Ace Cab

National Labor Relations Board - Board Decisions

Jan 15, 1992

301 N.L.R.B. 119 (N.L.R.B. 1992)

119
301 NLRB No. 16
ACE CAB
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In affirming the judge’s 8(a)(3) finding with respect to Panaccione’s dis-
charge, we do not consider Panaccione’s offer of a tip (or a bribe) to Super-
visor Brooks to be acceptable, much less protected, conduct. We note, how-
ever, that the evidence presented here that Brooks had not discharged others
who engaged in such activity previously and had never stated to any driver
Brooks’ own aversion to such conduct (if that, in fact, was Brooks’ view) re-
quires but one conclusion—that Brooks did not consider Panaccione’s conduct
to be grounds for discharge. Thus, we conclude that Panaccione’s offer of a
‘‘tip’’ was not the true reason for discharge. Neither do we rely on the fact
that the company rules do not specifically prohibit employee tipping of super-
visors.
2 We shall modify the judge’s reinstatement language to conform to that tra-
ditionally used by the Board.
Ace Cab, Inc., ABC Union Cab Company, Inc.,
Vegas Western Cab, Inc., a North Las Vegas
Cab Company and United Steelworkers of
America, AFL–CIO–CLC. Cases 28–CA–9970
and 28–CA–10028
January 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 18, 1990, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party filed
answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ace
Cab, Inc., ABC Union Cab Company, Inc., Vegas
Western Cab, Inc., a North Las Vegas Cab Company,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Pat Panaccione immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the judge’s decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT terminate employees because they en-
gaged in union or other protected concerted activities.
WE WILL NOT threaten our employees with unspec-
ified reprisals because of their union activities.
WE WILL NOT threaten our employees with the ces-
sation of operations before we will sign a contract with
the Union.
WE WILL NOT tell employees that we will not come
to terms with or sign a contract with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Pat Panaccione immediate and full
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make Pat
Panaccione whole, with interest, for any loss of pay
suffered as a result of our discrimination against him.
WE WILL remove from our files and records any ref-
erences to the discharge of Pat Panaccione and notify
him in writing that this has been done and that evi-
dence of this termination will not be used as a basis
for future personnel action against him.
ACE CAB, INC., ABC UNION CAB COM-
PANY, INC., VEGAS WESTERN CAB, INC.,
NORTH LAS VEGAS CAB COMPANY
Cornele A. Overstreet, for the General Counsel.
Kevin C. Efroymson, of Las Vegas, Nevada, for the Respond-
ent.
Henry M. Willis (Schwartz, Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Las Vegas, Nevada, on February
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1989 unless otherwise indicated.
2 The transcript in this case skips from p. 231 to p. 300. General Counsel
should ensure that the NLRB was not inadvertently charged for the missing
pages.
22 and 23, 1990,1 pursuant to two separate complaints issued
by the Regional Director for the National Labor Relations
Board for Region 28 on November 15 (Case 28–CA–9970)
and on December 19 (Case 28–CA–10028) and which are
based on charges filed by United Steelworkers of America,
AFL–CIO–CLC (Union or Charging Party) on October 5
(Case 28–CA–9970), November 17 (Case 28–CA–10028),
and on December 19 (amended charge Case 28–CA–9970).
An order consolidating cases was issued by the Regional Di-
rector on December 20. The complaint alleges that Ace Cab,
Inc., ABC Union Cab Company, Inc., Vegas Western Cab,
Inc., and a North Las Vegas Cab Company (Respondent)
have engaged in certain violations of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act).
Issues
(1) Whether Respondent violated Section 8(a)(1) of the
Act because on or about September 16, its supervisors com-
mitted one or more of the following acts:
(a) Threatened employees with unspecified reprisals be-
cause of their union sympathies or activities;
(b) Threatened employees with the cessation of operations
before Respondent would sign a contract with the Union;
(c) Informed employees that it would be futile for their
representative to engage in further collective bargaining with
Respondent.
