything-and ar-
gues that this is the same conduct the Board found viola-
tive of Section 8(a)(5) in the Belo case.
In Belo there was clear evidence that management made
statements away from the bargaining table to the effect
that there was pending a 10-cent weekly pay raise for all
engineers but that this raise could not be consummated
because the Company had started negotiations with the
Union, and that the engineers had hurt themselves by orga-
nizing. The Board noted that statements or declarations
which are not merely factual, made by parties at or away
from the bargaining table, are properly considered to ex-
plain in part their behavior during negotiations for pur-
poses of determining good or bad faith. However, in the
instant case, we have quite a different factual situation. In
the case before me, the Company submitted a proposal
calling for a cost-of-living adjustment. The Union noted
that it differed from their proposal, and on or about Au-
gust 31, 1976, the proposal by the Company was rejected.
During the early stages of the strike, the Company then
published its proposals on wages and projected cost-of-liv-
ing increases, all as previously detailed herein. When the
parties resumed negotiations months later, following the
strike and certification of the Union, the proposed cost-of-
living provision was no longer a part of the Respondent's
wage package. In the final analysis, it appears to me that
the elimination of the cost-of-living proposal resulted
through the give and take during the bargaining process
between the parties. especially since the Union had admit-
tedly rejected the Respondent's wage and cost-of-living of-
fer. The advertisement in the paper, dated September 8.
1976, merely set forth what the Company had offered on
July 30, 1976, and, under the circumstances here, it cannot
alter the actual events during the bargaining process
wherein the Union rejected the proposal. It appears to me
that in consideration of this development the Company
had no obligation to later reoffer its cost-of-living proposal.
and failure to do so under these particular circumstances
does not show any lack of intention to enter into a bargain-
ing contract. The General Counsel's position is apparently
based on the theory that once an offer is made by a party
in the collective-bargaining process it cannot be withdrawn
regardless of circumstances. This allegation is hereby dis-
missed.
IV I Il1 RLMi-D)Y
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices. I will recom-
mend that it be ordered to cease and desist therefrom and
take certain affirmative action as set forth below, designed
to effectuate the policies of the Act.
I have found that the strike was an unfair labor practice
strike, and I will therefore recommend that the Respondent
offer the unfair labor practice strikers named in Appendix
A immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority and other rights and privileges, discharging, if
necessary, any replacements in order to provide work for
such strikers. I also recommend that the Respondent make
those employees whole for any loss of pay that they may
have suffered by reason of the Respondent's discrimina-
tion against them, by paying to each of them a sum of
money equal to the amount that the), normally would have
earned as wages from December 22. 1976, to the date of
the Respondent's valid offer of reinstatement, less net
earnings during said period.2 3 The amount of backpay due
shall be computed according to the Board's policy set forth
in F. W. Woolworth Company. 90 NLRB 289 (1950). Pay-
roll and other records in possession of the Respondent are
to be made available to the Board or its agents to assist in
such computation and in determining the right to reinstate-
ment. Interest on backpay shall be computed in the man-
ner set forth in Florida Steel Corporation, 231 NLRB 651
(1977) (see, generally. Isis Plumbing & Heating Co., 138
NLRB 716 (1962). All of the above shall likewise apply to
Chester Slimp, and his backpay date also runs from De-
cember 22, 1976.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLkSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)( 1)
and (3) of the Act.
4. By denying reinstatement to strikers upon their un-
conditional application on December 22. 1976, and by dis-
charging Chester Slimp on October 24, 1977, the Respon-
dent has further engaged in unfair labor practices within
thL meaning of Section 8(a)(3) and () of the Act.
