Yellow Cab Co. of Nevada

National Labor Relations Board - Board Decisions

Apr 17, 1984

269 N.L.R.B. 1057 (N.L.R.B. 1984)

YELLOW CAB CO. OF NEVADA
Yellow Cab Company of Nevada, Inc. and John
Moscheo. Case 31-CA-12680
17 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 October 1983 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Charging Party filed exceptions.
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 has decided to
affirm Jhe judge's rulings, findings, 2 and conclu-
sions3 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, Yellow Cab
Company of Nevada, Inc., Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
z Chairman Dotson would disregard the exceptions because they lack
sufficient specificity to satisfy the requirements of Sec. 102.46(b) of the
Board's Rules and Regulations.
2 The Charging Party 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.
In sec. 3(a) of the judge's decision, the judge found that co-owner
Schwartz told employee D'Amore that Schwartz could not reinstate
anyone "who had to do with the Union or D'Amore." The record indi-
cates, however, that Schwartz told D'Amore that he could not reinstate
anyone "who has to do with the Union or Moscheo."
a In the absence of exceptions thereto, Chairman Dotson adopts pro
forms the judge's finding that the Respondent violated Sec. 8(aXI) of the
Act by informing employee Moscheo that employees who failed to
report to work because of a strike would be terminated.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge.
This proceeding in which a hearing was conducted on
May 18 and June 3, 1983, is based on an unfair labor
practice charge filed against Yellow Cab Company of
Nevada, Inc., herein called Respondent, by John Mos-
cheo, on December 8, 1982, and a complaint issued
against Respondent on January 17, 1983, by the Regional
Director for Region 31 National Labor Relations Board,
on behalf of the Board's General Counsel. The complaint
alleges that Respondent violated Section 8(a)(1) and (3)
of the National Labor Relations Act, herein called the
269 NLRB No. 180
Act, by discharging Moscheo because of his union or
protected concerted activities and also alleges that Re-
spondent independently violated Section 8(aXl) of the
Act by informing an employee that employees who
failed to report for work because of a strike would be
terminated. Respondent filed an answer denying the
commission of the alleged unfair labor practices. '
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the oral
argument of the parties, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
I. The setting
Respondent provides taxicab and related services to
the general public in Las Vegas, Nevada. During the
time material herein Respondent's general manager was
Jon Ashment. The alleged discriminatee John Moscheo
was employed by Respondent as a taxicab driver.
On July 1, 1981, the Board in Case 31-RC-4785 certi-
fied the Union as the exclusive collective-bargaining rep-
resentative of a unit of Respondent's taxicab drivers. Re-
spondent contested the validity of the certification by re-
fusing to recognize and bargain with the Union.
On or about August 2, 1981, the operations of three
other Las Vegas taxicab companies-Checker Cab, Star
Cab, and Nellis Cab-were merged into Respondent's
business operation and commenced to operate from Re-
spondent's facility under the supervision of Respondent's
general manager Ashment.
On September 9, 1981, in Case 31-RC-5196 the Union
petitioned the Board to conduct a representation election
in a unit of taxicab drivers employed by the Checker,
Star, and Nellis Cab Companies. On October 23, 1981,
the Board's Regional Director for Region 31 issued his
decision in that case where he dismissed the Union's peti-
tion because he considered that, as a result of the merger
with Respondent of the operations of the Checker, Star,
and Nellis Cab Companies, the smallest appropriate col-
lective-bargaining unit consisted of a unit of taxicab driv-
ers employed by all four companies. The Board, by its
order dated December 15, 1981, denied the Union's re-
quest for review of this decision. Thereafter, consistent
with its action in Case 31-RC-5196, the Board on Janu-
ary 6, 1982, issued an order vacating the certification it
had previously issued to the Union in Case 31-RC-4785.
On December 9, 1981, in Case 31-RC-5251 the Union
filed a petition with the Board seeking a representation
election in a unit consisting of the taxicab drivers em-
ployed by Respondent, Checker, Star, and the Nellis Cab
Companies. On December 29, 1981, the employers and
the Union entered into an election agreement in that
In its answer Respondent admits that it meets the Board's applicable
discretionary jurisdictional standard and is an employer engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act. Also, Respond-
ent admits that the Union herein, Industrial, Technical and Professional
Employees Division, National Maritime Union of America, AFL-CIO is
a labor organization within the meaning of Sec. 2(5) of the Act.
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, approved by the Board's Regional Director, where-
by they agreed to participate in a Board-conducted rep-
resentation election on January 13, 1982, in the aforesaid
unit. The election was held as scheduled. The tally of
ballots shows that of the approximately 713 eligible
voters 399 voted in favor of union representation and 135
voted against union representation. The employers filed
timely objections to the election and to conduct affecting
the outcome of the election. The Board's Regional Di-
rector in his report dated February 12, 1982, recom-
mended that the Board overrule the employers' objec-
tions. On September 29, 1982, the Board issued its deci-
sion in Case 31-RC-5251 which adopted the Regional
Director's recommendation and certified the Union as
the exclusive collective-bargaining representative of the
employers' taxicab drivers. The employers refused to
recognize and bargain with the Union contending that
the Board's certification was invalid. The Union filed an
unfair labor practice charge with the Board challenging
the legality of the employers' refusal to bargain. The
matter was pending before the Board at the time of the
hearing in this case.
Moscheo, until his discharge on December 7, 1982,
was employed by Respondent since July 1980 as a taxi-
cab driver. Prior to his discharge his only misconduct
took place on September 8, 1981, when he engaged in
the act of "high flagging" 2 for which General Manager
Ashment issued him a disciplinary warning and a 3-day
suspension. Ashment viewed Moscheo as an "above av-
erage employee." It is undisputed that Moscheo was a
good income producer and that in February 1981, when
the Company last ranked employees for shift assignment
on the basis of their job performance, Moscheo was
ranked number 11 out of 300 drivers.
It was not until late October 1981 or November 1981
that Moscheo actively and openly supported the Union.
Prior to that he simply attended union meetings along
with scores of other employees. During the Union's or-
ganizational campaign immediately preceding the Janu-
ary 13, 1982 representation election, Moscheo actively
and openly campaigned on behalf of the Union and was
one of two employee observers for the Union at that
election. On March 21, 1982, Respondent was notified by
the Union that Moscheo was one of five employees on
the Union's negotiating committee. In May 1982 the
Union's representatives, whose offices were located in
San Franscico, California, and New York City, New
York, gave Moscheo the keys to the Union's Law Vegas
office and appointed him chief steward with the under-
standing that Moscheo would be the Union's contact in
Las Vegas who would be responsible for the mail, tele-
phone messages, and distribution of the Union's periodic
newsletters to the employees. Moscheo was in fact the
Union's most active employee adherent and it is undis-
puted that Respondent knew this.