(2) Whether Respondent violated Section 8(a)(1) and (3)
of the Act when it terminated its employee Pat Panaccione
because Panaccione joined, supported, or assisted the Union,
or engaged in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, and
in order to discourage employees from engaging in such ac-
tivities or other concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel, Charging Party, and Respondent.2
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that Ace Cab, Inc., ABC Union Cab
Company, Inc., Vegas Western Cab, Inc., and a North Las
Vegas Cab Company are affiliated business enterprises with
common officers, ownership, directors, management, and su-
pervision; have formulated and administered a common labor
policy affecting employees of those operations; have shared
common premises and facilities; have provided services for
and made sales to each other; and have held themselves out
to the public as a single integrated business enterprise. Ac-
cordingly, the companies named above constitute a single in-
tegrated business enterprise and a single employer within the
meaning of Section 2(2) of the Act. Respondent further ad-
mits that Ace Cab, Inc., ABC Union Cab Company, Inc.,
Vegas Western Cab, Inc., and a North Las Vegas Cab Com-
pany, are Nevada corporations which operate a taxicab busi-
ness and which have maintained a place of business located
in Las Vegas, Nevada. Respondent further admits that during
the past year, in the course and conduct of its business, that
its gross volume exceeded $500,000 and that annually it pur-
chases and receives at its Las Vegas facility goods and mate-
rials valued in excess of $50,000 from firms located outside
the State of Nevada. Accordingly it admits, and I find, that
it is an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that United Steelworkers of
America, AFL–CIO–CLC is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On or about September 16, the alleged discriminatee, Pat
Panaccione, a union supporter and organizer, experienced a
traffic accident while driving a brand new taxicab. Although
Panaccione’s injuries were minor, the damage to the cab was
extensive. After receiving medical attention for his injuries at
a local hospital, Panaccione returned to Respondent’s yard
where he engaged Respondent’s owner, Charles Frias, in a
conversation. On November 10, Panaccione was terminated
by Road Supervisor Richard Brooks. The content of the ear-
lier conversation is allegedly linked to the motivation for the
discharge. To decide these and related questions, I turn to the
record.
1. Background
Respondent maintains a single facility for all cabs from its
four constituent companies. This facility or ‘‘yard’’ is located
about 1-1/2 miles from the so-called Las Vegas Strip, a sec-
tion of Las Vegas Boulevard where most of the major hotel-
casinos are located. All cabs are required by state law to be
licensed through the issuance of medallions by the Nevada
Taxi Cab Commission. Respondent, through its owner, Frias,
holds 140 medallions, broken down as follows: 25 to Vegas
Western, 51 to Ace, and the remainder divided between ABC
Union Cab and A North Las Vegas Cab. During particularly
busy periods, such as the annual computer convention
(Comdex), beginning the weekend of November 10, the Taxi
Cab Commission issues temporary medallions. Respondent
received authority to operate 40 additional cabs during this
convention week. Respondent’s 10 competitors also received
temporary authority to operate additional cabs.
Except for a North Las Vegas Cab, the operation of the
other three Respondent companies is essentially the same.
That is, drivers may pick up fares and drive them in and
around the greater Las Vegas area without major restrictions.
A North Las Vegas Cab drivers, on the other hand, cannot
work the strip, nor pick up fares at the airport, although they
may drive fares to the airport. Generally, only new drivers
work for a North Las Vegas Cab while they learn radio pro-
cedures and the geography of the area. When openings occur
121ACE CAB
in the other three companies, drivers from North Las Vegas
Cab are transferred, usually by seniority. Driver income then
increases quite substantially.
During the hearing, Frias was called by General Counsel
as an adverse witness. Frias testified that he spends much or
most of his working time driving the streets of Las Vegas
to police the driving habits and honesty of his drivers. While
so engaged, Frias leaves the day-to-day management of the
Company to General Manager Ed Schenkel, who did not tes-
tify. Schenkel works primarily in the office, hiring and firing
drivers and ensuring that Respondent’s cabs are fully manned
around the clock, 7 days a week. Occasionally, a ‘‘shift is
blown,’’ i.e., due to a shortage of drivers, not all available
cabs are on the street during a given shift.
Schenkel is assisted by a midlevel of supervision con-
sisting both of road supervisors and shift supervisors. Rich-
ard Brooks, who terminated Panaccione on November 10,
was then working as a road supervisor, whose primary duties
were various hotel-casinos, to drive his vehicle on the streets
of Las Vegas policing the driving habits of drivers, and to
attend to driver traffic accidents. Brooks and other road su-
pervisors were also generally responsible for ensuring driver
compliance with company rules and policies.
To drive the 140 authorized cabs, Respondent maintains a
roster of about 500 drivers. Yearly turnover of drivers runs
between 35 to 40 percent. This high rate is based partly on
discipline of drivers as more thoroughly discussed below,
and partly on occasional availability of more desirable jobs,
as for example, when a new hotel opens in Las Vegas. Al-
though a few drivers have worked for Respondent for over
20 years, the nature of the business dictates that a driver with
years or more seniority is considered a long-term employee.
At the beginning of each shift, shift supervisors set up
driver trip sheets, and oversee the assignment of cabs to indi-
vidual drivers. In theory, cabs are assigned to drivers for 90
days pursuant to a seniority-based bid system. This procedure
and other company procedures have been altered by a long-
established practice of tipping supervisors for more desirable
cabs, as more fully explained below.
