Travelways, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1983

267 N.L.R.B. 1332 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Travelways, Inc. and General Drivers, Warehouse-
men and Helpers Local Union 28, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 11-CA-9956 and 1 1 -CA-10016
30 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 12 January 1983 Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be dismissed with
respect to the allegations that Respondent unlaw-
fully discharged its employees Russell Hawkins and
William Putnam.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions 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 reversing
his findings.
I In the absence of exceptions thereto, the Board adopts, pro forma, the
Administrative Law Judge's determinations that the Respondent violated
Sec. 8(aXI) and (5) of the Act.
With regard to the finding of a violation of Sec. 8(a)(5) of the Act, we
find it unnecessary to pass on Jerr-Dan Corp., 237 NLRB 302 (1978),
since we find that decision to be inapposite to the case here.
Member Zimmerman agrees with the Administrative Law Judge that
"this case falls squarely under the Board's rationale of Jerr-Dan Corp."
He notes that his colleagues state no basis for finding that decision "inap-
posite to the case here," and he can find none. He therefore finds that the
Administrative Law Judge correctly ruled that the Respondent violated
Sec. 8(aX5) of the Act by refusing to honor its commitment to recognize
the Union, a matter as to which no party has filed exceptions.
267 NLRB No. 212
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard before me on June 7 and 8, 1982, in
Greer and Greenville, South Carolina, respectively, pur-
suant to a consolidated complaint issued on September
16, 1981,' by the Acting Regional Director for Region
11 of the National Labor Relations Board. The consoli-
dated complaint which is based on charges filed by the
Union on June 19 and July 29, alleges that Travelways,
Inc. (herein called Respondent), violated Section 8(a)(l),
(3), and (5) of the National Labor Relations Act, as
amended. Respondent timely filed an answer in which it
denies the commission of any unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
which were filed by the General Counsel and Respond-
ent have been carefully considered.
Upon the entire record of the case, and my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a South Carolina corporation with
office and principal place of business in Greenville,
South Carolina, where it is engaged in the furnishing of
interstate bus transportation services. During the past 12
months, which period is representative of all times mate-
rial herein, Respondent, in the course and conduct of its
business, received gross revenues in excess of $50,000
from its operation as an interstate carrier. Accordingly,
Respondent admits, and I find and conclude, that at all
times material herein it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
Respondent admits and I find that the Union is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated
the Act by three separate, though interrelated, categories
of conduct. First, that Respondent's owner, Jack Pharr,
when faced with the claim that the Union represented a
majority of his bus drivers and mechanics, agreed to per-
sonally inspect the authorization cards and, as a result of
that inspection, voluntarily agreed to recognize and bar-
gain with the Union. Shortly thereafter, Pharr reneged
on this agreement and has at all times since refused to
bargain with the Union in violation of Section 8(aX)(5). In
the alternative, the General Counsel contends that in any
event Respondent's subsequent unfair labor practices in
Unless otherwise specified all dates refer to 1981.
1332
TRAVELWAYS, INC.
violation of Section 8(aX)(1) and (3) are of such a nature
as to warrant the issuance of a bargaining order under
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
The second category involves various statements made
by Pharr and Respondent's then general manager,
Melvin Hawkins, to employees which the General Coun-
sel contends constitute separate and independent viola-
tions of Section 8(a)(1). These statements range from
simple interrogations to threats to close the facility.
The third and final category involves the alleged un-
lawful discharges in violation of Section 8(a)(1) and (3)
of bus drivers Russell Hawkins and William Putnam.
For the sake of clarity these matters will be dealt with
separately in the order set forth above.
A. Refusal to Bargain
In late April, three of Respondent's bus drivers went
to the union hall where they met with James Phillips,
business agent. Phillips, after first explaining the use of
authorization cards, gave the three blank cards and in-
structed them to have all the interested employees sign
them. A few days later, nine authorization cards bearing
the signature dates of April 27 or 28 were returned to
Phillips' office. 2
By letter dated April 29, Phillips wrote to Pharr at
Respondent's Greenville, South Carolina, office s and no-
tified him that the Union represented a majority of Re-
spondent's drivers and mechanics, and demanded imme-
diate recognition. Further, the letter stated "we will
demonstrate to you the drivers' signed authorization
cards at your convenience."4 When Melvin Hawkins,
Respondent's general manager, received the letter, he
telephoned Pharr and informed him of the Union's claim.
Pharr instructed Hawkins to set up a meeting with the
Union for Monday, May 4. Hawkins did so, and on that
day Pharr and Melvin Hawkins met with Phillips and
Morris Stepp, the union president, at Respondent's
office. s
After introductions,6 Pharr asked Phillips and Stepp
what kind of problems his people had. Phillips responded
a On the firt day of the hearing, Phillips testified that he originally
received back only eight signed authorization cards. On the second day
of the hearing, Phillips was recalled by the General Counsel, and at this
time he corrected his testimony to reflect that he received nine, not eight,
signed authorization cards in late April. In explaining this change, Phil-
lips stated that he had, as of April, all the signed cards bearing the date
of either April 27 or 28, and that since there were nine such cards then in
the possession of the General Counsel, he was obviously mistaken in his
earlier testimony. Phillips impressed me with both his demeanor on the
witness stand and the clarity of his testimony regarding conversations.
Moreover, his corrected testimony is supported, if not corroborated, by
the testimony of various employee witnesses who testified to the circum-
stances surrounding the signing of the cards in question. In view of the
above, and in the absence of any reliable evidence to the contrary, I
credit Phillips' testimony that, as of the end of April, he had in his pos-
session nine signed authorization cards.
' Pharr lives in Charlotte, North Carolina, where he owns and oper-
ates a travel agency. During the spring of 1981, he visited the Greenville,
South Carolina, facility periodically on an irregular basis.
4 Shortly thereafter, the Union filed a petition for an election in Case
I 1-RC-SOO.
' Pharr testified that he did not remember seeing Phillips' April 29
demand letter at that time. According to Pharr, he was merely informed
that the Union wanted to meet with him to talk.
' The following account is based on a composite or amalgam of the
credited and corroborated testimony of Phillips and Stepp. As noted
that they had not yet met with the men, but that they
could do so, work up a proposal, and then meet with
him at a later date to negotiate a contract. Phillips then
stated that the Union had signed authorization cards
from Pharr's employees. Pharr asked to see them, but
Phillips answered that he would prefer that a third party,
such as a priest or minister, verify the cards. When Pharr
again asked to see the cards, Phillips in turn asked him if
he (Pharr) would be able to verify the employees' signa-
tures. After Pharr said that he could, Pharr handed him
the cards.7 Pharr then proceeded to look at each card
and call out the employee's name. With the exceptions
noted below, each time Pharr would read a name, Phil-
lips would ask him if the individual was in fact an em-
ployee, and Pharr would respond that he was. When
they came to the name of Juan Faneytte. Pharr stated
that he was a supervisor. Stepp answered that they could
work out that problem during negotiations. When they
came to the card of William Putnam, Pharr noted that
the name was printed rather than signed. Again Stepp
answered that that presented no problem.