On the other hand it is also undisputed that Respond-
ent's driver Robert D'Amore was outspoken in his oppo-
sition to union representation. D'Amore had been em-
ployed by Respondent since June 1, 1981. He had
2 The term "high flagging" refers to the act of neglecting to turn the
taxicab meter on when carrying a passenger.
worked previously as a taxicab driver for the Nellis Cab
Company since September 1, 1980, and transferred to
Respondent when the companies merged their operation.
It was not until December 1981 that D'Amore com-
menced to speak out against union representation. In Jan-
uary 1982, prior to the January 13, 1982 representation
election, D'Amore, at the request of General Manager
Ashment, served on a committee which consisted of
Ashment, D'Amore, and a few of Respondent's owners.
This committee spoke to the employees at a series of
seven or eight meetings in an effort to persuade them to
vote against union representation.s
2. A chronology
In early Octoner 1981, immediately after being award-
ed a rate increase by the Taxi Cab Authority, Respond-
ent instituted a new policy whereby the taxicab drivers,
who previously had not paid for their gasoline, now
shared the cost with Respondent, Moscheo, with three of
the other drivers, who were among those unhappy about
having to pay for their gasoline, went to a local televi-
sion station with their grievance. The television station
interviewed Moscheo who, during the interview, stated
that Respondent had started to charge its drivers for gas-
oline right after the Company had been awarded the
right to charge higher passenger fares. Moscheo stated
that the drivers did not feel that this was "fair" and
thought that the Company was "screwing" them. This
interview was shown by the television station on its
evening news programs. The next morning, General
Manager Ashment, who had watched this news program
and recognized Moscheo, summoned Moscheo to his
office. Ashment told Moscheo that he did not appreciate
his going on television and telling the whole city that
Respondent was "screwing its drivers," and that his first
inclination had been to "fire" Moscheo, and stated that
Moscheo should give the Company's new gas program a
chance and encourage the other drivers to do the same
thing. Moscheo indicated that he would not follow Ash-
ment's suggestion to encourage the drivers to give the
new gas program a chance and told Ashment that one
reason the employees needed to be represented by a
union was to prevent the Company from changing the
work rules every time the employees turned around.4
In the middle of December 1981 Robert D'Amore,
one of Respondent's taxicab drivers, was issued a termi-
nation slip signed by General Manager Ashment which
stated that he was terminated for having failed to turn in
s Based on D'Amore's testimony which was not denied by Ashment.
D'Amore, when he gave this testimony, impressed me with his sincerity.
4 The description of what took place during this meeting is based on
Moscheo's testimony. Ashment specifically denied having threatened to
discharge Moscheo. He also testified that he expressed his surprise that
Moscheo was involved with the Union, that he then stated, "[Glee whiz
John, you know we are trying to do this, that, and the other," that they
then discussed the various changes the Company had recently made and
also discussed the Company's Christmas bonus, and that the meeting
ended with Ashment telling Moscheo that he would like him to "go out
on the street and use some of the same enthusiam for our programs" as
he had exhibited on the television program. I have credited Moscheo's
version of this meeting because when they testified about the meeting
Moscheo demeanorwise impressed me as a more credible witness than
Ashment.
1058
YELLOW CAB CO. OF NEVADA
a complete book. D'Amore's supervisor, Jimmy Tinnell,
suggested that D'Amore talk to Ashment because he
(Tinnell) did not understand the termination slip.
D'Amore promptly met with Ashment, who initially ad-
vised him that the reason for his termination was that he
had been short on his book on a particular day. When
D'Amore adamantly insisted that this could not have
been the real reason for his termination, Ashment, after
shutting the door to his office, declared:
I will be very frank with you and honest with you
but I don't want it to get anywhere beyond this and
I will deny I said it if it comes back to me. You
were terminated by order of the owners .... You
were seen distributing union literature out at the air-
port the previous Sunday.
D'Amore replied that he had been working that Sunday
and had taken in over $200 that day. Ashment told him
that the report that he had been seen distributing union
literature at the airport had come from Sam Bruen, a
former supervisor and a friend of D'Amore. Ashment ad-
vised D'Amore to speak to Bruen and that Ashment
would check into the matter further. D'Amore spoke to
Bruen, who denied having made such a statement to
anyone. Bruen at D'Amore's request phoned Ashment
and spoke to him about this matter. Thereafter, Ashment
informed D'Amore that he checked D'Amore's trip sheet
for the Sunday in question and agreed that D'Amore
could not have been at the airport, and told D'Amore
that it had been a case of mistaken identity as there had
been another "guy" named "Bernie" at the airport dis-
tributing the union literature who had been mistakenly
identified as D'Amore. D'Amore, who had lost 3 days of
work, was reinstated by Ashment, who stated that he
would destroy the termination slip.5 It was at this point
I The above description of D'Amore's mid-December 1981 termination
and the revocation of that termination is based on D'Amore's testimony.
Ashment testified that prior to December 1981 D'Amore turned in a
short book and promised Ashment that he would not do this again, and
that when, in mid-December 1981, he broke his promise he was terminat-
ed. Ashment further testified that his reason for revoking the termination
was that Respondent's owners had previously instructed him to discharge
D'Amore for distributing literature at the airport and Ashment did not
want to give the owners the impression that in firing D'Amore he was
carrying out this illegal order. In connection with this testimony Ash-
ment admitted that some of Respondent's owners were unhappy about
employing employees who actively supported the Union and the owners
were putting pressure on him to "get rid" of them, that the owners had
instructed him to discharge three other employees who were engaged in
union activities, and that Sam Bruen, an owner of Nellis Cab Company,
had told Ashment that D'Amore was seen distributing union literature at
the airport. In crediting D'Amore's above-described version of his mid-
December 1981 termination and its revocation, I have relied on the fact
that in testifying about these events D'Amore testified in a straightfor-
ward and sincere manner and demeanorwise impressed me as an honest
witness and a more credible witness than Ashment. In addition, I note
that Ashment did not deny any of the above-described remarks attributed
to him by D'Amore. Quite the contrary, when asked if he had told
D'Amore that the reason for D'Amore's termination was that he had
been observed passing out union literature, Ashment was unable to deny
having made this admission to D'Amore. It is for all of these reasons that
I have credited D'Amore's testimony despite the fact that the record re-
veals that he is not a disinterested witness, having been discharged by
Respondent in January 1983 and having filed a charge with the Board
contesting his discharge which, at the time of this hearing, was pending
before the Board's Regional Office.
in time that D'Amore, who had been apathetic about the
subject of union representation, commenced to speak out
against union representation.