Drivers are paid approximately 45 percent of total daily re-
ceipts (book), less $6 per day for gas. Respondent receives
55 percent of book and drivers keep all tips. A good day for
drivers is $300 book and about $100 in tips. An average day
is $150 book and $30–$40 in tips. Generally drivers work a
10- or 11-hour shift up to 6 or 7 days per week. If Respond-
ent is short drivers on a given shift (blowing a shift), a driver
might be asked to work on his day off, perhaps with a prom-
ise of future favors.
By contrast to drivers, shift and road supervisors are paid
a salary, usually $55 per day and work 5 or 6 days per week.
Some but not all supervisors formerly worked as cab drivers.
The apparent discrepancy between supervisor income when
compared to driver income will be explained below.
2. Discipline
Respondent’s drivers are closely supervised, to say the
least. In addition to Frias’ long hours on the road, supple-
mented by shift and road supervisors, Frias also receives re-
ports on drivers’ activities from supervisors employed by
other cab companies and from hotel security supervisors—al-
though he does not necessarily take disciplinary action
against drivers based on these reports. In addition, drivers
must contend with traffic police (Metro) and with agents of
the Nevada Taxi Cab Authority. For the most part, drivers
are cautious in their driving habits, since supervisor writeups
or police citations could well lead to suspension or termi-
nation. This close supervision is based in part on the fact that
Frias carries only liability insurance but no insurance for
property damage to his cabs. Accordingly, when his cabs are
damaged in traffic accidents, Frias must absorb the loss out
of company profits.
When a driver is hired by Respondent, he receives a copy
of Respondent’s ‘‘General Rules and Regulations’’ (R. Exh.
1), and signs a receipt attesting to the receipt. On September
23, 1987, Panaccione signed a receipt for his copy of these
Rules and Regulations (R. Exh. 4).
Respondent’s General Rules and Regulations include the
following (R. Exh. :
2Page 1
3. There will be no gambling on company time.
4. Always yield the right of way. Observe all speed
zones . . . Drive with extreme caution during heavy
traffic . . . .
Page 2
3. All trip sheets must [contain] time of pick-up,
place of pick-up, number of passengers, time of destina-
tion and destination.
6. Cabs will be called once by cab number and once
by your name and number. If no answer, dispatcher will
place you out of service . . . unless you are out of
service for lunch, charter, breakdown, disciplinary ac-
tion may be taken against you. . . .
9. We request and expect your fullest cooperation
particularly on radio procedure. Cooperation with the
dispatcher on duty is half the battle. Please cooperate.
Page 4
6. At anytime a driver is given a radio call he must
pick up the said call. You are to inform the dispatcher
when you pick up your radio call and inform him of
your destination.
7. . . . Your radios are there for a reason, and
should be operating at all times.
8. Radios are to be used to inform dispatcher of your
location . . .
Any driver that fails to use above said rules will be
subject to disciplinary action up to and including dis-
charge.
Page 6
Rules for Discipline
Any of the following acts are grounds for discipli-
nary action up to and including immediate discharge.
The acts listed below are not all inclusive—
Any violation of the company’s rules and regula-
tions.
Driving in a reckless manner.
Deliberate abuse of company property.
Failure to follow company radio procedures.
Gambling while on duty.
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is outside the scope of this decision to examine the legal, ethical, moral,
or practical ramifications of this practice. Nor must I determine when a tip
or gratuity becomes a bribe. Hereinafter, I will use the word ‘‘tip’’ to decribe
the practice in question.
Any other acts of misconduct of a similar mag-
nitude as the above.
The company shall be the sole judge of the com-
petence and of the efficiency of all employees, and may
apply in each case, at the unlimited discretion, such
standards in the measurement of competence and effi-
ciency as are reasonable.
For any given offense, except for drunk driving or theft,
Respondent’s supervisors have virtually unlimited discretion,
ranging from an oral warning to termination with a ‘‘Do Not
Rehire’’ recommendation. In many instances, employees who
have been fired are ultimately rehired sometimes several
months later. For example, both Supervisor Brooks, and
former supervisor, Wayne Wendt, a General Counsel witness,
had been terminated. Then after a change in supervisory per-
sonnel, they were rehired by Frias.
According to Wendt, Brooks had a reputation as a strict
supervisor, given to nit-picking, while Wendt was much
more lax. Thus, Brooks might fire someone that Wendt
would merely reprimand. Both Brooks and Wendt have fired
numerous employees for various violations of Respondent’s
rules. In the past year, Brooks terminated about 4–5 employ-
ees and suspended 10–15, for traffic violations and abuse of
equipment. For the most part, disciplined employees are
newer and work for a North Las Vegas Cab.
3. Driver tipping of supervisors
Entwined with the question of supervisory duties and en-
forcement of company discipline is the curious and pervasive
practice of offering tips (tokes), gratuities, or bribes3 to su-
pervisors in return for a present or future service or favor.
It is important to examine this practice because the offering
of money to a supervisor was a factor in Panaccione’s dis-
charge, which has not yet been fully described in these facts.
