Transportation Services, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1984

269 N.L.R.B. 918 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transportation Services of Watertown, Inc. and
Thomas Vilmin. Case 30-CA-6912
10 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 5 July 1983 Administrative Law Judge Rich-
ard L. Denison issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Transporta-
tion Services of Watertown, Inc., Watertown, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
With regard to the General Counsel's exception 8, we find that, under
all the circumstances, the General Counsel's examination of Maas was
proper and did not exceed the scope of the allegations in the complaint.
Chairman Dotson agrees with the judge that the General Counsel's ex-
amination of employee Maas served no useful purpose.
We correct the judge's error in fn. 3 of his decision that Vilmin testi-
fied that Kerr's meeting with employees took place in early July 1981.
The record shows that Vilmin did not so testify. Kerr testified that the
meeting took place during the last 2 weeks of July. We also correct the
judge's statement, in fn. 5 of his decision, that Vilmin received a written
warning on July I. The warning was dated July 1, but Vilmin did not
receive it until later that month or early August. Neither of these errors,
however, affects the judge's conclusions.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This case was heard on October 21 and 22, 1982, in Wa-
tertown, Wisconsin, and on November 30, 1982, in Hart-
land, Wisconsin, based on an original charge in Case 30-
CA-6912, filed by Thomas Vilmin, an individual, on Jan-
uary 12, 1982. The complaint, issued February 25, 1982,
and amended at the close of the hearing, alleges that the
Respondent violated Section 8(a)(l) and (3) of the Act
by discharging Thomas Vilmin on September 22, 1981,
269 NLRB No. 163
and by otherwise discriminating against him in reducing
his hours, and denying him requested time off. It is also
alleged that the Respondent independently violated Sec-
tion 8(a)(1) of the Act by interrogating its employees, so-
liciting their grievances, and by threatening plant clo-
sure, more stringent enforcement of work rules, and dis-
charge, all because of their union activities.
The Respondent's answer denies the allegations of
unfair labor practices alleged in the complaint. On the
entire record in the case, including my consideration of
the briefs and observation of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations in paragraphs 2 and 3 of the
complaint, respectively, admitted by the Respondent's
amended answer, I find that the Respondent is and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that Drivers, Salesmen, Warehouse-
men, Milk Processors, Cannery, Dairy Employees and
Helpers Union Local No. 695, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Aborted Union Campaign and the Alleged
Violations of Section 8(a)(1) of the Act by Respondent
Vice President Charles G. Kerr
The Respondent is a bus company in Watertown, Wis-
consin. In January 1981 the Respondent succeeded to the
operation of city bus service pursuant to a contract with
the city of Watertown, which stipulated that the Re-
spondent was required to hire the former contractor's
drivers. 2
' During the morning session of the hearing, on October 21, I advised
the General Counsel that findings of violations would not be made on
matters outside the scope of the complaint, absent an appropriate amend-
ment to that document. (Official Tr., p. 60, 11. 5 through 10.) Pursuant to
that ruling, in the closing minutes of the hearing, on November 30, 1982,
the General Counsel moved to amend the complaint to add the additional
allegations of 8(aXl) violations specified in G.C. Exh. 41 in evidence.
That motion was granted, and minutes later the hearing was closed. Nev-
ertheless, in fn. 4 on p. 10 of the General Counsel's brief, the General
Counsel states, "While not specifically alleged, but certainly fully litigat-
ed, the uncontradicted testimony of Vilmin also demonstrates Kerr [sic]
to had told the assembled employees he denied them a possible wage in-
crease because of their union activities, supra. General Counsel requests
an appropriate finding and remedy as to this matter." This request is
denied. The General Counsel's request is in direct contravention of my
ruling of October 21. Furthermore, the General Counsel was afforded an
opportunity to fully amend the complaint at the close of the hearing, at a
time when all of the witnesses necessary to a full exploration of the addi-
tional issue the General Counsel now seeks to raise were available. The
issue to which the General Counsel alludes was not fully litigated, since
all that appears in the record is an uncorroborated statement by Vilmin
concerning a reference by Kerr to a possible wage increase, without any
descriptive details, including evidence concerning whether or not a deci-
sion to institute such an increase had actually been made.
I All dates are in 1981 unless otherwise specified.
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TRANSPORTATION SERVICES, INC.