Once every 6 months Respondent's drivers bid for
their work shifts, days off, and the particular taxicabs
they drive. This bidding is done in order of strict seniori-
ty. On November 7, 1982, during the bid that was held
on that day, Moscheo, in the presence of between 100
and 200 drivers in Respondent's yard, initiated an argu-
ment with D'Amore concerning the seniority of
D'Amore and the three or four other former Nellis cab-
drivers who were employed by Respondent. D'Amore
and the other former Nellis cabdrivers had been permit-
ted by Respondent to use a certain amount of the time
they had worked for Nellis in computing their seniority
for purposes of the bid. Moscheo complained to
D'Amore that D'Amore and the other former Nellis taxi-
cab drivers were receiving preferred treatement from
Respondent in being permitted to use their time of em-
ployment with Nellis in computing their seniority for the
bid. Moscheo stated that the reason D'Amore and the
other former Nellis taxicab drivers were being accorded
this special treatement was that they were "brown
nosing" Respondent. Several of the drivers in the yard
indicated that they agreed with Moscheo that it was not
fair that the former Nellis taxicab drivers were being al-
lowed by Respondent to use their time of employment
with Nellis Cab in computing seniority for the bid. A
loud and heated argument took place between D'Amore
and Moscheo concerning this subject which lasted ap-
proximately 30 minutes. There was no physical violence
engaged in by the participants nor was there any threat
of physical violence. During the argument Moscheo
stated that the Union and Moscheo, as a member of the
Union's negotiating committee, would do everything that
they could to eliminate the seniority being accorded
D'Amore and the other former Nellis taxicab drivers
now employed by Respondent.
The next day, November 8, 1982, was D'Amore's day
off from work. He was telephoned at home by General
Manager Ashment who asked him to come to Ashment's
office. When he arrived there he found Ashment and
Milton Schwartz, one of Respondent's owners. Ashment
began the meeting by asking D'Amore what had taken
place the previous day between D'Amore and Moscheo.
D'Amore described what had taken place. Ashment
asked whether Moscheo and D'Amore had exchanged
any blows or pushed one another. D'Amore stated that
they had just engaged in a very loud argument. Ashment
indicated that he intended to discharge Moscheo and
asked whether D'Amore would write out a statement de-
scribing what had taken place. D'Amore responded by
stating that he felt that if Ashment discharged Moscheo
that it would make Moscheo look like a martyr to the
rest of the employees and thus make the Union stronger,
which would be a mistake because the Union, D'Amore
stated, did not have that much support among the em-
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. 6 Ashment responded by stating that Moscheo
would not be terminated.7
On November 18, 1982, Frank Hartnett visited Mos-
cheo at his home and told him that he had heard that
Susan Patridge was "going to hang him by the balls."
Hartnett had been a driver employed by Respondent,
and a member of the Union's negotiating committee,
until he was discharged by Respondent on November 15,
1982, for allegedly jamming Respondent's radio frequen-
cy thereby making it impossible for the dispatcher to
contact drivers. Susan Patridge, who had rented a room
in Moscheo's house from approximately June or July to
October 1, 1982, for herself and her daughter, was the
dispatcher on duty when Hartnett allegedly jammed Re-
spondent's radio system. Respondent had contested Hart-
nett's claim for unemployment compensation insurance,
and an unemployment compensation hearing involving
Hartnett's claim was scheduled for sometime in Decem-
ber 1982. Moscheo was Hartnett's representative in this
matter. When on November 18, 1982, Hartnett told Mos-
cheo that he had heard that Patridge had stated she was
"going to hang him by the balls," Moscheo concluded
that this meant that Patridge intended to give testimony
for Respondent in the unemployment compensation hear-
ing which would hurt Hartnett's case. Accordingly, on
November 18, 1982, immediately after Hartnett spoke to
him, Moscheo telephoned Patridge at her home. It is un-
disputed that Moscheo began the conversation by telling
Patridge that there was some mail waiting for her at his
house. The remainder of the conversation is in dispute.
Moscheo testified that he then told Patridge that he had
heard that she intended to hang Hartnett by the balls and
asked whether this was true, and that in response Pa-
tridge stated, "[H]e shouldn't have did what he did."
Moscheo testified he replied by stating, "[l]ittle girl there
is very strong union activity going on right now and you
should be very careful where people's jobs are con-
cerned because I don't want to see you hurt," and told
her it was time for his dinner and he would get in touch
with her later. Patridge, on the other hand, testified that
when Moscheo told her that he had heard that she was
going to hang Hartnett by the balls, she asked for the
name of the person or persons who had told him this,
and that Moscheo replied, "[N]ever mind who told me
As I have noted supra, D'Amore at this point in time was vocal in
his opposition to union representation.
7 The description of Ashment's November 8, 1982 conversation with
D'Amore and the way it was initiated is based on D'Amore's testimony.
Ashment testified that D'Amore told him that Moscheo and he had en-
gaged in a very heated discussion, with a lot of yelling, about the seniori-
ty of the former Nellis taxicab drivers and that Mosheo had stated that
the Union would see that their seniority was taken away. Ashment fur-
ther testified that D'Amore told him that he was not telling Ashment this
to get Mosecho in any trouble, that he did not think Moscheo should be
terminated for his conduct, but that D'Amore just wanted Ashment to be
aware of the fact that the drivers were upset about the "seniority situa-
tion." Schwartz, who was placed by both D'Amore and Ashment as
being present in the office during this conversation, testified that he as
not present. I have credited D'Amore's version of how the meeting was
initiated and what was said by Ashment because when D'Amore testified
about these matters D'Amore's demeanor was very impressive whereas
Ashment's was unimpressive. I also note that Ashment was unable to
recall whether it was he or D'Amore who initiated this meeting and that
he was vague and evasive when asked whether he indicated during this
meeting that it was his intention to discharge Moscheo.
that," and asked whether she in fact made the statement.