-. Se\.i l r If ,the Isi .kerc,I. .I reired on Jinuar I7, nls97: l mo f Ihcm
*cCic chicd ,, \&pil ll Jul; 91'77 aild o.lhcrs Xcr rccnplo\ ed on .arirou,
dIlc i' I, h h.CC t tllc an zlllC. lle po, -I.hj. .m C ls of the striker, hate
icc e..,, offer d [r.,lllCihllem 1[ [I I e, to , cer, | i in c l ISu.h Circ,,-
*t.IIcc. ;mid IhCe ilime periods IrppsmIII to, each cml hC Icadik L.mII,.liIced ill
.the 0q11a nL. c1. a[IL o! f fIne ll s , dilq
TRANSPORTATION ENTERPRISES. INC. 563
5. he unit, as previously set forth herein, is an appropri-
ate one for the purpose of cllectis.e bargaining within the
meaning of Section 9(b) of the Act.
6. At all times material herein. the Union has been and
continues to he the exclusive representative of all the em-
ployees within said appropriate unit for the purpose of col-
lective bargaining with respect to rates of pay, wages. hours
of employment. or other terms and conditions of employ-
ment. within the meaning of Section 9(b) of the Act.
7. By refusing to bargain collectively with the Unior as
the xclusive representative of its employees in an appro-
priate unit. b offering to pay. and paying, new drivers an
hourly rate in excess of that paid under the old contract. b
unilaterally changing the dress code. by insisting on taping
bargaining sessions, and by refusing to furnish relevant in-
formation concerning unit employees. the Respondent has
engaged in, and is engaging in, unfair labor practices ,ith-
in the meaning of Section 8(a)(5) and (I) of the Act.
8. he strike starting on September I.. 976. was an un-
fair labor practice strike.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 24
The Respondent, ransportation Enterprises, Inc.. Aus-
tin. Texas. its officers, agents, successors. aind assigns.
shall:
I. Cease and desist from:
(a) Offering. promising, and or paying nesw trainees or
replacements an hourly rate in excess of the rate set in the
bargaining agreement.
(b) Threatening to discharge employees because of their
union activity.
(c) Refusing to bargain collectively with Amalgamated
Transit Union. Local 1549. with respect to wages, hours.
and conditions of work. as the exclusive representative of
its employees in the appropriate unit as designated herein.
(d) Discouraging membership in the above-named
Union. or any other labor organization, by refusing to rein-
state or otherwise discriminating against emploees with
regard to their hire, tenure, or any other terms or condi-
tions of employment.
(e) Making any further unilateral and discriminators
changes.
(f) In any other manner interfering with. restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. ake the following affirmative action. which I find
will effectuate the policies of the Act:
4 In Ihc t",¢n[ rio cttcptum- ,rc fi ,i, ,ihIIld b' Not JC}' 4( .. i [Jlc
*tM1t In1>11 the , dt II'lll ^)tII uI' ()r ' I l 1tat,,, I 1,.l- 1 .1C 1 1 11 ' AI
i. fllll l uAr n. tla .i,o e N1ill 1h t 1RJ11n , , thl I,,
(a) Bargai n collectively with the aforesaid Union as the
exclusive representative of all the employees in the ahove-
described unit. and if an understanding is reached. enibods
such understanding in a signed agreement.
(h) Offer to each of the employees named in Appendix A
attached hereto, immediate and full reinstatement to their
former jobs or. if those jobs no longer exist, to substantialls,
equivalent positions, without prejudice to their seniorit\ or
other rights and privileges, dismissing, if necessarN. re-
placement employees hired after the start of the strike.
(C) Make whole all such named emplosees for any loss of
earninigs they ma) have suffered from the date of their
unconditional offer to return to work to the date the Re-
spondent unconditionally offers or offered them reinstate-
ment, as set forth in the remedy section.
(d) ()ffer to Chester Slimp immediate and full reinstate-
ment and make him whole for loss of pay. as provided in
the rcineds section.
(c) Restore the dress code as it existed prior to June 7.
1977.
(f) Permit emplo ees to bid on jobs from more than one
shift as was the practice prior to the strike.
(g) Permit negotiating sessions without taping such meet-
ings unless the Union agrees to such a practice.
(h) Furnish relevant information to the Union--written
disciplinary actions concerning unit employees.