In his testimony, Frias appeared to recognize the existence
of tipping. To express his disapproval of it, Frias testified
that when he catches anyone involved with giving or receiv-
ing a tip, he fires both the driver and supervisor immediately.
Frias gave the names of two former supervisors he allegedly
fired for accepting tips—Kahn and Reid. No other details are
available.
In detailing this practice, I begin with the unrebutted testi-
mony of former Supervisor Wendt. During his two separate
periods of employment by Respondent, the last of which ex-
tended from September 1988 to May, Wendt served in dif-
ferent supervisory positions, including for 6 months that of
general manager. After a few months, Wendt left the position
of general manager at his own request due to job dissatisfac-
tion and returned to shift supervisor. His last separation from
Respondent was by way of resignation to accept a position
as a security supervisor at a Las Vegas hotel. I found him
to be a very credible witness.
Wendt both observed others and participated as a recipient
in the practice of tipping. The amounts tendered ranged from
$1 or $2 up to $10 or $20 for routine matters. The usual fa-
vors desired was a day off or a better cab than the one as-
signed. Sometimes extraordinary services were desired. For
example, if a driver desired a week off at Christmastime,
$100 was the going rate, as received by Wendt on one or
more occasions. The highest amount known to Wendt was
the $200 offered and accepted by General Manager Schenkel
in return for allowing an a North Las Vegas Cab driver to
jump over more senior drivers and receive a cab from one
of the three other Respondent companies.
On one occasion Wendt caught a driver gambling while on
duty. The driver offered Wendt a sum of money in return for
not being fired. In accord with his personal philosophy,
Wendt refused the money but gave the driver a verbal warn-
ing for gambling, contrary to the usual practice of other su-
pervisors who were likely to terminate drivers for the first
offense of gambling on duty. Shortly after this, Wendt
caught the same driver gambling on duty a second time.
Again the driver offered money to Wendt, but Wendt again
refused. This time Wendt fired the driver for gambling on
duty.
In his testimony, Brooks described experiences with tip-
ping very similar to Wendt’s. Brooks noted that frequently
drivers will give $1 to a supervisor for a cup of coffee even
when no specific favor was desired. Brooks also has seen
$10 or $20 payments from drivers to supervisors for the
same reasons described by Wendt.
With respect to Brooks’ personal experiences as a recipi-
ent of tips, Brooks testified that he ‘‘don’t like to take gra-
tuity. You really don’t want to take anybody’s money be-
cause I am the type of person that I don’t need money. I
don’t need money for anything . . . . Money is of no value
to me. It never has been.’’ (Tr. 169–70.) Despite Brooks’
general attitude toward tipping, from time to time, he does
accept the money from drivers. (Tr. 169.) As to what deter-
mines when he takes and when he doesn’t take, Brooks an-
swered, ‘‘Nothing in general. I mean, just the mood of the
day.’’ (Tr. 170.) When his mood is not to take money,
Brooks politely says to the offering driver, ‘‘No, I don’t want
this. Take it, you keep it.’’ (Tr. 170.)
Brooks, like former Supervisor Wendt, knows that Frias
allegedly disapproves of tipping supervisors. In fact, Brooks
was in the hearing room when Frias testified how he treats
drivers and supervisors caught giving and receiving tips.
Brooks testified he believes he would be fired on the spot
if caught by Frias accepting money from a driver (Tr. 172).
So anytime Brooks is inclined to accept a tip, he first ascer-
tains that Frias isn’t around. (Tr. 173.)
Brooks denied ever accepting a tip from a driver to over-
look a violation of company rules. On one or more occasions
Brooks has caught a driver gambling on duty and been of-
fered money by the driver to overlook the matter. Brooks de-
clined the money and took some form of disciplinary action
(Trs. 179–180.)
Panaccione also testified to his experiences with the prac-
tice of tipping. Prior to November 10, he had given money
to all company supervisors except for Brooks. In
Panaccione’s experience, $20 ‘‘is a kind of general fee that
they charge.’’ (Tr. 357.) He has paid for a day off ($20), a
week off ($60–$70), and a replacement cab ($10). Before he
was assigned a brand new cab—the one involved in a traffic
accident—Panaccione paid $10 for a replacement cab three
to four times a month at least. (Tr. 356.)
123ACE CAB
4 Wendt originally testified this conversation with Schenkel occurred after
the election, but later said he had been mistaken, and it had occurred before
the election (Tr. 419.)
Finally, Panaccione testified that he was aware of no com-
pany rule prohibiting tipping. I find that no such rule existed.
Frias’ personal philosophy while known to some supervisors
like Brooks and Wendt who ignored and evaded it, was not
generally disseminated to drivers. No supervisor ever refused
Panaccione’s tip nor warned Panaccione that offering a tip
violated company policy. On the other hand, Panaccione
knew of no prior occasions where drivers have offered super-
visors tips to overlook violations of company rules (Tr. 218.)