At some point during the inspection of the cards,
Pharr stated one of the employees who signed a card
was going to be fired. When Phillips stated that he
hoped that it had nothing to do with signing of a card,
Pharr responded that it was due to a previous incident.
Phillips then asked the identity of this employee, and
Pharr indicated that it was Russell Hawkins, the brother
of his general manager. s
After the review of the cards, the subject turned to es-
tablishing a date for a negotiating meeting. Pharr indicat-
ed that he was going to be out of town, but that he
would be back on May 25, and available to meet with
the Union on May 26. Phillips stated that he would not
be in town then but that Stepp could handle the matters
for the Union. When Pharr asked if he could bring his
attorney, Phillip answered that the Union certainly did
above, Phillips displayed a keen memory and appeared honest and candid
throughout. While Stepp was just slightly less secure in his ability to
recall the facts, he nonetheless impressed me as candid and straightfor-
ward. When Hawkins' and Pharr's testimony is in conflict with that of
Phillips' and Stepp's on any material point, it will specifically be noted.
I do not credit that portion of Melvin Hawkins' testimony in which
he stated that Phillips allegedly told Pharr that if he looked at the cards,
he would be recognizing the Union as the bargaining representative, and
that Pharr specifically and readily agreed to that procedure. Melvin
Hawkins was not an impressive witness. As the brother of alleged discri-
minatee, Russell Hawkins, and as a current part owner in a bus company
in direct competition to Respondent, he held an obvious bia against
Pharr. On the other hand, Phillips, while noting that Pharr gave every
indication that he was agreeing at this meeting to negotiate with the
Union, credibly admitted that Pharr never specifically said he was recog-
nizing the Union as the bargaining representative. Phillips' testimony indi-
cated that Pharr was never asked the direct question regarding recogni-
tion and that he did not specifically mention it on his own. On the first
several occasions Stepp was questioned on the subject, his testimony fully
corroborated that of Phillips. However, the final time that he was asked,
Stepp answered that Pharr stated that they did specifically ask Pharr if
he were recognizing the Union and that Pharr answered he would have
to check with his attorney. I do not credit Stepp's final and uncorrobor-
ated version.
a Pharr testified that he stated that an investigation into Russell Haw-
kins' behavior was then underway, not that a final decision had already
been reached.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not object to the Employer having an attorney at negoti-
ations.
By letter dated May 6, Phillips informed the Acting
Regional Director for Region 11 that the Union wished
to withdraw the petition filed just a few days earlier. In
this letter Phillips stated:
Morris Stepp and myself met with the company on
May 4, 1981, and the owner, Mr. Jack Pharr, exam-
ined the authorization cards presented to him by
myself and further stated that the names on the
cards represented employees who worked for his
Company. It is the position of the Local Union that
this Company has recognized us as the bargaining
representatives. Mr. Pharr intends to contact the
Local Union for further meetings and negotiations.
The meeting previously scheduled for May 26 did not
take place. Although it is unclear, it appears that Stepp,
the individual who would be handling the matters for the
Union, was waiting to be contacted by Pharr upon the
latter's return to Greenville. Phillips, upon his own
return to town during June, on several occasions, at-
tempted to contact Pharr by telephone. These attempts
were unsuccessful and, despite leaving messages with
Pharr's secretary, his calls were not returned. On July 2,
Phillips sent a letter to Pharr requesting a meeting for
the purpose of negotiating a contract. Phillips indicated
in the letter that, if he did not receive a response, he
would file charges with the National Labor Relations
Board. On July 10, Phillips and Pharr had a telephone
conversation and mutually agreed to meet on July 1. On
that date, Phillips and Stepp went to the Greenville
office, however, Pharr did not appear.
By letter dated July 29, Pharr sent the following letter
to Phillips:
This will acknowledge your request for recognition
of your Union as bargaining agent for the drivers of
Travelways, Inc. Please be advised that we prefer
that our employees have a free choice by a secret
ballot in accepting or rejecting your Union as bar-
gaining agent and we must respectfully decline your
request for recognition.
Conclusions
Before analyzing the legal significance of Respondent's
actions during the meeting with the Union on May 4, it
is necessary to first determine whether the Union, as of
that date, represented a majority of employees in an ap-
propriate bargaining unit.
I shall deal first with the issue of the appropriate unit.
The parties in a post-hearing submission stipulated that,
as of May 4, 16 individuals were employed as full-time
and/or regular part-time drivers and/or mechanics, and,
therefore, should be included in any unit found appropri-
9 Pharr's account of this meeting was sketchy, lacking in detail, and
incomplete. Pharr did testify that he agreed to meet with the Union on
May 26. Significantly, Pharr offered no testimony whatsoever as to pro-
posed purpose of the second meeting. At no point in his testimony did
Pharr deny discussing possible negotiations with the Union.
ate. 0 The parties were not, however, able to agree on
the unit placement of two individuals, Melvin Hawkins,
the then general manager, and Lynn Styles, the clerical
employee. The General Counsel contends that Hawkins,
as a supervisor, and Styles, as an office clerical employ-
ee, should be excluded from the unit. Respondent, on the
other hand, contends that since Hawkins spent a "good
portion" of his time performing identical duties to those
performed by the other drivers and mechanics, and that
since Styles was a plant rather than an office clerical em-
ployee, both should be included in any unit found appro-
priate.
Little time need to be spent with regard to the ques-
tion of Melvin Hawkin's unit placement. The uncontro-
verted evidence establishes that for several years prior to
May 1981, Hawkins held the title of general manager. In
that capacity, Hawkins possessed and exercised the au-
thority to, on his own, hire, fire, discipline, and direct
the work force of some 17 employees. No citation is nec-
essary to support the obvious conclusion that Melvin
Hawkins was at the time he held the position of general
manager on May 4, 1981, a statutory supervisor within
the meaning of Section 2(11) of the Act.
A more serious question arises in the case of Styles,
the only clerical employee employed by Respondent.
Styles, who works in the office of the building which
also serves as the garage and/or terminal, informs drivers
in person and/or by telephone of their work assignments,
receives their reports and logs, checks their expense ac-
counts, prepares deposits, reimburses the drivers for their
expenses, and dispatches them. In performing these
duties, she has frequent contact within each working day
with the other employees.
Based on the rather sparse record before me, it appears
that Styles' duties are more akin to those of a plant cleri-
cal employee, rather than an office clerical employee of
the type who would traditionally be excluded from a
unit composed of bus drivers and mechanics. In this
regard, she appears to share a close community of inter-
est with Respondnet's other employees. Moreover, to ex-
clude her from the unit would effectively deny her any
representation since the Board does not certify bargain-
ing units for only one employee." Accordingly, Styles
should be included in the unit.