Patridge testified she responded in the negative, and that,
when, in response to her inquiry, Moscheo again refused
to tell her who told him she had made this statement, Pa-
tridge told Moscheo that if Moscheo brought that person
to her she would deny making that statement to the per-
son's face. Moscheo, according to Patridge, at this point
raised his voice and declared: "All I can tell you little
girl is when you go to testify, you had better be on the
right side of the fence or you are going to get hurt." Pa-
tridge replied, "Wait a minute," but was abruptly cut off
by Moscheo who stated he had to go to dinner and hung
up. When Moscheo and Patridge testified about this con-
versation Patridge's demeanor was good whereas Mos-
cheo's was poor; thus, I reject Moscheo's and credit Pa-
tridge's testimony.8
On September 29, 1982, as described supra, the Union
was certified by the Board as the exclusive collective-
bargaining representative of the drivers employed by Re-
spondent and the three companies which had merged
with it, but in order to contest the validity of the Board
certification Respondent had refused to recognize and
bargain with the Union. The Union's negotiation com-
mittee, including Moscheo, met with a union representa-
tive to decide what, if anything, the Union's response to
Respondent's refusal to bargain should be. They dis-
cussed the possibility of having the drivers engage in a
strike and of bringing to the public's attention the em-
ployees' grievances through the media. Thereafter,
during the months of October and November 1982, Mos-
cheo spoke to the employees and suggested that, in retal-
iation for Respondent's refusal to bargain with the
Union, the employees should strike Respondent during
the Consumers Electronic Convention scheduled for
early January 1983; that on December 13, 1982, the em-
ployees voice all of their grievances to the public
through the media; and that they boycott the several spe-
cial projects which Respondent had initiated to improve
its business.
Late in November 1982 General Manager Ashment
learned of Moscheo's aforesaid activity. He heard rumors
that the Union intended "to do something on December
13 which was going to blow the lid off of Respondent"
and also intended to strike Respondent during the Con-
sumers Electronic Convention scheduled for early Janu-
ary 1983, on December 1, 1982, Ashment contacted Mos-
cheo at his home and told him to report to Ashment's
office for a meeting prior to reporting for work that day.
Moscheo compiled and met with Ashment that day for
approximately 2-1/2 hours in Ashment's office.
Ashment began the meeting by indicating that he had
heard a rumor that the Union planned something for De-
cember 13 and was going to strike during the Consumers
8 This was not the only occasion when Moscheo threatened employees
in an effort to get them to support the position he was advocating rather
than Respondent's. Thus, the undenied and credible testimony of the
General Counsel's witness, D'Amore, is that in late November or early
December 1982 in speaking to a group of the drivers about a strike
against Respondent because of Respondent's refusal to bargain with the
Union Moscheo warned that, if "drivers turn fink" and did not support
the union strike, "somebody is going to get in the cabs and blow their
heads off."
1060
YELLOW CAB CO. OF NEVADA
Electronic Convention. He asked Moscheo about the
truth of this rumor. Moscheo indicated that he was re-
luctant to discuss these matters and instead raised the
subject of Frank Hartnett's discharge. Moscheo stated
that he thought Hartnett's discharge was not fair, ex-
plained why he felt this way, and stated that he thought
Hartnett had been discharged because he was a member
of the Union's negotiation committee. Ashment denied
this accusation, explained the reasons for Hartnett's dis-
charge, and asked Dispatch Supervisor Martinez to step
into the office to corrborate his explanation. O
When the discussion concerning Hartnett's discharge
ended, Moscheo advised Ashment that the drivers were
very upset because Respondent was ignoring the repre-
sentation election vote and was refusing to bargain with
the Union. He told Ashment that the drivers did not
think this was right and, because of this, were seriously
considering going to the media on December 13, 1982,
with their grievances. Moscheo described the various
grievances that the drivers intended to publicize through
the media. Ashment justified Respondent's actions with
respect to some of the grievances mentioned by Moscheo
and asked Moscheo not to publicize the grievances
through the media. Ashment explained to Moscheo that
such publicity while it might hurt Respondent might also
hurt the drivers' pocketbooks if customers in sympathy
with the employees' grievances refused to use Respond-
ent's taxicabs. Moscheo indicated that he still intended to
publicize the employees' grievances through the media as
scheduled. Ashment asked whether a meeting with the
owners would persuade the Union not to go to the media
with the employees' grievances. Moscheo stated that he
felt the Union would be agreeable to such a meeting in
place of going to the media with the employees' griev-
ances, but that the meeting would have to take place on
December 13, 1982, the date on which the Union had
planned on going to the media, and that Union Repre-
sentative Guay, who had made arrangements to be
present in Las Vegas on December 13, 1982, would have
to be present at the meeting. Ashment indicated that he
could see no objection to this but that he would have to
speak to the owners about the meeting and would speak
to Moscheo in a few days to let him know if the Decem-
ber 13 meeting was agreeable to the owners. Moscheo
also stated that he would determine whether such a
meeting was agreeable to the Union.
Also during this meeting Moscheo stated that the driv-
ers were so upset over Respondent's refusal to bargain
that they were also considering a strike and that the
Union intended to have the drivers strike early in Janu-
ary 1983 during the Consumers Electronic Convention.
Ashment asked how successful Moscheo thought such a
strike would be. Moscheo stated that he thought 85 per-
cent of the drivers would support it. Ashment indicated
that he felt Moscheo was being too optimistic. Moscheo
disagreed. Ashment then questioned the legality of the
strike. Moscheo replied by stating that such a strike
would be legal because the Union had been certified by
9 As I have noted supra, Hartnett, a member of the Union's negotiating
committee, had been discharged by Ashment on November 15, 1982.
'0 Martinez left the office immediately thereafter.
the Board and Respondent's refusal to bargain was an
unfair labor practice. Ashment informed Moscheo that
"any driver who was supposed to report for work and
did not report for work because of the strike would be
terminated." Moscheo stated that Respondent could not
terminate employees for striking and told Ashment that,
if Ashment telephoned a Board agent, whose business
card Moscheo gave Ashment, Ashment would find out
that such conduct would be illegal. Ashment, in Mos-
cheo's presence, telephoned the Board agent and after
speaking to the Board agent informed Moscheo that the
strike would be legal if it was an unfair labor practice
strike, but that Respondent would have the right "to hire
new drivers" in the absence of the strikers and that Re-
spondent would only be obligated to rehire the strikers
"as the Company saw fit and only if they needed them
and [Respondent] would have the right to review the
records to see if [Respondent] did want to hire them.""
On December 3, 1982, Moscheo received a memo
signed by Ashment dated December 3, 1982, which
stated:
O.K. for meeting on the 13th at 11 a.m. in my
office.
I would request that because this is not a negoti-
ating session but a question and answer session that
those in attendance be drivers and owners-(no
union people).
Pete, Milton, and Dave will be there.' 2
Upon receipt of this memo Moscheo telephoned Ash-
ment and stated that he had understood that Ashment
had indicated during their December I meeting that he
had no objections to Union Representative Guay being
present at the December 13 meeting and now his memo
indicated that no union representatives could attend.