4. Respondent and unions
(a) Past experience
Respondent was first organized by the Teamsters in the
mid-1950s. A series of collective-bargaining agreements fol-
lowed and extended into the late 1970s, when, for unknown
reasons, the Teamsters abandoned Respondent’s drivers. The
National Maritime Union (NMU) attempted to fill the void
and won a representation election with Respondent’s drivers.
No labor agreement was ever signed, however. Subsequently,
a labor organization called the Southern Nevada Taxicab
Drivers Association won a Board-supervised election and re-
placed the NMU. Again no agreement was ever signed. Dur-
ing these campaigns, union proponents made no complaint of
unfair treatment by the Company. This was not the case
however, when the organizing campaign with Charging Party
began.
(b) Current experience (Steelworkers)
Panaccione began working for Respondent in September
1987. In January, Panaccione contacted representatives of the
Union who were participating in a Las Vegas convention.
After discussions, Panaccione began distributing union rep-
resentation cards and soliciting drivers’ signatures. Ultimately
Panaccione obtained 70 to 100 signed cards which he re-
turned to a union representative.
Later in 1989, the Board conducted a hearing regarding
the corporate relationship of the four cab companies com-
prising Respondent. Panaccione testified in that hearing as a
union witness; as a result of his testimony and other evi-
dence, Respondent was found to be a single employer.
Between the hearing and the election date on May 18,
Panaccione continued to engage in prounion activities. On
May 18, Panaccione and one other employee named Bob
Breidenbach, who did not testify, acted as election observers
on behalf of the Union.
After the Union won the election, Panaccione,
Breidenbach, and two other drivers, Al Bernardino and Pat
Miller, neither of whom testified here, were elected to the
union negotiating committee. In his role as a union nego-
tiator, Panaccione attended all negotiating sessions held prior
to his discharge. No contract has, as yet, been agreed to.
As a result of Panaccione’s high profile union activities,
certain supervisors expressed their view of the union orga-
nizing activity in general and Panaccione in particular. One
of these was Ed Schenkel who, prior to the election, told
Wendt that other unions had tried to organize Respondent’s
drivers, but that Frias had told Schenkel that no contract
would ever be signed. Schenkel went on to say that Frias
planned to use his attorneys to tie up the negotiating process
until the union effort fizzled out.
Prior to election day, Wendt had promised Breidenbach a
night off from his usual shift because Breidenbach and
Panaccione planned to spend a long day as union observers.
When Schenkel learned why Breidenbach had been promised
the evening off, he told Wendt, ‘‘Screw him. Make him
work. If he can stay here all day to observe an election, he
can work.’’ (Tr. p. 393.) Wendt held firm telling Schenkel
that he had promised Breidenbach the evening off, and he
felt he could not go back on his word. Breidenbach got the
evening off, as promised.
Before continuing with additional statements made by
Schenkel, I turn to another supervisor, Jack Gambill, who
like Schenkel, did not testify. Prior to the election, Gambill
told Panaccione that Frias would never sign a contract with
the Union. Eventually, the union effort would just fade away
like the others. After the election, Gambill continued to make
similar comments to Pannaccione regarding Frias’ intentions.
5. Panaccione’s termination
Before reciting the events of November 10, I return first
to Schenkel, then to Frias and relate certain surrounding facts
and circumstances.
About 1 or 2 months before the election, Schenkel told
Wendt per orders of Frias, that Panaccione, Breidenbach, and
Miller had become highly visible in support of the Union and
that they had better watch out. Schenkel continued that su-
pervisors could get them for anything, but were instructed to
make sure and document all discipline, a record of which
might be needed later on. In sum, Wendt was told to keep
a special watch on the three, because if he follows a cab
driver long enough, Wendt and any other supervisor will find
the driver doing something for which he can be fired. When
any of the three targeted for a special watch, were caught
doing anything wrong, they were to be fired, if possible. On
one or more other occasions, Schenkel told Wendt how stu-
pid he thought Panaccione and the other two were because
they were so openly prounion while working for Frias4 (Tr.
394, 420–421.)
Panaccione testified to certain conversations with Frias
himself, about 9:30 p.m. on September 16, after Panaccione
had returned to the yard from the hospital, where his injuries
from the traffic accident had been treated. Panaccione ap-
proached Frias in the yard and attempted to apologize to
Frias for the damage to the new cab, even though the acci-
dent had not been Panaccione’s fault. Frias responded, ‘‘I
can not get you for this, but I will get you and all of your
buddies. This accident would not have occurred if it was not
because of the Union. I will park the cabs in the yard, all
of them, before I even think about signing a contract with
you folks.’’ Panaccione remained undaunted by these re-
marks and attempted to explain how in his opinion, a union
contract would help to improve the quality of Frias’ drivers
which in turn would lead to increased profits. To this Frias
responded that if Panaccione had a problem with the way
things are going around here, Panaccione could always come
to Frias’ office to discuss the matters. Frias then repeated
that he would not come to terms with the Union during con-
tract negotiations (Tr. 192–194.)