Styles' inclusion brings the employee complement, as
of May 4, to 17. As set forth above, as of that time the
Union possessed, and turned over to Respondent for its
inspection, cards from 9 of those 17, the minimum
number needed to constitute a majority. While Respond-
ent, neither at hearing nor on brief, fully explicated its
position with regard to the validity of these cards, it ap-
pears that it seeks to invalidate one or more of the cards
on the grounds of supervisory taint. In this regard, the
uncontroverted evidence establishes that General Manag-
er Melvin Hawkins was in the area of the office when
five employees, including mechanic Juan Faneytte,
'o Of the 16 stipulated to be bargaining unit employees, the following
9 signed cards on either April 27 or 28: Frankie Phillips, Frank Harris,
Johnny Chapman, James Sullivan, Juan Faneytte, William Strickland,
James Allen, William Putnam, and Russell Hawkins.
L' Luckenbach Steamship Co., 2 NLRB 181, 193 (1936).
1334
TRAVELWAYS, INC.
signed their cards. According to Hawkins' account,
when employees asked him how he felt, he simply told
them:
Its not up to me; its entirely up to the individual if
you want to sign them fine, it you don't, that's fine
too, but I can't get involved in it. I'm a supervisor
and I can't get involved in and I am not going to
get involved in it.
The only evidence offered by Respondent to even sug-
gest Hawkins' involvement in the card signing exceeded
the above-recited passage is the testimony of Juan Fan-
eytte. Faneytte, an employee of Hispanic descent, testi-
fied that at the time he admittedly signed the union au-
thorization card, he could not read English. Faneytte
stated that prior to his signing the card, employees
Johnny Chapman and Melvin Hawkins explained to him
that the Union would help employees in dealing with the
Employer in working out their problems. Additionally,
Faneytte stated that either Chapman or Hawkins filled in
the personal information blanks on his card from infor-
mation he supplied.
Even fully crediting Faneytte's somewhat suspect testi-
mony regarding Hawkins' involvement in the signing of
his authorization card, I, nonetheless, reject Respondent's
contention that this conduct in any way taints the finding
of the Union's majority status.
As the Board stated in El Rancho Market, 235 NLRB
468, 473474 (1978):
This Board has long recognized that a supervi-
sor's involvement in organizational activities will
taint a union's card majority only where the super-
visor's participation may be said to have deprived
employees of the opportunity to exercise free
choice in selecting a collective-bargaining represent-
ative.29 In explicating this principle, we have point-
ed out that at a minimum it must be affirmatively
established either that the supervisor's activity was
such to have implied to employees that their em-
ployer favored the union or that there is cause for
believing that employees were coercively induced
to sign authorization cards because of fear of super-
visory retaliation. 30
I9 See Juniata Packing Company, 192 NLRB 934 (1970).
0o See Orlando Paper Co., Inc., 197 NLRB 380 (1972).
Faneytte's testimony simply does not establish that
Hawkins implied to him that Respondent favored the
Union or that he was coercively induced to sign the card
because of fear of Hawkins' retaliation. Moreover, no
evidence was presented that Faneytte, due to any lan-
guage difficulties, was in any way misled as to the pur-
pose of the card or that he did not have an opportunity
to understand the nature of what he was signing. On the
contrary, the evidence indicates that Faneytte was fluent
enough in English to fully comprehend the meaning of
signing an authorization card.12
I Sans Souci Restaurant, 235 NLRB 604, 608 (1978).
To summarize the above findings and conclusions, the
Union, by letter dated April 29, informed Respondent
that it represented a majority of Respondent's drivers
and mechanics and offered to demonstrate this fact to
Respondent through presentation of signed authorization
cards. Less than a week later, at a meeting with the
Union, Respondent's president, Pharr, inspected the au-
thorization cards signed by a majority of his employees
in an appropriate unit and agreed to meet with the Union
in 3 weeks' time to negotiate a contract. At no time
during the meeting did Pharr ever question the Union's
claim of majority status in an appropriate unit. While
Pharr never specifically stated that he was recognizing
the Union as the exclusive bargaining representative of
his employees, his commitment to enter negotiations with
the Union constituted an explicit recognition of the
Union's majority status. Thus, this case falls squarely
under the Board's rationale of Jerr-Dan Corp., 237
NLRB 302, 303 (1978). There, the Board, in a factual
setting strikingly similar to that present here, stated:
Rather, the key is the original commitment of the
employer to bargain upon some demonstrable show-
ing of majority. That showing was made here by
the Union and that commitment was made by Re-
spondent when it agreed to begin bargaining. Once
that commitment was made, Respondent could not
unilaterally withdraw its recognition and to do so
was a violation of the Act.
Accordingly, I find that Respondent's withdrawal of rec-
ognition from the Union was in violation of Section
8(a)(5) and (1) of the Act. In view of this conclusion, I
need not treat the General Counsel's alternative argu-
ment that a bargaining order should issue under GisseL
B. The Independent 8(a)(1) Violations
I. Interrogations
Employees Johnny Chapman, Frank Harris, and Don
McIntyre each testified that sometime after May 4, Pharr
spoke to them individually in his office about the
Union.' s According to each's credited account, Pharr
asked them if they had signed union authorization cards.
Pharr, while denying that he spoke to any of the em-
ployees about the Union prior to his meeting on May 4,
admitted asking Harris if he signed a union card shortly
after the meeting. When asked why he would ask Harris
a question to which he already knew the answer, Pharr
stated simply, "I was kidding with him." Pharr could not
recall speaking to any other employee about the Union.
'S Chapman testified that the conversation occurred about a week after
he signed his card on April 27, while Harris testified that it occurred
about a week to a week and a half after he signed his card, also on April
27. Although McIntyre stated that his conversation occurred in late
April, it is clear from the full reading of his testimony that it actually
occurred about the time he signed his authorization card in mid-May.
Although the record is somewhat unclear, it does not appear that
Pharr was at the Greenville facility between April 29, the date the Union
wrote the demand letter, and May 4, the date of his meeting with the
Union.
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
I credit the mutally corroborative testimony of Harris,
Chapman, and McIntyre over the partial and unconvinc-
ing denial advanced by Pharr. The interrogations which
took place had no legitimate purpose and were not ac-
companied by any assurance against reprisals and, as
such, violated Section 8(a)(l) of the Act, even if such
discussions took place in a "friendly atmosphere" where
the supervisor and employee enjoyed a close and amiable
relationship.1 4 Accordingly, I find that Respondent vio-
lated the Act in this regard as alleged.
2. Threat of plant closure
Don McIntyre testified that in February 1982, he and
his wife met with Pharr at a local McDonald's restaurant
to discuss Respondent's possible renting of a trailer at the
Knoxville World Fair that summer. During their lunch,
Pharr told him that "if the Union came through he was
undecided whether or not he would either close up his
Greenville operation or move to Charlotte or just close
it up." At the time of the conversation the original unfair
labor practice hearing was scheduled to be heard on
April 29.
Pharr recalled having lunch with the McIntyre's on
the occasion in question; however, he did not recall any-
thing being said during this conversation about the
Union.