(I) Preserve and, upon request. make available to the
Board or its agents, for examination and copying. all pa,-
roll records. social security payment records, timecards
personnel records and reports and all other records neces-
sars to analvze and determine the amount of backpa\ due
under the terms of this Order.
(j) Post at its place of business and bus stops copies of
the attached notices marked "Appendix A" and "Appen-
dix B." 25 (Copies of said notice, on forms provided bh the
Regional I)irector for Region 23, shall. after being dul
signed b Respondent's representative, be posted by it im-
mediately upon receipt thereof. and be maintained b' it for
60 consecutive days thereafter. in conspicuous places. in-
cluding all places where notices to employees are custom-
arilN posted. Reasonable steps shall be taken b Respon-
dent to insure that said notices are not altered, defaced, or
covered b an, other material.
(k) Notify the Regional Director for Region 23, in writ-
ing, within 20 da,,s from the date of this Order. what steps
have been taken to comply herewith.
In the cxenl tha.i th () Order I, enforced hb, a ludngment omf tI iltnc
Slt.tc ( i ' 1ti pf \p .All, tilhe u rd. in lite ililnce rlredilllr "'sttcd bh Order
(If the \.hrlt.II I.ihml Rcltllm, B .moard hall re ad It .tl 1 roted P iut It, ,
.iJdIinl t 1 11 I l: I I ltled S[titc ( til of X\ppc.al I fmlir/ rl fi Order of ie
N,.itltJl i jho RclI. BPP.ENlr IX A
APPENDIX A
s/ernon Adkens
Mike Albrech
Russel AnsleN
I (o Baker
Bob Barber
(Carl Barnhart
(;ars Barrios
Maynard Lutts
Mike l. da's
DIavid MacBrsde
Robert Manson
Stall Matthesc
John Mc('ras
Johnn\ McG(innis
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Don Beaver
David Berteau
Larry Boccaccio
Will Borst
Cliff Bradley
Gary Brown
Tracy Buxkemper
Steve Canter
Rob Cartledge
Bill Cassell
Jose Castro
Carl Cathey
Karen Cheely
Alan Christensen
David Christopher
Steve Colley
Mike Croes
Robert Crook
Jim Davis
Robert DeLozier
Don Denny
Dan Elliott
Karl Everding
Joe Fenton
Pete Finley
Kyle Flanagin
Steve Frederick
Steve Mills
Kevin Miskell
Kate Mitchell
David Moore
Roger Moore
Gary Napper
Michael Newman
Mike Nichols
Brian Nixon
Vicky Piercy
Danny Pitts
Trisha Pitts
John Ponder
Mike Powers
Phil Reece
Bill Rice
Darrell Rice
Earl Richards
Joseph Richmond
Bob Richard
Bill Roberts
Betsy Robertson
Robert Robledo
Mike Ryan
Mohnammed Saghafe
Hector Salinas
James Sappington
Gary Friederick
Tommy George
Allen Goldstein
Randy Gonzales
Kathy Goodwin
Sheryl Green
Kirby Griffith
Robert Griffith
Ernie Grimes
Doug Gullickson
Michael Hass
Rick Hall
Lenley Hensarling
Ed Herrera
John Hoffpauer
Stuart Hutto
Ian Ingles
Meg Ingles
Dave Jackson
David Joers
Donna Johnson
Ken Knapp
Toni Knight
Pat Kramer
Tom Langford
Pete Lawson
Dave Luckenback
Chester Slimp
David Smith
Been Sorrels
Bill Stanford
Mike Stein
Graig Steinbery
Gene Stroop
Steve Sutchler
Mike Tapsax
Angie Taylor
Ray Thibodeaux
John Tucker
Tom Tweedel
Ken Van Praag
Steve Vassey
Bill Veal
John Walker
Richard Walz
Mike Ware
Eric Welch
Becky West
Bill Wheeler
Mike Wilde
Scott Wilson
Tom Youngblood
Ed Zielinske