Under the circumstances, Moscheo told Ashment that
he, Moscheo, would not attend the meeting and the
Union would simply go ahead with their plans to publi-
cize the employees' grievances on that date through the
media. Ashment responded by stating that the prohibi-
tion against union representatives attending the meeting
was not his doing and in effect begged Moscheo to
attend the December 13, 1982 meeting with the owners.
Moscheo agreed to attend the meeting.' 3
I The above description of the December I meeting between Mos-
cheo and Ashment is based on a composite of Moscheo's and Ashment's
testimony, except in two instances where their testimony was inconsist-
ent. Ashment denied that Mosheo asked that Union Representative Guay
be present at the December 13, 1982 meeting and, while admitting that he
threatened to terminate the taxicab drivers who engaged in a strike, testi-
fied that after speaking to the Board agent he told Moscheo that the
strikers could be terminated but had to be put on a preferential rehire list.
I have rejected Ashment's aforesaid testimony and credited Moscheo's, as
set forth above, because demeanorwise Moscheo impressed me as an
honest and reliable witness, a more credible witness than Ashment, when
he testified concerning these disputed matters.
it "Pete, Milton, and Dave" refer to Pete Eliades, Dave Weldon, and
Milton Schwartz, three of Respondent's six owners.
a" The above description of Moscheo's telephone conversation with
Ashment is based on Moscheo's testimony. Ashment testified that this
conversation took place on either December I or 2 and that it was during
this conversation, not during the December I meeting, that Moscheo
Continued
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 5, 1982, Richard Martinez, Respondent's
dispatch supervisor, was riding home after work at ap-
proximately 3:45 p.m. with dispatcher Susan Patridge
and taxicab driver Shipp in Patridge's automobile. Nor-
mally, Martinez used his own automobile but on this day
his automobile had broken down so he rode with Pa-
tridge since they resided in the same area. During the
ride Martinez received the impression from Patridge's
demeanor that something was bothering her. When Mar-
tinez asked what was "bugging" her, Patridge replied by
stating, "Nothing, I don't want to talk about it." But
after a short interval Patridge told Martinez that approxi-
mately a week before she had received a threatening
telephone call from Moscheo concerning her testimony
with respect to Frank Hartnett's discharge. Martinez
asked why she had not told him about this previously.
Patridge stated that she was afraid Moscheo would get
mad at her inasmuch as she had lived in his house and
knew .how he could be. Also Patridge stated she was
afraid that if she reported the incident the Company
would get mad at Moscheo and the incident "would be
blown out of proportion."
During the evening of December 5, 1982, Martinez,
who was not scheduled to work at Respondent's prem-
ises the next day, telephoned General Manager Ashment
at his home and told him that Patridge had advised him
that she had received a threatening telephone call from
Moscheo concerning her testimony about Hartnett's dis-
charge. Ashment stated he would speak to Patridge the
next day about the incident.
On Monday, December 6, 1982, shortly after he ar-
rived at work at 7:30 a.m., Ashment called Patridge to
his office and informed her that Martinez had told him
that she had been threatened by Moscheo and asked her
for an explanation. Patridge indicated that she did not
want to discuss the matter. Ashment stated that he
needed to be informed about such conduct inasmuch as
the Company could not tolerate it. Patridge then told
Ashment that Moscheo had telephoned her at home and
told her that if she testified against Frank Hartnett she
could get hurt. Patridge explained the she had not come
forward earlier with this information because she felt
that Ashment would terminate Moscheo and she was
afraid. Ashment asked whether Patridge would write a
statement for him with the details and sign it. Ashment
explained to Patridge that the reason he needed a signed
statement was that a threat like the one she was attrib-
uting to Moscheo was serious and was grounds for ter-
mination, and that if Ashment did in fact terminate Mos-
cheo for this conduct Moscheo would in all probability
file an unfair labor practice charge with the National
Labor Relations Board and there also could be litigation
connected with Moscheo's claim for unemployment com-
pensation and Patridge would be involved as a witness.
Patridge indicated she was very reluctant about 'getting
involved and asked whether she could think about the
matter. Ashment told her to think it over and do what-
asked that Union Representative Guay be present at the December 13
meeting since Guay was scheduled to be in town that day. As I have
indicated supra, I have rejected Ashment's testimony on this point inas-
much as Moscheo impressed me as a more credible witness.
ever she had to do but that if she gave him a signed
statement he intended to terminate Moscheo and Pa-
tridge would be involved. Patridge returned to her work
station and sometime within the next 2 hours she decided
to write out a statement describing Moscheo's threat and
in fact wrote out such a statement which she gave to
Ashment shortly before noontime. The statement which
Patridge signed reads as follows:
On Nov. 20, 1982 I was at home after work and I
received a phone call from John Moscheo. I know
it was John Moscheo because I rented a room in his
residence for about 4 months from June '82 to Oct.
'82. He said he heard a rumor that I said I was
going to hang Frank Hartnett on his termination. I
said I hadn't said it. He refused to tell me who said
it, but followed with "Little girl when you go to
testify you better be on the right side of the fence
or you could get hurt."
Ashment asked whether Patridge was sure that Novem-
ber 20, 1982, was the day on which her conversation
with Moscheo took place. Patridge replied in the nega-
tive. She stated that she was sure it took place about 1
week after Hartnett's November 15, 1982 discharge. Ash-
ment advised her that under the circumstances she
should insert in the statement the phrase "or about the
week of" between the words "on" and "November 20,
1982." Patridge took the statement back to her work sta-
tion and made the aforesaid insertion, but when she re-
turned to Ashment's office later that day to give him the
statement he had left for the day, so she gave him the
statement when he arrived at work the next day, Decem-
ber 7, 1982, and dated it December 7, 1982.
On December 6, 1982, after Patridge had informed
him of Moscheo's threat, as described above, Ashment
attended a previously scheduled meeting of Respondent's
board of directors. During the meeting Ashment in-
formed the directors that a taxicab driver had threatened
an employee and explained the circumstances of the
threat and was asked by the directors, "What is the
problem, just fire him." Ashment told them that the
problem was that the taxicab driver "has been a good
employee but he is union" and that the incident occurred
approximately 10 days previously but he had just learned
about it; he asked the directors what he should do and
recommended that if Patridge gave him a signed state-
ment Moscheo be terminated. The directors agreed with
his recommendation.
On receiving the signed statement from Patridge early
in the morning of December 7, 1982, Ashment promptly
wrote out Moscheo's termination slip which was given
to Moscheo later that day when he reported for work.