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 A current employee who testifies against his employer’s interest is said to
be testifying against his own self-interest and therefore is more credible. Tran-
sit Management Services, 298 NLRB 721 (1990).
6 In light of Panaccione’s male roommate in Las Vegas, it is unknown
whether the statement made to Brooks was true.
Frias was called as Respondent’s witness and admitted to
having had a conversation with Panaccione in the yard on the
night in question. He denied threatening to get Panaccione,
although he admitted knowing Panaccione was active on be-
half of the Union. Frias went on to testify that Panaccione
talked about negotiations but Frias wasn’t really listening,
because his attorney had been doing the negotiating. Frias
added that he’d sit down with the Union when matters got
down to the ‘‘nitty-gritty.’’ He added, ‘‘I know that if I’m
going to sign a contract, it’s a liveable contract, I’ll sign it.
But I’m not just going to give the company away.’’ (Tr.
452.)
In rebuttal, General Counsel called current Respondent
employee Lawrence Stadterman, Panaccione’s roommate. On
September 16, he was notified of Panaccione’s traffic acci-
dent and went to pick up Panaccione at the hospital.
Stadterman then transported Panaccione to the yard so the
latter could retrieve his personal belongings from the dam-
aged cab. Although he could not hear the conversation be-
tween Frias and Panaccione, he observed Frias talking loudly
and pointing his finger at Panaccione as though Frias were
very upset.
I credit Panaccione’s account of the conversation with
Frias. Frias’ remarks are consistent with the unrebutted testi-
mony of Wendt with respect to Schenkel’s remarks. This evi-
dence together with the slight corroboration provided by
Stadterman, a witness entitled to heightened credibility5 and
the testimony provided by Panaccione himself whom I found
to be generally credible, convinces me that Frias made the
remarks attributed to him.
With the above events in mind, I turn to relate the events
of Friday, November 10. As already noted, this weekend
marked the beginning of Comdex, the busiest week of the
year for the city of Las Vegas. Both Panaccione and Brooks
were working that night. In order to monitor Respondent’s
cabs, Brooks parked in a parking lot of a convenience food
store facing a street containing traffic exiting from the air-
port. After 15 to 20 minutes there, he observed a cab driven
by Panaccione allegedly being driven at an excessive rate of
speed. In the cab was a single passenger, a woman who was
on a layover of several hours between planes. She told
Panaccione that she desired to go to a casino, but she didn’t
know which one.
In any event, Brooks pulled out into traffic and followed
Panaccione’s cab for several minutes before losing
Panaccione in traffic. During that time, according to Brooks’
testimony, he observed Panaccione change lanes in an unsafe
manner, exceed the speed limit, and hit a dip in the road at
a fast rate of speed, causing the bottom of the cab to scrape
the street as it bounced. In addition, Panaccione allegedly
went through a red light at a pedestrian crosswalk, and made
a right-hand turn from a middle lane of traffic when traffic
in the right-hand lane had stalled for unknown reasons.
During Brooks’ pursuit of Panaccione, Brooks was watch-
ing his rearview mirror, making sure Metro was not going
to catch him ‘‘for speeding, because I am trying to keep up
with him.’’ (Tr. 112.) Brooks also made repeated attempts to
contact Panaccione by instructing the dispatcher to find out
Panaccione’s location. However, Panaccione did not respond
to these inquiries. Finally, Brooks returned to the conven-
ience store parking lot where he had started from.
Meanwhile, Panaccione dropped his fare off at a casino-
hotel. After pickup and delivery of other fares, Panaccione
returned to the airport and again exited on the same road ob-
served by Brooks earlier that night.
When Brooks saw Panaccione, Brooks again pulled out of
the parking lot and this time caught up with Pannaccione in
the parking lot of Bally’s Casino where a conversation en-
sued. Brooks told Panaccione he had been driving recklessly
and too fast for conditions. Panaccione denied the charges.
Up to this moment, according to Brooks, he ‘‘hadn’t made
up [his] mind any way, because it is my own discretion out
there when I am working’’ (Tr. 122). Among the options
which Brooks testified he was considering as he spoke to
Panaccione was, ‘‘maybe a couple days off, maybe a week,
maybe I ought to just let him sit out this convention, or
maybe he ought to be fired. . . . I hadn’t drawn any conclu-
sions.’’ (Tr. 122.)
According to Panaccione’s testimony, he had been driving
a ‘‘little bit aggressive, but still defensively.’’ (Tr. 203).