The Respondent operates three city bus routes, utiliz-
ing the services of six regular city drivers. During the
period May through August 1981, Charles Kittel, Curtis
Maas, and Kenneth Wilde drove the morning shift, while
Robert Couse, Marvin Stoute, and Michael Eauslin
drove during the afternoon. On August 8 or 9, Eauslin
quit, and was replaced by Lawrence Voita, an experi-
enced city bus driver and long-term company employee
who had been driving since June on a full-in basis.
The Respondent also operates approximately 21 school
bus routes, on a seasonal basis between late August and
early June, covering the Jefferson County, Wisconsin
area, with access to the cities of Madison and Janesville.
The Respondent's school bus operation employs 31 driv-
ers, of which between 12 and 15 drivers perform services
for the Watertown School District.
Thomas Vilmin was hired by Driver-Supervisor Marin
A. Reyna on February 2 as a school bus driver. Begin-
ning with his second or third week of employment,
Vilmin also relieved the city drivers at various times.
About the second or third week of April, Vilmin began
talking with the city drivers about organizing a union,
whenever they would meet on their routes at the transfer
point at Third and Madison Streets in Watertown.
Thereafter, Vilmin contacted Gene Gowey, an organizer
for Teamsters Local 695 in Madison. Gowey held a
meeting at Vilmin's home during the first week of May,
attended by the city drivers, at which he spoke about the
operations of the Union and questioned those present
concerning their employment desires. Vilmin signed a
union authorization card at this meeting, and within the
next 2 weeks obtained signed cards from all seven city
drivers and six to eight school bus drivers during visits
to their homes or conversations at the transfer point.
Vilmin then mailed the cards to Gowey. On June 2,
Local 695 requested recognition from the Company, and
filed a representation petition seeking a unit of "all full-
time and regular part-time bus drivers employed by the
city of Watertown." In its response a week or two later,
the Respondent took the position that this unit was inap-
propriate and that the appropriate unit should also in-
clude the school bus drivers and the mechanics. Vilmin
then renewed his organizing activities, assisted for the
first time by city driver Kenneth Wilde, in an effort to
obtain additional authorization card signatures among the
school bus drivers and mechanics. Vilmin and Wilde
were unsuccessful, and on June 18 Local 695 filed a re-
quest for permission to withdraw its petition with the
Regional Director for Region 30 of the Board. On June
19 the Regional Director issued an order approving the
withdrawal of the petition, canceling the scheduled rep-
resentation hearing, and closing the case.
In early July, Charles Kerr held a meeting with the
city drivers in the drivers' breakroom of the terminal.3
2 No witness was able to establish the precise date of the meeting. All
witnesses agreed that it occurred in July. Vilmin testified that the meet-
ing took place in early July. I credit his estimate, which is supported by
Kerr's testimony that the meeting was held pursuant to the advice of his
attorney following the Union's withdrawal of the petition in order to find
out what problems he had and talk with the employees to see if they
could resolve anything without having a union.
Kerr presided over the meeting, and was the only speak-
er. In attendance were Thomas Vilmin, Robert Couse,
Marvin Stoute, Kenneth Wilde, Charles Kittel, and
Curtis Maas. Michael Eauslin was absent. Kenneth Wilde
testified that Kerr began the meeting by speaking about
"something" not pertaining to the Union. Wilde was
unable to remember any details concerning Kerr's open-
ing remarks. Then, according to Wilde, Kerr stated that
he and the city were both mad and upset about the em-
ployees wanting a union, and "if the union got in that
would be one big headache for him and he would shut
the whole place down and sell everything." Kerr also
said as long as they wanted a union, he was going to en-
force the work rules. Then Kerr stated that one of the
employees had complained about a phone call concern-
ing the Union which had wakened that person early in
the morning. Kerr stated that any more union phone
calls should be made at a reasonable time of the day.
However, Kerr did not mention the name of the caller
or the names of any persons involved in the union cam-
paign. In response to leading questions by the General
Counsel following Wilde's account of Kerr's talk to the
assembled employees, Wilde added that Kerr stated he
knew who was involved in the Union. Then Kerr asked
why the drivers wanted a union, and what their gripes
were. Wilde responded that their hourly wages were not
high enough, and that it would be nice if the Company
paid a greater percentage of their health insurance. Kerr
answered that he would check into the matter concern-
ing the hourly wage and health insurance. Then Tom
Vilmin spoke, but Wilde could not remember what he
said. Finally, Bob Couse mentioned the desirability of
having restroom facilities available at the transfer point
at Third and Madison, to which Kerr replied that it
would be all right for the drivers to stop at any available
facility on their route even if there were passengers on
the bus.