The termination slip, which is entitled "Notice of Termi-
nation of Employment," is dated December 7, 1982, and
signed by Ashment and is exed in the space marked
"conflict with other workers." In the space entitled "ex-
planation" Ashment wrote "making bodily harm threats
to a female employee of this company." At no time did
either Ashment or someone else from management ever
ask Moscheo for his version of what had taken place
during his conversation with Patridge.
1062
YELLOW CAB CO. OF NEVADA
On January 26, 1983, Robert D'Amore, a taxicab
driver employed by Respondent, was discharged. D'A-
more's undenied testimony is that sometime thereafter
two of Respondent's owners, Milton Schwartz and Peter
Eliades, promised him that he would be reinstated. On
March 1, 1983, D'Amore telephoned Schwartz and asked
him when he was going to be reinstated. Schwartz told
him that he was not going to be reinstated. D'Amore re-
minded Schwartz that he had given him his word that he
would be reinstated with full backpay because he had
taken and passed a polygraph test at Schawartz' request.
D'Amore stated that Schwartz had never in the past
gone back on his word. Schwartz replied by stating that
his intent had been to reinstate D'Amore with full back-
pay, but that he had become aware that D'Amore had
been seen on several occasions with Moscheo, "the union
representative," and had been seen in Moscheo's office
and even eating lunch with him. D'Amore expressed sur-
prise that this would constitute a reason for not reinstat-
ing him. Schwartz replied: "There is no way I can hire
anybody who has [anything] to do with the Union or
Moscheo." This ended the conversation. 14
While employed by Respondent, D'Amore, as I have
described supra, openly campaigned on behalf of Re-
spondent against union representation. One of Respond-
ent's owners, Pete Eliades, shortly after the Union's Sep-
tember 29, 1982 certification, told D'Amore on three or
four occasions that the Union's certification was mean-
ingless because as far as he was concerned the Union
"was never going to be there" because Eliades would
shut down the doors of the Company and of the Star
Cab Company, which he owned in its entirety, before he
allowed that to happen. 15
14 The description of this conversation is based on D'Amore's testimo-
ny. Schwartz testified that D'Amore told him he would be issuing a sub-
poena to Schwartz to appear as a witness at D'Amore's unemployment
compensation hearing and that D'Amore also told him that he had unsuc-
cessfully tried to get his job back. Schwartz denied mentioning the Union
during this conversation and denis informing D'Amore that he could not
reinstate because he had been seen with Moscheo. I have credited D'A-
more's version of this conversation because when he testified about the
conversation his demeanor was good whereas Schwartz' was poor. In as-
sessing D'Amore's credibility I have considered that he is not a distinter-
ested witness because at the time of the hearing he had been discharged
by Respondent and had filed unfair labor practice charges with the Board
claiming that this discharge was illegally motivated. In view of this I was
especially observant of D'Amore. He impressed me as an honest witness.
1 Based on D'Amore's testimony. Eliades testified that on numerous
occasions D'Amore told him that he, D'Amore, was opposed to union
representation, but that Eliades never indicated to D'Amore that Eliades
was opposed to union representation and did not threaten to shut down
the door of the Company to avoid union representation. Indeed, Eliades
testified, "I have nothing against the Union, I have worked for the
Union, I have been a union member for 17 years, and there is nothing
wrong with the Union when it is on a 50/50 basis." He also testified that
on "many occasions" he told D'Amore, "I have nothing against unions.
If they come in we will sit down and negotiate with them." However,
later in his testimony Eliades admitted that he once told D'Amore, if the
Union succeeded in organizing the employees of the Star Cab Company,
a company wholly owned by Eliades, that: "If they organize and they
win, what are they going to do? The best thing they can do, just strike
me and close me down." This is hardly consistent with his previous testi-
mony which portays him as an employer who would welcome a union
with open arms. I have credited D'Amore's above-described remarks at-
tributed to Eliades because demeanorwise he impressed me as an honest
witness whereas Eliades did not.
3. Discussion and conclusionary findings
a. Moscheo's discharge '
I am persuaded that the General Counsel has estab-
lished by a preponderance of the evidence that Mos-
cheo's union activity was a motivating factor in Re-
spondent's decision to discharge him. I have reached this
conclusion for the following reasons.
Moscheo was the leading union adherent employed by
Respondent. He was one of the Union's two observers at
the January 13, 1982 representation election and was
thereafter appointed to the Union's negotiation commit-
tee and designated as the Union's chief steward. Since
the nearest union representative was stationed thousands
of miles from Las Vegas, Moscheo was designated by
the Union to act as the Union's contact in its dealings
with the employees and Respondent. It is undisputed that
Respondent knew that Moscheo was the leading and
most active union adherent among its employees.
Respondent was opposed to the Union representing its
employees. This is evidence by the fact, as described in
detail supra, that prior to the January 13, 1982 represen-
tation election Respondent held a series of seven or eight
meetings with its employees in an effort to persuade
them to vote against union representation.
Respondent expressly indicated that it was hostile to-
wards Moscheo because of his union activity. Thus, as
described in detail supra, in March 1983 one of Respond-
ent's owners, Milton Schwartz, reneged on his promise
to reinstate driver Robert D'Amore if D'Amore passed a
polygraph test because, as Schwartz explained, D'Amore
had been seen on several occasions with Moscheo, "the
union representative," and Schwartz could not reinstate
anyone "who had to do with the Union or D'Amore."
Respondent indicated that it was willing to take illegal
and drastic steps in order to defeat the Union and to
avoid bargaining with the Union. As I have found supra,
it is undisputed that Respondent's general manager, Ash-
ment, was told by more than one of Respondent's
owners that they were unhappy about employing em-
ployees who actively supported union representation and
instructed Ashment to "get rid" of the union activists
and specifically instructed him to discharge three named
employees because of their union activities. Also, as de-
i6 In determining whether, as alleged in the complaint, Respondent
discharged Moscheo because of his union activities in violation of Sec.
8(aX3) and (1) of the Act, I have herein applied the Board's test set forth
in Wright Line, 251 NLRB 1083, 1089 (1980), approved in NLRB v.
Tranportation Management Corp., 103 S.Ct. 2469 (1983), by the Supreme
Court, wherein the Board stated that an 8(aX3) and (I) violation is estab-
lished where the Oeneral Counsel has shown that an employer's opposi-
tion to protected activity was a "motivating factor" in a decision to take
adverse action against an employee, and where the employer, in the face
of such a showing, has failed to "demonstrate that the [adverse action]
would have taken place even in the absence of protected conduct." It is
also settled that "under [Section 8(aX3) and (1)], it is undisputed that if
the employer fires an employee for having engaged in union activities
and has no other basis for the discharge, or if the reasons that he proffers
are pretextual, the employer commits an unfair labor practice." NLRB r.