Later Panaccione expanded on his characterization: [By]
driving aggressive is, . . . we don’t drive like going to
church on Sunday. And what I mean aggressive is defen-
sively, but on top of what you’re doing’’ (Tr. 353).
More specifically, Panaccione denied hitting the dip at a
fast rate of speed as he was familiar with the road at that
point; he denied speeding as the traffic was heavy and he
knew that Metro was out in full force; he couldn’t recall
weaving in and out of traffic; he admitted turning right from
a middle lane, only because traffic on the right-hand lane had
been stalled. He also denied going through any red lights. As
to Panaccione’s failure to respond to the radio calls, he de-
nied that he had been aware of any calls, but admitted that
he frequently converses with his passengers, as a method of
enhancing his tips, and that this may have distracted him.
In any event, after a brief discussion at Bally’s, where
Panaccione had denied committing any serious traffic or
abuse of equipment violations, Brooks finally told
Panaccione to drive his cab back to the yard. This usually
meant suspension or discharge for a driver. Panaccione’s fur-
ther argument and protests were unavailing and Brooks drove
away. A few minutes later, Brooks noticed Panaccione had
maneuvered behind him and was flashing his headlights.
Brooks pulled over into the parking lot of a different hotel
casino, where a second conversation occurred.
This time Panaccione pleaded with Brooks that he had a
wife and family to support,6 and asked why it wasn’t pos-
sible to discuss the matter right there without having to re-
turn to the yard on this busy night. Brooks told Panaccione
that he had not made any decision regarding discipline up to
that minute, but again he directed Panaccione to reenter the
cab and drive to the yard. At this point, Panaccione asked
Brooks what it would take to forget about the matter.
Panaccione then reached into his pocket and withdrew a sum
of between $300 to $400, and again asked Brooks what it
was going to take. Panaccione actually tendered $50 or more
to Brooks. Brooks described his reaction:
125ACE CAB
I came unglued. I absolutely lost my temper. I
shoved it back in his hand. I said, ‘‘Get in that cab and
get to the yard now. I am not a bum. I don’t need your
money. I don’t want your money! I said I want you to
get in that cab and get to the yard know. Mister, I have
no use for you now. Just get into the yard.’’ (Tr. 131.)
Both men then drove their cabs to the yard.
Back at the yard, Brooks completed an employee action
notice which he had begun when he first pursued
Panaccione. The final decision to fire Panaccione, according
to Brooks, had not been made, until Panaccione had offered
the money. The employee action notice reads as follows (R.
Exh. 3):
Time: 9:52
V-39 Pannaccione
1083
Attended [sic] bribe w/ supervisor
x Termination NO REHIRE
(1) Endanger lives of customers with;
(2) Excessive speed;
(3) Ran Ped. red light at Flamingo crosswalk;
(4) Right turn from ctr lane at Las Vegas Blvd.
South off of Flamingo;
(5) Company abuse of equipment;
(6) Improper radio procedure when called on radio.
No Answer.
/s/ R.A. Brooks
Back at the yard, Brooks gave Panaccione a copy of the
form and told him never to return except to pick up his pay-
check.
B. Analysis and Conclusions
1. Frias’ statements of September 16
In the facts portion of this decision, I have found that
Frias made certain statements to Panaccione on the evening
of September 16. General Counsel has alleged that these
statements violate Section 8(a)(1) of the Act. I agree.
Section 8(a)(1) of the Act provides that it is an unfair
labor practice for an employer to ‘‘interfere with, restrain, or
coerce employees in the exercise of rights guaranteed by
Section 7 of the Act.’’ Section 7 provides that employees
have the right to ‘‘form, join, or assist labor organizations
. . . and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid and protec-
tion . . . .’’
Frias’ threat to get Pannaccione and all of his buddies vio-
lates Section 8(a)(1) of the Act as it suggests unspecified re-
prisals for Pannaccione’s union activities. Peavey Co., 249
NLRB 853 (1980), enfd. as modified 648 F.2d 460 (7th Cir.
1981).
Frias also threatened to cease operations by parking his
cabs in the yard before signing a contract with the Union.
This statement also violated Section 8(a)(1) of the Act. Times
Wire & Cable Co., 280 NLRB 19 (1986); Teamsters Local
171 v. NLRB, 863 F.2d (D.C. Cir. 1988).
Finally Frias stated that he would not come to terms with
or sign a contract with the Union. Because this statement
conveyed to Panaccione the futility of further collective bar-
gaining, I find that it violated Section 8(a)(1) of the Act.
American Furniture Co., 293 NLRB 408 fn. 2 (1989).