Conclusions
I find Mclntyre's account of the above conversation
more reliable than Pharr's. Statements made by an em-
ployer's owner of intent to close or move a facility if the
employees successfully organized clearly constitute an
unlawful threat of economic retaliation in violation of
Section 8(a)(l).' s Accordingly, I find that Respondent
violated the Act in this regard as alleged.
3. Threat of discharge
As will be set forth in some detail infra, on May 5,
Pharr informed Melvin Hawkins that he (Pharr) was
going to discharge Russell Hawkins, Melvin's brother,
for missing trips, failing to call in, and for being placed
in an alcoholic detoxification center. Melvin Hawkins
asked for, and was granted permission by Pharr, to per-
sonally inform his brother of the discharge. According to
both Melvin Hawkins and Russell Hawkins, during the
subsequent conversation between the two, Melvin Haw-
kins told his brother that the real reason for the dis-
charge may actually have been Russell's signing of a
union card.
Conclusions
In making the statement in question, Melvin Hawkins
was clearly expressing a personal, if incorrect, evaluation
of the situation. Additionally, a quite probable explana-
tion for his making the remark may well have been a
desire on his part to soften the blow to his brother.
14 Erie Technological Products, 218 NLRB 878 (1975); Mayfields Dairy
Farms, 225 NLRB 1017 (1976).
'1 Tra-Mar Communications, 265 NLRB 664 at fn. 5 (1982).
Melvin Hawkins was no doubt sensitive enough to real-
ize that Russell would be able to face his discharge in a
more positive light if he believed it was caused by his
union activity, rather than any serious problems he may
have had with alcohol abuse. In any event, neither
Melvin Hawkins' motive in making the statement nor his
family relationship with Russell Hawkins excuses Re-
spondent from liability for the conduct of the statutory
supervisor. The law is well settled that neither the sub-
jective intent of the speaker nor his relationship with the
employee is relevant, that the legality of the statement
will be judged solely by an objective standard of wheth-
er the supervisor's conduct reasonably tended to inter-
fere with employees' rights.' 6 Further, a supervisor's
prefacing his otherwise unlawful remarks with a state-
ment that he is merely expressing his personal feelings
does not remove the conduct from the Act's prescrip-
tion.'7 Here, the statement by a statutory supervisor to
an employee to the effect that his union activity caused
his discharge has, by necessity, a coercive and, therefore,
unlawful effect on the employee. Accordingly, I find this
8(a)(1) allegation as alleged.
4. Interference with Board proceedings
Employee Frankie Phillips testified that in late April
1982, on the day the original unfair labor practice trial
was scheduled to be heard, Pharr had a conversation
with him in his office about subpoenas.'s According to
Phillips, Pharr asked him if he had received a subpoena.
When Phillips answered that he had, Pharr stated that
two or three of the other drivers had consulted an attor-
ney and were told that since the subpoenas did not have
the name of a judge on them, the employees did not
have to honor them.
By way of defense, Respondent offered the testimony
of John Whitted, who since January 1982 has held the
position of Respondent's manager trainee. According to
Whitted, in late June 1982, he overheard Phillips while
in the office repeating what Pharr had allegedly told him
about subpoenas. Whitted took Phillips into his office
and told him that he did not believe Pharr had said what
Phillips attributed to him. At this point, Whitted called
Pharr on the telephone and, according to both Pharr and
Whitted, informed Pharr of what had transpired. Pharr
then spoke directly to Phillips on the telephone and
denied ever telling him that he (Phillips) did not have to
comply with the Board's subpoenas. Phillips answered
Pharr by stating that he must have dreamed up the earli-
er conversation. Phillips was not recalled to testify re-
garding this late June conversation with Whitted and
Pharr.
Conclusions
I found Phillips' testimony regarding what he was told
by Pharr in late April 1982 regarding subpoenas as more
credible than Pharr's general denial. I find nothing in
'n Coca-Cola Bottling Co., 250 NLRB 1341 (1980).
17 Herbst Supply Co., 222 NLRB 448, 451 (1976).
s8 By Board Order issued April 28, 1982, the Acting Regional Direc-
tor postponed indefinitely the hearing originally set for the following
day.
1336
TRAVELWAYS, INC.
Phillips' subsequent conversation of late June with Pharr
and Whitted as casting doubt over the reliability of his
earlier description of his conversation with Pharr. More-
over, Phillips was still employed by Respondent at the
time he gave testimony which was adverse to the inter-
ests of Respondent. In these circumstances, it is unlikely
that his testimony would be false.' 9
Pharr's advising Phillips that he did not have to
comply with a valid Board's subpoena tended to impede
the Board in the exercise of its power to compel the at-
tendance of a witness in its proceedings, and further
tended to deprive employees of vindication of their
rights through the participation of witnesses in a Board
proceeding. Bob Motors, 241 NLRB 1236 (1979). Accord-
ingly, I conclude that Respondent has violated Section
8(a)(l) of the Act in this respect.
5. Other misconduct by Pharr
The General Counsel, at hearing, introduced evidence
which, while not constituting independent violations of
the Act, allegedly demonstrated Pharr's deep-seated
animus against his employees' union activities, and, there-
fore, supports both the 8(a)(3) and 8(a)(5) complaint alle-
gations.
First, Melvin Hawkins testified that a few days after
the May 4 meeting, Pharr informed him that he (Pharr)
had had a meeting with his attorney and that they might
have a way around the Union by converting the drivers
to independent contractors. Pharr asked Hawkins if he
would be interested in this type of proposal, and Haw-
kins responded that he would consider it. Second,
Melvin Hawkins testified that on or about May 12, he
met with Pharr at the Company's office, where Pharr in-
formed him that as of that point in time he was being put
back as a full-time driver. Pharr explained that the move
was on a temporary basis and would last only until the
union "ordeal" was over. Pharr further stated that if it
came down to a vote, Hawkins, as a member of the unit,
could vote no in the election. Hawkins asked Pharr if he
would eventually be put back in the office, and Pharr an-
swered that he would at a later date. Pharr offered no
evidence regarding either of these points. I, therefore,
credit Hawkins' uncontroverted account which undeni-
ably establishes strong union animus on the part of
Pharr.
C. The Discharges
1. The discharge of Russell Hawkins2 0
The events leading up to Russell Hawkins' discharge
began on the morning of April 22 when Pharr phoned
g1 See Georgia Rug Mill. 131 NLRB 1304, 1305 (1961), modified on
other grounds 308 F.2d 89 (5th Cir. 1962).