Transportation Management Corp., ibid. In other words, a violation of
Sec. 8(aX3) is made out where the record shows that an employer has
seized on a legitimate reason as a pretext in order to cover up its actual
discriminatory motive. See, e.g., NLRB v. Berger Transfer Co., 678 F.2d
679, 691-692 (7th Cir. 1982), and cited cases.
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in detail supra, following the Union's January 13,
1982 election victory and its certification by the Board
on September 29, 1982, one of Respondent's owners,
Pete Eliades, told employee D'Amore on more than one
occasion that the union certification was meaningless be-
cause Eliades would shut down Respondent before it
ever recognized the Union.
General Manager Ashment on at least one occasion
carried out Respondent's owners' instructions to dis-
charge employees because of their union activities. As I
have described in detail supra, Ashment believed that
D'Amore had been distributing union literature. Ash-
ment, in discharging D'Amore, used as a pretext the fact
that D'Amore had recently failed to turn in a complete
book.17
In October 1981, as described in detail supra, when
Moscheo appeared on television and publicized the driv-
ers' grievance of having to pay for their gasoline, Gener-
al Manager Ashment learned for the first time that Mos-
cheo was a union activist and promptly summoned him
to his office and illegally threatened to discharge him for
having publicized the drivers' grievance through the
media. Thereafter, as described in detail supra, in No-
vember 1982 Ashment seized on an argument initiated by
Moscheo with driver D'Amore and intended to use this
as an excuse to discharge Moscheo because of his union
activity, but was dissuaded from doing so by D'Amore,
an outspoken antiunion employee, who in effect pointed
out to Ashment that the pretextual basis for the dis-
charge was so obvious that it would make Moscheo a
martyr in the eyes of the employees which would in-
crease the Union's suppport among the employees.'
s It
was only 1 month later that Ashment discharged Mos-
cheo for threatening dispatcher Patridge.
In summation, Respondent was opposed to union rep-
resentation; Respondent was hostile towards Moscheo
because of his role as the leading union adherent among
its employees; Respondent's owners instructed General
Manager Ashment to discharge employees who were
union activists and in at least one instance Ashment car-
ried out this instruction by discharging an employee for
engaging in union activity and used a legitimate business
reason as an excuse to justify the discharge; and, only I
month before Moscheo's discharge, Ashment was dis-
suaded from using a blatantly pretextual reason as an
"? As described in detail supra, D'Amore's discharge was revoked and
he was reinstated when Ashment discovered that D'Amore had not in
fact engaged in any union activity, but that it was a case of mistaken
identity.
1" My conclusion that Ashment intended to use the argument initiated
by Moscheo with D'Amore as a pretext to discharge Moscheo because of
his union activities is based on the fact that Ashment indicated to
D'Amore that he intended to fire Moscheo after learning that Moscheo
had stated that the Union, and Moscheo as a member of the Union's ne-
gotiating committee, intended to take steps to change the method which
the Company was using to compute the seniority of the former Nellis cab
drivers now in its employ. Also the record reveals that Ashment indicat-
ed that it was his intention to discharge Moscheo even though he had
been assured by D'Amore that Moscheo and D'Amore had only engaged
in a loud verbal argument. In addition Ashment had no reason to believe
that any threats had been expressed by Moscheo, other than that the
Union would take steps concerning the method used to compute the se-
niority of the former Nellis cab drivers, or that the argument interfered
with the work of D'Amore, Moscheo, or any of the other employees
who were present.
excuse to discharge Moscheo for his union activities. It is
for all these reasons that I am persuaded that the Gener-
al Counsel has established that Respondent's hostility to-
wards Moscheo because of his union activities was a mo-
tivating factor in its decision to discharge him.' 9
I shall now evaluate Respondent's defense and deter-
mine whether Respondent has established that it would
have discharged Moscheo on December 7, 1982, even in
the absence of his union activities. As described supra,
Moscheo's December 7, 1982 termination slip states that
he was being discharged for "making bodily harm
threats to [Susan Patridge]." The circumstances which
resulted in the issuance of the termination slip have been
described in detail supra, and are briefly restated as fol-
lows. On November 15, 1982, Respondent discharged
driver Frank Hartnett for allegedly jamming Respond-
ent's radio frequency, thereby making it impossible for
the dispatcher, Susan Patridge, to contact the drivers.
Respondent contested Hartnett's claim for unemploy-
ment compensation and an unemployment compensation
hearing was scheduled by the State of Nevada for some
time in December 1982. Hartnett apppointed Moscheo to
act as his representative for purposes of the unemploy-
ment compensation proceeding. On November 18, 1982,
Hartnett told Moscheo that he had heard that Patridge
intended to give testimony for Respondent at the unem-
ployment compensation hearing which would be damag-
ing to Hartnett's case. Moscheo immediately phoned Pa-
tridge and, during the ensuing conversation, in a raised
tone of voice warned Patridge that when she testified at
Hartnett's unemployment compensation hearing she "had
better be on the right side of the fence or you are going
to get hurt" and abruptly ended the conversation. It was
not until December 6, 1982, that Patridge told Respond-
"' In concluding that a preponderance of the evidence in the record as
a whole establishes that Respondent's union animus was a motivating
factor in its decision to discharge Moscheo I have not relied on the fol-
lowing considerations: (1) Ashment's failure to secure Moscheo's version
of the episode which resulted in Ashment's decision to discharge him; (2)
the failure of Ashment on September 8, 1981, prior to Moscheo's union
activities, to discharge Moscheo for "high flagging"; (3) Ashment's con-
sultation with Respondent's board of directors before effectuating his de-
cision to discharge Moscheo; and (4) the timing of the discharge insofar
as it took place shortly after Ashment learned that Moscheo in his role as
the Union's chief steward was soliciting the employees to protest Re-
spondent's refusal to bargain by engaging in a strike and by publicizing
its employment grievances through the media. Regarding (1), Ashment's
credible and uncontradicted testimony, which when viewed in the light
of the whole record is not inherently implausible, is that his failure to get
Moscheo's side of the story before reaching his discharge decision was
not unusual as his usual practice when informed that an employee had
engaged in a serious act of misconduct was to discharge the employee
and then to listen to the employee's story and to rescind the discharge if
the story rang true. Regarding (2), Respondent's policy manual does not
state either directly or by implication that the act of "high flagging" will
result in an employee's immediate termination and the credible and un-
contradicted testimony of Ashment, which is not impugned by the record
as a whole, is that Ashment normally does not terminate a driver for a
first offense of "high flagging." Regarding (3), since the discharge of a
leading union adherent such as Moscheo was certain to lead to litigation,
Ashment's discussion with the board of directors about the matter before
implementing his decision to discharge Moscheo does not warrant an in-
ference of illegal motivation. And, regarding (4), this is not a case where
Ashment tolerated Moscheo's misconduct until he learned of Moscheo's
union activities; rather here Ashment acted on Moscheo's misconduct im-
mediately on learning about it.