Tom Vilmin agreed with Wilde concerning who was
present at the July meeting, but differed in his account of
Kerr's remarks to a significant extent. According to
Vilmin, Kerr stated that he was very disappointed when
he heard they were trying to start a union. He stated he
wanted to know why they were doing that, and what he
was not offering that the Union could offer. He asked for
them to tell him their problems and their gripes. It was
at this point that Wilde stated he would like to have
more money, to which, according to Vilmin, Kerr an-
swered that he had been working on a higher wage but
when he heard about the Union he dropped the whole
thing. Vilmin spoke up, stating that he was interested in
job security, since he did not want to be driving for a
year or two and have a new manager come in who
would want to start from scratch with new drivers. Kerr
answered that Vilmin should not worry because that
would not happen. Then Couse spoke in favor of the in-
stallation of a restroom at the Third and Madison trans-
fer point, which Kerr stated the city would never sup-
port. He suggested that they use gas station restrooms on
their routes as a solution to the problem. Then Kerr re-
peated that he was very disappointed when he heard
they wanted to get a union in, and stated that if it went
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through they would all lose their jobs because the city
would not put up with it. According to Vilmin, Kerr
said that the two drivers who had contacted one of the
school bus drivers 3 or 4 days before, early in the morn-
ing, had better not do that to anyone else. He said they
should at least wait to a decent hour. Vilmin concluded
that Kerr was looking in the direction of him and Wilde
when he made this latter statement. At this point in his
testimony Vilmin had exhausted his recollection. There-
after, pursuant to an explicit leading question by the
General Counsel, Vilmin testified that Kerr asked them,
in addition, what was more important, having a job or
having the Union. On cross-examination Vilmin altered
his testimony by stating that during the meeting Kerr
specifically said "that if the union did go through we
would all be out of a job, he would close up, close the
thing, the city wouldn't stand for the union, and he
wouldn't stand for it."
Kerr testified that he first heard of the union campaign
in June when he received the Union's letter demanding
recognition. He denied knowledge of any employees' in-
volvement with the Union until he learned sometime in
August that Wilde had telephoned employee Kathy Roth
about the Union. He specifically denied knowledge of
Vilmin's efforts on behalf of the Union. According to
Kerr, he called the July meeting of city drivers pursuant
to his attorney's advice, in order to find out what prob-
lems he had and to see if they could be resolved without
the employees going to a union. Pursuant to his invita-
tion some of the drivers expressed their concerns. Couse,
Wilde, and Vilmin did most of the talking. Vilmin
wanted to know who would run the city bus system, if
he did not. According to Kerr, he answered that it prob-
ably would not be run at all, and if there were some
"radical changes" right away the city might not look fa-
vorably on it. He denied stating that the Company
would close down if the Union came in, but added, "If I
did, it would have been in answer to a question." How-
ever, Kerr admitted having asked the assembled employ-
ees why they felt they had to have a union.
I am persuaded, based on the testimony of Vilmin and
Wilde and the admissions of Kerr, that Kerr interrogated
employees concerning their union sympathies and solicit-
ed grievances from them with a view to making adjust-
ments for the purpose of thwarting employees' union de-
sires. I also find that he threatened to enforce the work
rules and to close down operations if the Union came in.
It is clear that, even if Kerr made his remarks concern-
ing closure in the context of his views concerning how
city officials might react in the event of successful orga-
nization by the Union, he was merely engaging in specu-
lation since he failed to present to the employees any ob-
jective evidence as a basis for his prediction. According-
ly, I find that Kerr violated Section 8(a)(1) of the Act in
these respects.