20 Except where specifically noted, the above recitation is based on
Jack Pharr's account of the facts. In crediting this account, I am not, of
course, unmindful that in other portions of this Decision I have not cred-
ited his testimony. In those earlier situations, Pharr's rather vague testi-
mony was directly contradicted by the testimony of various witnesses
who impressed me, for one reason or another, as more reliable than was
Pharr. That is not the situation here where the only other testimony re-
garding this allegation is the testimony of Melvin Hawkins and to a lesser
extent the testimony of Russell Hawkins himself In many respects, their
testimony corroborates rather than contradicts Pharr. While Pharr's testi-
Melvin Hawkins from Charlotte, North Carolina, to
check on the status of Respondent's operations. During
the course of their telephone conversation, Pharr in-
quired if everything had gone all right with the 2-day,
two-driver charter for Wofford College scheduled to
leave that day at 9 a.m. Hawkins told Pharr that he had
replaced one of the assigned drivers, Russell Hawkins,
with a newly hired driver named Jerry Littlefield. When
Pharr asked why the change had been made, Melvin
Hawkins explained his brother, Russell, had been trying
to clear up some domestic problems and had gone to
West Virginia with his wife.2 t
Later that same day, Pharr drove to Greenville and
was in the office in the early evening by himself when he
received a phone call from an unidentified man. The
caller asked Pharr when someone was coming down to
the Greenville County Detoxification Center to get Rus-
sell Hawkins out. Pharr answered that he did not know
anything about it. Pharr stayed at Respondent's office
approximately another hour before he left to drive to
Columbia, South Carolina. 2 2
A few days later, Pharr was back in the Greenville
office and discussed Russell Hawkins' situation with his
brother Melvin. According to Pharr, Melvin Hawkins
told him that Russell had been under the influence of al-
cohol and was not able to go out on a trip and that he,
mony on the events leading up to Russell Hawkins' discharge are at times
vague and confusing as to time sequences, it is, nonetheless, a bulwark of
clarity when compared to the testimony of Melvin Hawkins.
21 While Melvin Hawkins recalled having a conversation with Pharr in
which he told him that Russell had gone to West Virginia, he placed this
conversation as occurring about a week prior to April 22. Both Russell
and Melvin Hawkins testified that Russell had not been assigned to work
on April 22. In support of this assertion, the General Counsel introduced
a daily log for Russell Hawkins which indicated that he was "off duty"
from April 15 to 28. Unfortunately, no testimony was offered as to when
or by whom this document was prepared. Since both sides apparently
agreed that Russell Hawkins did not actually drive, as distinguished from
being assigned to drive during this 2-week period, the materiality of this
document is in question.
In support of Pharr's testimony regarding the April 22 charter, Re-
spondent introduced a document entitled "Charter Bus Request" which is
normally filled in with charter information when a charter order is
placed or assigned. The document in question shows that the penciled-in
name of one of the two drivers assigned to the charter was erased, and in
place thereof the name of Jerry Littlefield was added. A careful inspec-
tion of the documents indicates that the name replaced could have been
the name of Russell Hawkins. No evidence was offered as to who actual-
ly prepared this particular document Additionally, neither Littlefield nor
Tom Strickland, the other drivers assigned to the charter, were called to
see if either could shed any light on how or when the assignment or reas-
signment of this charter was made.
22 The General Counsel disputes Pharr's testimony regarding this
phone call on several grounds. First, she correctly points out that the
center's records indicate that Russell Hawkins was admitted at 10 a.m. on
April 22 and discharged at 3:30 p.m that same afternoon, some 3 to 4
hours before the phone call in question. Second, she argues that the con-
fidentiality procedures followed by the center would have prevented any
unauthorzed contact with an outsider.
In view of the uncontroverted evidence that Pharr became aware of
Russell Hawkins' stay at the center, at least within a few days of April
22, the General Counsel's argument challenging Pharr's assertion of re-
ceiving a phone call from the center is puzzling. The General Counsel
offers no theory to explain how Pharr could have found out about Rus-
sell Hawkins' stay at the center if not from the center itself Further,
Pharr's receiving the phone call from the center several hours after Rus-
sell Hawkins' release is more likely to be the result of a bureaucratic
foulup by the center's staff rather than a failure on the part of Pharr's
memory.
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melvin Hawkins, had, therefore, sent Littlefield in his
place.
In an extremely confused account, Melvin Hawkins
not only seems to corroborate Pharr's testimony, but ap-
pears to go beyond Pharr's by also admitting that Pharr,
in late April, had already raised the question of discharg-
ing Russell Hawkins with him.
Under questioning by the General Counsel, Melvin
Hawkins testified in the following manner:
Q. Did you have a trip that you were supposed
to send Russell on?
A. To be honest with you, I don't remember. I
really don't.
Q. To your knowledge, did he miss a trip as a
result of this detox incident?
A. I don't think so, but I, it's hard to really say,
you know, without going back and looking. That's
been so long ago.
Q. Now, prior to May 5, after the meeting with,
or in the May 4, or May 5, meeting, prior to the
May 4, conversation with Mr. Pharr, after the
Union card check, did Mr. Pharr ever mention any
intention to fire Russell Hawkins to you?
A. Well, there had been intentions made to sever-
al drivers including Russell, yes mam.
Q. What I mean as a result of the detox incident?
A. Not to, as well as I remember, no. Now, Mr.
Pharr did ask me point blank had Russell been in
detox. He had found out somehow, but whether he
had a call or not I have no idea. But he did ask me
point blank had Russell been in detox, and I told
him, "I'm going to tell you the truth, yes he has."
Q. When was this in relation to the time that
Russell was in the detox?
A. As well as I remember, it was a week or so
after Russell had been locked up in detox.
A. And at that time, did he mention any intention
to fire over being put in detox?
A. At that point, he said that he was going to
have to talk to Russell, and he might have to let
him go. And I brought up the question myself "If I
may ask, you know, why are you firing him now,
why didn't you fire him then, you know, if that's
your intentions."
Q. You're talking about on May 4? You asked
Mr. Pharr that?
A. Yes.
Q. (Judge Cohen) What did he say?
A. He said that he had just found out about it
just a day or two before that.
Q. (Mrs Pate) But he had asked you about it a
week before that.
A. Approximately a week after Russell had been
locked up in Detox he said he had received a phone
call; he did tell me that, that one night in the office
he had received a phone call and to the best of my
recollection he never told me who-I mean, I didn't
ask who, you know-but he said that he had re-
ceived the phone call that Russell had been drunk
and missed, you know, missed employment for
being drunk and locked up on Detox.
Pharr testified that at some point around the time he
had his May 4 meeting with the Union23 he spoke to
Lieutenant Rumler, an officer of the Greenville police
department, regarding obtaining verification on Russell
Hawkins' admittance to the Detoxification Center. On
the advice of Lieutenant Rumler, Pharr called the center
and inquired if it would admit Russell Hawkins. 24 Ac-
cording to Pharr, he was told that Russell Hawkins
could not be admitted at that time since he had been in
there just a short time before. 25
On May 5, Pharr, who was still in Greenville, in-
formed Melvin Hawkins that he was going to have to let
Russell Hawkins go for missing trips, failing to call in,
and for being locked up in the Detoxification Center. At
this point, as noted above, Melvin Hawkins asked for,
and was granted, permission to break the news to his
brother. After Melvin Hawkins initially told his brother
of Pharr's decision, Pharr entered Melvin Hawkins'
office and repeated to Russell the reasons for which he
was being discharged. During the course of the conver-
sation, Russell Hawkins asked Pharr why he was being
discharged then since he had made at least two trips
since the April 22 charter. No evidence was offered as to
what, if any, reply Pharr made to this question.