1064
YELLOW CAB CO. OF NEVADA
ent's general manager Ashment about this threat at
which time Ashment decided to discharge Moscheo for
threatening Patridge. In short the record reveals that: (1)
Moscheo warned Patridge that she would "get hurt" if
the testimony she gave at Hartnett's unemployment com-
pensation hearing was damaging to Hartnett's case; (2)
this threat by its very nature was reasonably calculated
to cause Patridge and Respondent to believe that Mos-
cheo's use of the phrase "get hurt" was synonymous
with physical abuse; and (3) Respondent discharged
Moscheo for making this threat as soon as the threat was
brought to its attention.
I am persuaded that even absent Moscheo's union ac-
tivities General Manager Ashment during the normal
course of business would have discharged Moscheo
when Ashment learned that he had threatened to hurt
Patridge if she gave testimony damaging to Hartnett at
Hartnett's unemployment compensation hearing. Mos-
cheo's threat ranks among the most flagrant and egre-
gious types of employee misconduct for which an em-
ployee would ordinarily be expected to be discharged. It
was not only reasonably calculated to lead Patridge to
believe that Moscheo meant to abuse her physically, but
the clear intent of the threat was to coerce Patridge into
giving testimony at Hartnett's State of Nevada unem-
ployment compensation hearing which would not be
harmful to Hartnett's case, even if Patridge had to
commit perjury. Also there is no evidence that such con-
duct or conduct of a similar nature has been condoned
by Respondent. 20 It is for these reasons that I find that
Respondent has established that Moscheo would have
been discharged on December 7, 1982, even absent his
union activities. I recognize that Respondent welcomed
and was looking for an excuse to discharge Moscheo be-
cause of his union activities, and was aware that the le-
gality of Moscheo's discharge would be closely scruti-
nized, but on balance I conclude that Moscheo's flagrant
misconduct caused his discharge and would have done
so even in the absence of his union activities. 2 ' I there-
20 The fact that Supervisor Martinez on more than one occasion
merely verbally warned employees for physically threatening one another
is not comparable to the instant situation where the object of the threat
was to coerce Patridge into giving testimony at a State of Nevada unem-
ployment compensation hearing which would not be harmful to the
claimant, even if Patridge had to commit perjury. In addition, the record
reveals that Respondent has in fact discharged employees for threatening
other employees with physical abuse. On December 7, 1982, the same
day as Moscheo's discharge, one of Respondent's supervisors discharged
driver Joe Nolan for cussing and physically threatening a female employ-
ee and on October 20, 1980, Ashment discharged driver Mike Harris for
threatening a dispatcher with bodily harm. I recognize that Nolan's work
performance was generally unsatisfactory, whereas Moscheo's was well
above average, and that Harris had only approximately 7 months' seniori-
ty at the time of his discharge, whereas Moscheo had approximately 2-
1/2 years of seniority; but I also note that Moscheo's employment record
was not unblemished as in September 1981, as described supra, he re-
ceived a 3-day disciplinary suspension for "high flagging." In any event,
as I have indicated supra, I am of the opinion that the offense of threat-
ening an employee with physical violence is not comparable to, nor is it
nearly as serious as, making such a threat with the intent to influence the
recepient's testimony at a State of Nevada unemployment compensation
hearing.
IL See P. G. Berland Paint City, 199 NLRB 927, 927-928 (1972), where
the Board stated:
On the record it is fair to assume that the Respondent entertained
a desire to get rid of [the alleged discriminatee], whose union activi-
fore shall recommend that the portion of the complaint
alleging Moscheo's discharge as violating Section 8(a)(1)
and (3) of the Act be dismissed.
b. General Manager Ashment threatens to discharge
employees for engaging in a strike
The complaint alleges that Respondent, through its
General Manager Ashment, violated Section 8(a)(1) of
the Act by informing an employee that employees who
failed to report for work because of a strike would be
terminated. In this respect the record, as I have de-
scribed in detail supra, reveals that on December 1, 1982,
Moscheo, in response to Ashment's inquiry, told Ash-
ment that the drivers intended to protest Respondent's
refusal to bargain with the Union by ceasing work and
engaging in a strike during the January 1983 Consumers
Electronics Convention. Ashment questioned the legality
of the strike and threatened to terminate any driver who
supported the strike. Ashment's threat to discharge em-
ployees who supported the strike was a blatant violation
of Section 8(a)(1) of the Act. 2 2
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 2 3
ORDER
The Respondent, Yellow Cab Company of Nevada,
Inc., Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening to terminate employees if they engage
in an economic or an unfair labor practice strike.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
ties it resented, and was pleased to have an opportunity present itself
for doing so. But that alone is not enough to establish that the dis-
charge was in violation of Section 8(a)(3). The mere fact that an em-
ployer may want to part company with an employee whose union
activities have made him persona non grata does not per se establish
that a subsequent discharge of that employee himself obliges his em-
ployer by providing a valid independent reason for discharge - i.e.,
by engaging in conduct for which he would have been discharged
anyway - his discharge cannot properly be labeled a pretext and
ruled unlawful.
'2 In so concluding I have considered whether Ashment's subsequent
remarks made during his December I conversation with Moacheo had
the effect of repudiating his threat to discharge the strikers. I think not.
Although later during this conversation Ashment conceded the legality
of the strike if it was an unfair labor practice strike, and indicated that
the Company would have the right to hire new drivers to take the place
of the strikers, Ashment did not expressly repudiate or otherwise disavow
his earlier threat to discharge the strikers. Quite the contrary, Ashment's
later comment to Moscheo, that in rehiring the strikers Respondent
would have the right to review their past employment records to decide
whether Respondent wanted to hire them, was reasonably calculated to
lead Moscheo to believe that Respondent intended to terminate the strik-
ers and to treat them as new employees for purposes of reemployment.
aS 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.
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its Las Vegas, Nevada facility copies of the
attached notice marked "Appendix." 24 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
"4 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."
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges that Respondent violated the
Act other than found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to terminate employees if they
engage in an economic or unfair labor practice strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
YELLOW CAB COMPANY OF NEVADA, INC.
1066