I further find, however, that Kerr did not violate Sec-
tion 8(a)(l) of the Act by threatening to discharge em-
ployees because of their union activities or sympathies, as
alleged in the complaint. In several respects Vilmin's and
Wilde's testimony was not mutually corroborative in im-
portant areas. This is significant, especially in view of the
fact that they were not sequestered witnesses at the hear-
ing. Thus Wilde failed to support Vilmin's testimony that
Kerr threatened that if the Union came in the employees
would lose their jobs. No other corroborative testimony
was produced. Although Curtis Maas, who was present
at the meeting, was called as a witness by the General
Counsel, he was not asked to relate his version of Kerr's
remarks. The only other witness present at that meeting,
Charles Kittel, remembered only Kerr interrogating the
employees concerning whether they wanted a union or
not. Vilmin's and Wilde's testimony varies in other im-
portant areas as well; for example, Wilde did not cor-
roborate Vilmin's testimony that Kerr said he had been
working on higher wages for the employees but had
dropped the matter when he heard of the Union. Nor
did Wilde corroborate Vilmin's assertion that Kerr stated
that the two drivers who had contacted a school bus
driver had better not do that to anyone else. On the
other hand, Wilde maintained that Kerr had said that he
knew who was involved in the Union. Vilmin failed to
corroborate Wilde in this respect, despite the fact that, as
an alleged discriminatee in this matter, it is unlikely he
would forget to mention such an important statement,
had it occurred. Consequently, for the reasons set forth
above, I find portions of Vilmin's and Wilde's testimony
unreliable and not credible.
B. The Alleged Discriminatory Reduction in Hours;
Denial of Time Off, and Discharge of Thomas Vilmin
In addition to his primary assignment of driving a
school bus route, Vilmin also served as one of the Com-
pany's relief drivers. Thus, beginning the second or third
week of February, he began driving a city bus during the
time when the Company's six city drivers were on their
20-minute breaks. He also occasionally drove for city
drivers who were on vacation. Furthermore, when Kerr
took over the operation of the city buses in January and
hired the former contractor's drivers, he agreed to con-
tinue the previous practice of permitting the city drivers
to substitute for one another pursuant to individual ar-
rangements. Documentary evidence submitted by each of
the parties, in the form of summaries of Vilmin's hours
worked, shows that Vilmin drove 35 to 40 hours per
month as a substitute for city driver Mike Eauslin, who
frequently utilized Vilmin as a substitute, pursuant to an
approved private arrangement, while Eauslin looked for
other work.4 Thus, Vilmin drove approximately 80 to
160 hours per month as a city bus driver. The records
reveal that Vilmin's hours driving a city bus were at
their highest point in June or July, the period during
which the union campaign reached its climax and Kerr
made his speech to the assembled drivers. On August 8
or 9, Eauslin quit, having found a better paying job driv-
ing over the road. Vilmin's hours driving a city bus de-
creased at this point, since he no longer substituted for
Eauslin. The documents in evidence show a direct corre-
lation between these events and Vilmin's loss of city
driving hours. Nevertheless, Vilmin's hours driving a
' The parties stipulated that the differences in Vilmin's hours revealed
by a comparison of their respective summaries were, for the most part,
insubstantial.
920
TRANSPORTATION SERVICES, INC.
city bus were still no less than they had been in the
winter and spring. 5
Finally, the General Counsel contends that Vilmin was
discriminatorily denied an opportunity to substitute for
city drivers while they were on vacation. According to
Vilmin, around the beginning of May he learned that
Charlie Kittel was going on vacation. Vilmin went to see
Marin Reyna who told Vilmin he had given the substi-
tute work to someone else. Vilmin then went and com-
plained to Kerr about the matter, but Kerr stated that
the Company wanted to keep Vilmin available for relief.
This was the only specific instance complained of by
Vilmin where he was allegedly denied an opportunity to
relieve vacationing drivers. Reyna and Kerr did not
deny having the conversation with Vilmin. However, an
analysis of the hours worked by the Respondent's city
drivers during that period reveals that Kittel, the only
city bus driver to take a vacation in the summer of 1981,
was away from work during the week of June 23
through June 27, a time when Vilmin was substituting
for Curtis Maas. Both Maas and Kittel drove morning
shifts. After Maas returned to work, Vilmin was em-
ployed substituting for Mike Eauslin. During this period,
Eauslin's total hours were actually higher than they had
been before. Considering all these factors and the record
as a whole, I find that the Respondent did not discrimi-
nate against Vilmin by reducing his hours because of his
union activities as alleged in the complaint.