Pharr testified that in March 1981 he and Melvin
Hawkins had talked to Russell Hawkins about Russell's
failure to show up for work due to drinking. According
to Pharr, both he and Melvin Hawkins warned Russell
that the next time he failed to show up because of his
drinking he would be discharged. Neither Melvin Haw-
kins nor Russell Hawkins offered any testimony about
this prior warning.
Conclusions
The General Counsel contends that the asserted rea-
sons for Russell Hawkins' discharge are pretextual in
nature and that the real reason for the discharge was his
signing of the union authorization card. In support of
this theory, the General Counsel relies on several factors,
including, (1) the timing of the discharge coming just I
day after the card check established that Russell Haw-
kins had signed a card, (2) Respondent's demonstrated
union animus as illustrated by its independent violations
of Section 8(a)(1), as well as by Pharr's uncontroverted
comments to Melvin Hawkins regarding his efforts to
23 When asked to place the following conversation in relation to the
May 4 meeting, Pharr answered simply, "Well, this is right along, that
was before that."
24 As noted above, both Pharr and Melvin Hawkins testified that late
in April they discussed the fact that Russell Hawkins had been admitted
to the Detoxification Center. In view of their mutual corroborative testi-
mony, it is not clear why Pharr would have felt the need to verify with
the center the fact that Russell Hawkins had indeed been admitted there.
Two explanations appear likely, (I) that Phar contacted the center before
he and Melvin Hawkins discussed the matter and (2) that both Pharr and
Melvin Hawkins are mistaken in their recollection of their conversations.
It would appear to serve no purpose to speculate further on this apparent
inconsistency. In any event, I credit Pharr's account that he did, in fact,
call the Detoxification Center on the advice of Lieutenant Rumler.
25 As before, the General Counsel disputes the testimony that anyone
with access to the center's records would violate a former patient's priva-
cy by disclosing this confidential information to Pharr. As before, I
choose to credit Pharr's account of what he was told by an unidentified
employee of the center.
1338
TRAVELWAYS. INC.
undermine the Union's majority status, and (3) the unusu-
al circumstances surrounding Pharr's alleged investiga-
tion into Russell Hawkins' work-related behavior.
That Russell Hawkins engaged in union activities and
that Pharr had knowledge of these activities at the time
of Hawkins' discharge is admitted. It is only slightly less
clear that within a very few days of this action, Pharr
demonstrated a strong union animus which included not
only a willingness on his part to consider converting the
driver-employees into independent contractors, but also
the actual temporary demotion of his general manager to
a driver status in an effort to obtain a no-vote if an elec-
tion were forthcoming. Notwithstanding these factors, an
analysis of the entire record convinces me that even if
Russell Hawkins' protected concerted conduct was a
"motivating factor" in Pharr's decision to discharge him,
Respondent has nonetheless demonstrated that the same
action would have taken place even in the absence of
protected conduct. 26 In reaching this conclusion, I start
with reference to Pharr's testimony that just a month or
two prior to the April 22 charter Russell Hawkins had
missed work due to drinking and that on that occasion
both Pharr and Melvin Hawkins warned Russell that he
would be discharged if such behavior occurred again.
Significantly, this testimony stands uncontroverted.
On the morning of April 22, Pharr, in a telephone con-
versation, was told by Melvin Hawkins that Russell
Hawkins had been replaced on the charter runs so that
he could go to West Virginia with his wife to straighten
out some domestic problems. That same evening, while
in Greenville, Pharr received a phone call from someone
in the Greenville Detoxification Center informing him
that Russell Hawkins was not in West Virginia as he had
been told, but was, in fact, still in Greenville in an unfit
physical state.
A few days after Pharr received this phone call, he
confronted Melvin Hawkins about his brother's difficul-
ties. While some real question exists as to exactly what
was said between the two, it appears that at the very
least Pharr mentioned to Melvin Hawkins that he might
have to let Russell go.2 7
Shortly thereafter, Pharr contacted the Detoxification
Center and confirmed what he had already been told,
that Russell Hawkins had been admitted there within the
last few weeks. What is not at all clear, however, is
when this confirmation was made. Pharr could do no
better than to indicate that it occurred around the same
time as the May 4 meeting with the Union. While
Pharr's statements about Russell Hawkins during the
May 4 meeting are more consistent with the finding that
he received confirmation from the Detoxification Center
sometime between the conclusion of this meeting and his
26 Wright Line, 251 NLRB 1083 (1980). I reject the General Counsel's
contention that the Wright Line analysis does not apply in alleged pretext
cases. See PPG Industries, 265 NLRB 455 at fn. 2 (1982).
27 That Pharr warned Melvin Hawkins on this occasion that Russell
might be discharged is corroborated by subsequent events. It should be
recalled that Melvin Hawkins apparently expressed no surprise during the
May 4 meeting when Pharr told the union representatives that Russell
Hawkins might have to be let go. The reason for the lack of surprise on
the part of Melvin Hawkins seems clear. He had, by virtue of his earlier
conversation with Pharr, already been informed of Pharr's intentions re-
garding his brother
discussion the following morning with Melvin Hawkins,
a contrary finding would not compel the conclusion that
Pharr's withholding the discharge until May 5 estab-
lished its pretextual nature. In view of Pharr's late arrival
to the facility on the morning of Monday, May 4, it is
quite possible that Pharr simply had no opportunity to
discuss the matter with Melvin Hawkins prior to the
meeting.
Determining the actual motive behind the dismis-
sal of an employee is of course often an extremely
difficult task, depending principally upon circum-
stantial evidence . . . and conduct. 28
Here, the task is made especially difficult where the qual-
ity of the witnesses offered by each side left much to be
desired. Much of the testimony of the principals lacked
detail, specificity, consistency, and corroboration. As
noted above, the General Counsel argues that the credi-
ble evidence demonstrates that the reasons offered by
Pharr to justify Russell Hawkins' discharge, i.e., missing
trips, failing to call in, and being placed in the detoxifica-
tion center, are mere pretexts to mask his true motiva-
tion-ridding Respondent of a card signer.
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be avail-
able that it is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required to
be any more naif than a judge. If he finds that the
stated motive for a discharge is false, he certainly
can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful
motive. . 29
Here, the balance of the evidence convinces me that the
General Counsel has not met her burden of persuasion.
In reaching this conclusion, I have, as noted, relied heav-
ily on that portion of the record which indicates that
Russell Hawkins had been issued a warning for similar
conduct less than 2 months prior to the incident on April
22, that Pharr had reason to believe that Russell Haw-
kins had missed a charter on April 22 because he had
been intoxicated and placed in the detoxification center,
and that Pharr had, prior to the union meeting on May
4, indicated to Melvin Hawkins that his brother, Russell
Hawkins, might be terminated in the near future. These
factors, as well as the extreme importance of having reli-
able and safe drivers available for charters, convince me
that Pharr would have reached the same conclusion even
in the absence of any protected conduct by Russell Haw-
kins. Accordingly, based on the record as a whole, it is
concluded that the General Counsel has not established,
28 NLRB v. Hotel Tropicana, 398 F.2d 430, 435 (9th Cir. 1968).
26 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 446, 470 (9th Cir.
1966).
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a preponderance of the evidence, that Respondent
discharged Russell Hawkins because of his union activi-
ties.
2. The discharge of William Putnam
At or about I p.m. on June 9, Pharr, while personally
running Respondent's operation, received a phone call
from a church in nearby Anderson, South Carolina. The
caller inquired regarding the price of a 12-day charter to
the Grand Canyon to leave the following afternoon.
Pharr calculated the cost of the trip and gave the infor-
mation to the church officials who told Pharr that they
would give him an answer by 4 p.m. that day.3 0
At some point shortly after 4 p.m., Pharr was notified
by the church that Respondent had been given the char-
ter. Pharr then consulted the out-of-work list or dispatch
board maintained in the office. According to his testimo-
ny, he determined that the priority of the drivers on the
list was as follows: Harris, Phillips, Putnam, and Strick-
land.3 1 Since Pharr already knew that Phillips, second
driver on the list, was not available for work that
evening,3 2 he assigned the charter to Putnam as the
number two driver and Harris as the number three
driver. At that time, Harris was working in the facility
doing some painting. Pharr called him in and told him
about the Grand Canyon charter. While explaining the
schedule to him, Harris asked who was the second
driver. Pharr answered that Putnam had been assigned to
the trip, and Harris responded that that was fine. Harris
then asked if Putnam could go all the way with him, and
Pharr answered that that was up to Harris and Putnam.
Harris then asked a question regarding splitting the trip,
and Pharr answered that they could do whatever they
wanted so long as it was legal. Harris then went home to
pick up his clothes, and Pharr called Putnam, informed
him of the trip, and instructed him to pick up Harris on
his way to the terminal that evening.
30 In figuring the specific requirements of the church, Pharr calculated
that three separate drivers would be needed. One driver was to pick up
the charter at Anderson, South Carolina. at 2 p.m. on June 10, and drive
the bus to Birmingham, Alabama, where he would be relieved by a
second driver previously stationed there. The second driver would drive
from Birmingham, Alabama, to Fort Smith, Arkansas, where he, in turn.
would be relieved of the driving responsibilities by a third driver. The
third driver, then accompanied by the second driver, would drive the bus
to Amarillo, Texas. After spending the night in Amarillo, the schedule
called for the second driver to drive from Amarillo, Texas, to Albuquer-
que, New Mexico. At that point, the second driver could remain with the
charter, if he so chose, or return to South Carolina by another mode of
transportation.
This schedule required that the drivers designated as drivers number
two and three would be sent ahead of time to Birmingham, Alabama
There the second driver would await the arrival of the charter bus from
Anderson, while the third driver would go on to Fort Smith, Arkansas,
by either Greyhound or Trailways.
a: Earlier that same day, about 3:30 p.m., Putnam returned from a trip
and signed the dispatch report. Putnam testified that three drivers hadl
their names on the board above his: Harris, Phillips, and Tom Strickland.
Although the record is not entirely clear, it would appear, based on an
inspection of Strickland's time records, that Putnam's recollection regard-
ing his placement as fourth man on the list is correct.
32 Earlier that day, Phillips had called Pharr and upon being informed
that there was no work scheduled, asked for and was given permission to
remove himself from the list so that he could pick up some odd-day work
hauling cantaloupes.
Sometime between 9 and 10 o'clock that evening,
Putnam and Harris arrived back at the terminal. Accord-
ing to Pharr, he explained the charter schedule, includ-
ing the requirement that Harris, in the company of
Putnam, drive that evening to Birmingham, Alabama,
where Putnam would await the arrival of the bus while
Harris would go on to Fort Smith, by either Greyhound
or Trailways. Pharr further informed them that the
entire pay for their share of the charter would be $900.
When Harris, in the presence of Pharr, told Putnam that
he would split the trip with him, Pharr commented that
he did not have anything to do with that so long as they
ran the trip legally.
Harris, in essence, corroborated Pharr's account.
Harris testified simply that Pharr told the two of them
that night that however he and Putnam worked out split-
ting the trip would be fine with him.
Putnam, on the other hand, had a slightly different
recollection. According to Putnam, when Pharr told
them that the trip only paid $900, he also stated that the
drivers would have to "split the pay." 3 3 Pharr also told
them that once they got to Birmingham, one driver
could either go ahead by Greyhound or Trailways to
Fort Smith, or could simply wait for the charter and ride
illegally on that bus. Pharr added that they could do as
they wished but that if they got caught running the trip
illegally, it was their problem.
In any event, following this conversation, Putnam cal-
culated that his share of the charter would come to less
than $25 per day after expenses. When Putnam told
Harris that he was not going to run the charter for that
pay Harris attempted to dissuade him by offering him
some of his own daily pay. Putnam still refused, and
around 11 p.m. went to Pharr to inform him of his deci-
sion.
According to Putnam's account, he simply informed
Pharr that he would not run the trip that would require
him to both split the pay and run illegally. Putnam then
stated that he would wait for the next trip, and Pharr an-
swered all right.
In Pharr's account, Putnam told him that after paying
taxes and expenses, he would not be netting enough
money from the charter. Pharr answered that he was
sorry but that he had to pay taxes also. Putnam then
stated he was not going and that he would find himself
something else to do. Pharr responded simply by saying
okay.
Several days later, Putnam came back to the facility
and spoke to Pharr. On that occasion, Pharr informed
Putnam that Putnam had left him in a bind3 4 and that he
took Putnam's conduct on June 9 as indicating an inten-
tion to quit his employment and that is the way he
:'' Putnanm testified that while it was not unusual to "split trips" with
drivers, it was both unusual and perhaps illegal to "split pay" with other
drivers. Despite much argument at the hearing, neither the General
Counsel nor Putnam, nor any other witness could explain or point out
any practical difference between the phrases, "splitting trips" and "split-
ting pay." In any event, there was no showing that splitting pay in itself
violated any DOT or ICC regulation.
34 Pharr successfully secured a replacement driver for Putnam some-
time after II p n. on June 9.
1340
TRAVELWAYS, INC.
would be treated. Putnam has received no work from
Respondent since this incident.
The record discloses that several months prior to the
June 9 incident, Putnam had refused a trip. On that occa-
sion, Melvin Hawkins informed him that he was suspend-
ed or laid off for 2 weeks. In describing this prior inci-
dent, Putnam testified that he had no knowledge as of
that time of any rules relating to the missing of trips. The
record does not disclose whether Putnam missed any
trips prior to this incident in early spring.
Melvin Hawkins testified that when he became general
manager he and Pharr met and decided to establish a
rule that if a driver refused to drive a trip he would be
suspended for 2 weeks. They further allegedly decided
that at that time that if a driver missed two trips he
would be automatically discharged. Other than Hawkins'
testimony, no other evidence was offered that any such
rules or regulations relating to the missing of trips exist-
ed or was ever made known to any employee.