On September 10, after completing his afternoon run,
Vilmin went to Driver-Supervisor Marin Reyna's office
and received permission to take the following workweek
off in order to go to Oklahoma to help his father-in-law
move some machinery. 6
After their conversation Reyna reviewed his trip book
and saw that he would not have enough drivers to cover
Vilmin's route, the other school bus and city routes, and
also hold himself available to cover emergencies on the
5 Vilmin does not contend, and Kerr denies, and there is no evidence
to support any assertion that Kerr ever promised that Vilmin would be
Eauslin's replacement. Instead, Kerr selected Larry Voita, a former long-
term company employee with an unblemished driving record. Kerr testi-
fied that he excluded Vilmin from consideration as Eauslin's permanent
replacement because Vilmin had had two accidents and had lied to him
in denying that he had missed a stop, an incident which Kerr had person-
ally observed. The other incidents to which Kerr referred concerned Vil-
min's crossing a railroad track in front of a train on May 27, and hitting a
deer with a city bus on June 10. Vilmin admitted to these two occur-
rences, but sought to minimize them in his testimony. He received a writ-
ten warning on July I concerning these incidents in which Kerr admon-
ished him that any further similar incident would result in his dismissal.
There is no allegation nor contention on the part of the General Counsel
claiming that either the circumstances surrounding these incidents or the
issuance of the warning was in any way discriminatory. Finally, although
Vilmin denied missing the stop at the local Shop-Ko Store, I credit
Kerr's testimony concerning what he observed. The General Counsel re-
called Kenneth Wilde as a rebuttal witness to corroborate Vilmin's denial
that he had missed the stop. However, Wilde did not do so. Instead, he
testified Vilmin told him that he had stated to Driver-Supervisor Reyna
that if he had missed the stop someone would have called the Company.
Wilde did not testifly that Vilmin denied missing the stop. Thus, I find no
evidence of discrimination or disparate treatment concerning the basis on
which Kerr excluded Vilmin from consideration as Eauslin's replacement.
6 Vilmin testified that this conversation occurred on September 9. 1
credit Reyna, whose testimony, unlike Vilmin's, was consistent and cor-
roborated. Furthermore, it is immaterial whether Vilmin requested per-
mission to be off or whether he simply told Reyna he was taking off the
following week since, in any event, Reyna initially gave his permission.
special education routes, with which only he was famil-
iar. The school year runs from late August to early June.
Reyna further explained that unlike city bus routes,
where the stops are fixed and do not vary, school bus
routes are constantly changing. The bus stops are set up
in accordance with where the pupils live, especially in
the case of kindergarten pupils who must be picked up at
their doorstep. These factors cause the period from the
beginning of school in late August sometime in October
to be the Company's busiest time for the school bus serv-
ice, since it is during this time that the drivers are learn-
ing their routes, new stops, new students, and the differ-
ent schools to which these students are to be transported.
In short, it is a confusing period, during which it is most
inconvenient for a driver, in the process of learning the
changes in his route, to absent himself from work.'7 On
Friday, September 11, about 3 p.m., as Vilmin was leav-
ing for his afternoon run, Reyna told Vilmin that he had
decided he could not spare him. Vilmin insisted that he
had to go because both he and his father-in-law had
made plans based on Reyna's previous assurance. Vilmin
also claimed that he did not see why others could take
off when he could not, an obvious reference to the situa-
tions involving Maas and Eauslin. Reyna answered that
he could not spare Vilmin the following week and, if he
took the trip, he would have to replace him and Vilmin
would no longer have a job. Vilmin stated that he under-
stood. Reyna testified that it was company policy to
allow employees to have time off on short notice for fu-
nerals and illnesses in the family. Other than that, he
said, if in his judgment the employee is needed, the Com-
pany asks that person to select another time. No evi-
dence was introduced to refute either the existence of
this policy or the accuracy of Reyna's statement.
On September 12, Vilmin left to go to Oklahoma. That
same day he was terminated by the Company. Accord-
ing to Reyna, who discharged him, Vilmin, an otherwise
good employee, was fired only because he took time off
from work without permission at a time during which he
was needed. In Respondent's view this conduct constitut-
ed a form of insubordination as well. Reyna's statement
of the Respondent's position was supported by the testi-
mony of Vice President Charles Kerr. 6
Vilmin did not appear for work on Monday, Septem-
ber 21, in accordance with his September 10 assurance to
Reyna. Instead, he telephoned Reyna on the morning of
September 22. 9 Vilmin said he was back, and asked if
7 In 1981 the school term began on August 26. Reyna's testimony in
this regard was corroborated by that of Charles Kittel.