Pharr denied that Respondent had or maintained any
rule regarding an employee's being suspended for miss-
ing a trip and, to his knowledge, no employee had never
been so suspended. According to Pharr, if an employee
missed a trip he considered the employee to be an auto-
matic quit. Pharr was not asked, nor did he voluntarily
attempt, to clarify the apparent inconsistency in his testi-
mony regarding previous suspensions of both Russell
Hawkins and Putnam.
Conclusions
The General Counsel contends that Putnam's dis-
charge was pretextual in nature and that the incident of
June 9 was simply seized upon by Respondent to mask
its true and unlawful motive of ridding itself of a known
union adherent. In addition to relying upon Respondent's
well documented union animus, the General Counsel
argues that Respondent placed more onerous conditions
on Putnam by requiring him to work for approximately
half of his normal pay and that when Putnam refused to
work a trip on that basis, Respondent, in a disparate en-
forcement of its own rules, meted out a more severe
form of punishment than otherwise called for.
Even viewing the facts in the light most favorable to
the General Counsel, the record evidence simply does
not support the conclusion urged by the General Coun-
sel. First, there is simply no evidence that the payment
method for this charter was in any way unusual or un-
precedented. Moreover, there was no evidence that Put-
nam's assignment to the charter was anything other than
an effort by Pharr to adequately staff a charter order
that he had just received. Even if one were to assume
that Respondent did in fact maintain the suspensions
rules as testified to by Melvin Hawkins, that the rules
were known to Putnam and other employees and that
Putnam had only missed one trip prior to June 9, Re-
spondent's "deviation" on this occasion from the terms
of his own rules would be justified. Approximately I
hour prior to the time that Putnam and Harris were
scheduled to leave by car for Birmingham, Alabama,
Putnam announced his refusal to accept the job. Putnam
in no way based his refusal to accept the charter on
other than his conclusion that the trip did not pay him
enough money. This refusal clearly put Pharr in a diffi-
cult position of attempting, at the very last minute, to
secure a replacement driver. That Pharr was able to do
so does not lessen the seriousness of Putnam's conduct.
Putnam gave Pharr a legitimate reason to discharge him
and Pharr, not surprisingly, acted upon it.
Based on a careful review of the entire record, I am
satisified that the General Counsel has not met the
burden of establishing that Respondent, in discharging
Putnam, was motivated by any unlawful considerations.
Accordingly, I recommend that the allegations relating
to Putnam's discharge be dismissed.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 1II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act,
I will recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes and policies of the Act.
Having further found that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain
with the Union as the exclusive bargaining representative
of its employees in an appropriate unit, I shall recom-
mend that Respondent cease and desist therefrom and,
upon request, bargain collectively with the Union as its
employees' designated agent concerning their wages and
other terms and conditions of employment.
CONCLUSIONS OF LAW
1. Respondent, Travelways, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. General Drivers, Warehousemen and Helpers Local
Union 28, affiliated with 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. All bus drivers, mechanics, maintenance employees,
and clericals employed at Respondent's Greenville,
South Carolina, terminal excluding all other employees,
including guards, professional employees, and supervisors
as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since May 4, 1981, the above-named
Union has been the exclusive representative of all em-
ployees within the above appropriate unit for the pur-
poses of collective-bargaining with respect to wages,
rates of pay, hours of employment, and other terms and
conditions of employment within the meaning of Section
9(a) of the Act.
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By refusing on and since May 26, 1981, to bargain
with the Union as the exclusive representative of the em-
ployees in the above-described appropriate unit, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By interrogating employees concerning their union
activities and desires; by threatening employees with
plant closure if the Union successfully organized Re-
spondent's terminal; by threatening employees with dis-
charge because they engaged in union activities; and by
interfering with Board proceedings by impeding the
Board in the exercise of its power to compel attendance
of a witness in its proceedings, Respondent has violated
Section 8(a)(1) of the Act.
7. By discharging employees Russell Hawkins and
William Putnam, Respondent has not violated Section
8(a)(l) and (3) of the Act as alleged.
8. Respondent has not violated the Act in any other
manner.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER3 5
The Respondent, Travelways, Inc., Greensville, South
Carolina, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
General Drivers, Warehousemen and Helpers Local
Union 28, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America and its designated agents as the exclusive repre-
sentative of its employees in the following appropriate
unit with respect to wages, rates of pay, hours of em-
ployment, and other terms and conditions of employ-
ment:
All bus drivers, maintenance employees, mechanics,
and clericals employees employed at Respondent's
Greenville, South Carolina, terminal excluding all
other employees, including guards, professional em-
ployees, and supervisors as defined in the Act.
(b) Upon request, bargain collectively in good faith
with the above-named labor organization and its desig-
nated agents as the exclusive representative of its em-
ployees in the appropriate unit with respect to wages,
rates of pay, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody same in a written signed agreement.
(c) Engaging in any of the following conduct in con-
nection with the employees' engagement in union or con-
certed activities: interrogating employees, threatening
1s In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
employees with plant closure, threatening employees
with discharge or interfering with the Board's proceed-
ings by impeding the Board in the exercise of its power
to compel the attendance of a witness in its proceedings.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the above-named labor organization and its desig-
nated agents as the exclusive representative of its em-
ployees in the appropriate unit with respect to wages,
rates of pay, hours of employment, other terms and con-
ditions of employment, and, if an understanding is
reached, embody same in a written signed agreement.
(b) Post at its place of business in Greenville, South
Carolina, copies of the attached notice marked "Appen-
dix."3 6 Copies of said notice, on forms provided by the
Regional Director for Region I1, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed with respect to the allegations that Respondent
unlawfully discharged its employees Russell Hawkins
and William Putnam.
s6 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 refuse to recognize and bargain
collectively with General Drivers, Warehousemen
and Helpers Local Union 28, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and its designat-
ed agents as the exclusive bargaining representative
of employees in the following appropriate unit with
respect to wage, rates of pay, hours of employment,
and other terms and conditions of employment.
All bus drivers, maintenance employees, mechan-
ics, and clericals employees employed at our
Greenville, South Carolina, terminal excluding all
1342
TRAVELWAYS, INC.
other employees, including guards, professional
employees, and supervisors as defined in the Act.
WE WILL NOT interrogate our employees about
their union activities.
WE WILL NOT threaten our employees with dis-
charge or plant closure because they engage in
union activities.
WE WILL NOT interfere with the National Labor
Relations Board proceedings by impeding the Board
in the exercise of its power to compel the attend-
ance of a witness in its proceedings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed by Section 7 of the
Act.
WE WILL, upon request, bargain collectively with
the above-named Union and its designated agents as
the exclusive representative of our employees in the
appropriate unit with respect to wages, rates of pay,
hours of employment, and other terms and condi-
tions of employment, and, if an understanding is
reached, embody same in a written signed agree-
ment.
TRAVELWAYS, INC.
1343