' Consequently, the warning received by Vilmin on July I and the
events described therein are immaterial with respect to Vilmin's termina-
tion.
9 Vilmin claimed he called his wife on Sunday, September 20, and told
her to phone the Company and tell them he would not return on time.
Vilmin could not recall where he was at the time of this conversation.
Later, he testified, she called back, told him she had phoned Reyna, and
that Reyna had said "fine." Glenna Irene Vilmin's testimony was differ-
ent. She stated that her husband telephoned her on either Saturday or
Sunday night and asked her to call Reyna to tell him that he would be
late because "it was going to take longer." She stated that she called
Reyna at home that night and told him that her husband was going to be
a day late and would be in on Tuesday morning. Reyna said, "Fine, he
Continued
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reyna wanted him to work breaks for the city drivers.
Reyna answered that Vilmin had been fired, and that, if
he wished, he could talk to Charles Kerr at I p.m.
Vilmin met with Kerr in the mechanics' office in the
shop at that time. No one else was present. In response
to Vilmin's question concerning why he was fired, Kerr
replied, "We needed you last week, and you weren't
available." Choosing to ignore his conversation with
Reyna on Friday, September 11, Vilmin claimed that
Reyna had given him permission, and that he had to go
because his father-in-law needed him. Vilmin protested
that he had been driving all summer for "these guys"
whenever they wanted to leave, citing Curtis Maas as an
example.10 Then, according to Vilmin, Kerr responded
that when his father died he had left him the business,
and that made him the boss. Therefore, he said, he could
do anything he wanted, and that was how it was going
to be. Vilmin allegedly replied that he had just stopped
down there to find out why he was fired, and that he
heard it was for a certain reason. Kerr asked what
reason. Vilmin did not answer. Then Kerr allegedly
stated, "If you heard it was because of the union you're
wrong." Vilmin testified that the conversation ended at
this point with Vilmin saying simply, "I heard because of
a reason." Kerr denied having any knowledge of Vil-
min's union sympathies or activities during the period of
time in issue in this proceeding. I credit his denial. I do
not credit Vilmin's testimony that Kerr referred to the
Union during Vilmin's termination interview. 1
would see him then." Later, according to Mrs. Vilmin, her husband
called her, and she gave him Reyna's response. Reyna testified that on
Monday, September 21, Glenna Vilmin called him and told him Tom
would return on September 22. I credit Reyna concerning the date of the
call. I am persuaded, under the circumstances presented, that his response
to Glenna Vilmin constituted nothing more than an acknowledgement
that he would discuss Tom's discharge at that time, not approval of Vil-
min's return to work on September 22. This conclusion is supported by
the fact that at no time during his phone conversation with Reyna on
September 22, or his subsequent talk with Charles Kerr, did Vilmin claim
Reyna had approved his extended absence.
1' The General Counsel called two witnesses for the purpose of at-
tempting to show that Vilmin had been treated disparately in having been
denied time off. It was these witnesses, Mike Eauslin and Curtis Maas, to
whom Vilmin was obviously referring in his remark about other drivers
during the conversation with Reyna on September II. Eauslin testified
that he was permitted time off from his city route to look for another
job. However, Eauslin had longstanding and continuous permission for
this practice, and his absences were covered by an approved advance ar-
rangement with a substitute, none other than Thomas Vilmin. It is clear
that Vilmin could not have arranged for a substitute on his school bus
route because he realized no one else knew that route. Maas testified to a
completely anomalous set of circumstances. Despite counsel for Respond-
ent's offer to stipulate the information he desired to adduce, Maas, an en-
tirely neutral witness, was pressed by the General Counsel, in a most in-
sensitive examination, into revealing the effects of his personal problem
and illness on his working life to the point where I became seriously con-
cerned at Maas' obvious emotional distress. In any event, as later became
apparent, this acute embarrassment imposed on Maas served no useful
purpose. His testimony is immaterial, in that the circumstances surround-
ing his absences, and the advance arrangements made with his employer
to compensate for them, are not even remotely comparable to Vilmin's.
In addition, Maas never left work without permission.
I" On cross-examination Vilmin acknowledged that he had completely
omitted from his affidavit any reference to the Union having been made
in his conversation with Kerr. Undaunted, Vilmin further strained credu-
lity by maintaining that his memory was clearer at the time of his testi-
mony in October 1982 than it had been in January, when his statement
was given to the Board.
Reyna credibly testified that, after Vilmin left his
office following their September 11 conversation, Reyna
called Craig Morgan, a job applicant for a school bus
driver, and told Morgan that if he could obtain a school
bus driving license Reyna had a job for him. During the
fall of the year, when many others are seeking to become
drivers, the processing of applicants is often delayed.
Morgan passed his license examination on September 25
and, according to the stipulation of the parties, received
his medical examination sometime between September 20
and 29. During the month of September, Reyna also
hired Dawn Bergren to replace Carol Volkman and
Richard Schwane to replace Burt Prop.
I find that the General Counsel has failed to prove by
a preponderance of the evidence that Thomas Vilmin
was discharged because of his union sympathies and ac-
tivities. There is no credible evidence to prove that the
Respondent knew that Vilmin initiated or was active in
the aborted union organizational drive. Only by substitut-
ing speculation for evidence can the element of knowl-
edge be supplied. 12 Both Kerr and Reyna credibly
denied knowledge of his activities. Efforts by the Gener-
al Counsel to prove such knowledge through other driv-
ers failed, and served to emphasize the inappropriateness
of the suggested application of the so-called small plant
doctrine to a situation where the work force is spread all
over the county. Furthermore, the only union activist
provably known to these witnesses and the Respondent
was Kenneth Wilde who continued to work for the Re-
spondent, and concerning whom no form of discrimina-
tion is alleged.
It is almost axiomatic in the working world that,
absent a governing labor agreement or published regula-
tions to the contrary, an employee is expected to report
for work on scheduled workdays unless excused by his
employer. The Respondent's established policy was to
grant time off, even on short notice, for illness or a fu-
neral, but in the case of other reasons, to require employ-
ees to work and select another time, when they were
needed at work. Reyna's logical explanation of the Re-
spondent's needs at that particular time of the year is
fully corroborated, and on September 11 he denied
Vilmin permission to be absent the following week. He
also cautioned him concerning the specific consequences
of disobedience. Vilmin went anyway, stayed even
longer than he had specified, and returned to find he had
been fired. The General Counsel's efforts to prove dis-
criminate treatment, as discussed earlier, failed. Finally,
the Respondent also proved that other former employees
have not been reinstated after having engaged in similar
conduct. 13 I find that the Respondent did not violate
Section 8(a)(1) and (3) of the Act by reducing Thomas
Vilmin's hours, denying him time off, and discharging
"2 For example, the General Counsel, in questioning Kerr, claimed to
have found a copy of the Union's demand for recognition in Vilmin's
personnel file. I attach no significance to this claim, which is not in the
form of testimony. Kerr's testimony on the subject is mere speculation
about the subpoenaed documents, which had changed hands numerous
times.
Is Thus, in December 1980, Paul Spellman and Mike Spellman took
time off without Reyna's permission, lost their jobs, and were not rein-
stated.
922
TRANSPORTATION SERVICES, INC.
him on September 12 for his union sympathies and ac-
tivities as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Transportation Services of Water-
town, Inc., is, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local
No. 695, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees concerning their union
sympathies, threatening enforcement of the Respondent's
work rules, threatening to close down operations if the
Union came in, and by soliciting employees' grievances
with a view to making adjustments for the purpose of
thwarting employees' union desires, I find that the Re-
spondent violated Section 8(a)(Xl1) of the Act.
4. The Respondent has not violated the Act in any re-
spects other than those specifically found.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in certain unfair labor practices, I find it nec-
essary to order that the Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edl4
ORDER
The Respondent, Transportation Services of Water-
town, Inc., Watertown, Wisconsin, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union
sympathies, threatening employees with enforcement of
work rules and closure of operations if the Union comes
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
in, and soliciting grievances from employees with a view
to making adjustments for the purpose of thwarting em-
ployees' union desires.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its facility at Watertown, Wisconsin, copies
of the attached notice marked "Appendix."1' Copies of
the notice, on forms provided by the Regional Director
for Region 30, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
The complaint is dismissed in all other respects.
' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
union sympathies or desires, threaten them with enforce-
ment of our work rules or closure of operations if the
Union comes in; nor will we solicit grievances from
them with a view to making adjustments for the purpose
of thwarting our employees' union desires.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
TRANSPORTATION SERVICES OF WATER-
TOWN, INC.
923