2. Panaccione’s termination
General Counsel has the initial burden of establishing a
prima facie case sufficient to support an inference that union
or other activity which is protected by the Act was a moti-
vating factor in Respondent’s action alleged to constitute dis-
crimination in violation of Section 8(a)(3). Once this is es-
tablished, the burden shifts to Respondent to demonstrate that
the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. If Respondent
goes forward with such evidence, General Counsel ‘‘is fur-
ther required to rebut the employer’s asserted defense by
demonstrating that the [alleged discrimination] would not
have taken place in the absence of the employee[’s] protected
activities.’’ Wright Line, 251 NLRB 1983 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The test applies regardless of whether the
case involves pretextual reasons or dual motivation. Frank
Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
‘‘[A] finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not
in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.’’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982).
I begin by finding that General Counsel has established a
prima facie case that Panaccione’s protected activities was a
motivating factor in his discharge. As support for this con-
clusion, one need look no further than the 8(a)(1) violations
found above. I have also credited Wendt’s testimony regard-
ing statements made by Schenkel and Gambill. Motive is a
question of fact and the Board may infer discriminatory mo-
tivation from either direct or circumstantial evidence. NLRB
v. Nueva Engineering, 761 F.2d 961, 967 (4th Cir. 1984).
The instant case contains abundant circumstantial evidence of
discriminatory motivation.
The real question in this case is whether Respondent has
met its burden to show that Panaccione would have been ter-
minated absent his protected activities. To answer this ques-
tion, I first note the evidence establishing Panaccione’s union
activities, the knowledge of these activities by Frias and the
animus toward the Union and toward Panaccione because of
his union activities. In light of this background, it is difficult
to believe that Brooks just happened to see Panaccione on
November 10, a night when hundreds, if not thousands of
cabs were on the street. Instead, it is more probable that
Schenkel gave Brooks the same marching orders given to
Wendt; to keep a close eye on Panaccione until an offense
was discovered sufficiently serious to warrant discharge. This
singling out of a high profile union proponent is a factor
which strongly supports General Counsel’s case. McLane
Western, 251 NLRB 1396, 1402 (1980). A supervisor who
receives instructions like this, in an attempt to curry favor
with his boss, may overreach in evaluating any given dis-
ciplinary case.
Notwithstanding the above caveat, I find that on Novem-
ber 10, Panaccione committed one or more traffic offenses,
and failed to keep in radio contact with the dispatcher as re-
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 An important issue raised by this case must be left for another day, and
resolved, if at all, in a different forum: whether public policy permits or con-
dones a cab company supervisor possessing no police powers and acting solely
on behalf of a private employer, to violate traffic laws and safety codes, in
the course of policing cab drivers’ driving practices.
8 In Klate Holt Co., 161 NLRB 1606, 1612 (1966), the Board stated,
If an employee provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would have been termi-
nated in any event, and the employer discharges him for that reason, the
circumstance that the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful.
quired by Respondent’s rules.7 That none of this would have
warranted discharge, or even necessarily suspension, is prov-
en by Brooks’ own testimony that when he first told
Panaccione to return to the yard, he had made no final deci-
sion regarding punishment. But even assuming without find-
ing that Panaccione did all or most of what Brooks said he
did, it is difficult to understand how Brooks could justify re-
moving the cab from the street on one of the busiest nights
of the year. Respondent’s loss of revenue was 55 percent of
whatever Panaccione would have continued to earn, had he
been given an oral reprimand only, or had he been dis-
ciplined later after his shift had ended.
According to Brooks, it was only after Panaccione offered
him a sum of money to resolve the issue of his traffic and
radio violations, that Brooks made the decision to fire
Panaccione. Because there is no dispute that Panaccione did
offer the money to Brooks, I must determine whether Re-
spondent has now shown that when the totality of
Panaccione’s conduct is considered, he would have been ter-
minated, even absent his protected activities on behalf of the
Union.8
To answer the question presented, I look first to Brooks’
testimony. His description of his reaction to Panaccione’s
offer of money appears disingenuous, given his prior accept-
ance of tips under other circumstances, when the mood
struck him. It may be altogether true, that while Brooks ac-
cepted some of the tips offered to him, he harbored a mental
reservation about accepting money to overlook discipline.
Yet there is no evidence that this qualification was ever dis-
closed to drivers. In fact, when Brooks declined to accept
tips from drivers, there is no evidence that the offer of
money admittedly under different circumstances from those
present here, caused Brooks to come ‘‘unglued.’’ In fact,
Brooks testified as Respondent’s witness that when he caught
certain drivers gambling on company time, he gave them a
second chance (cut them some slack) because they had done
favors for Brooks in the past.
The above discussion is purely academic since the offering
of tips to drivers under any circumstances is not prohibited
by Respondent’s written rules and regulations (R. Exh. 1). It
may have violated Frias’ personal principles, but the exist-
ence of this practice involving Schenkel, Brooks and appar-
ently all other supervisors undermines Frias’ purported re-
solve to fire the giver and receiver of tips whenever they
were caught. Moreover, the existence of Respondent’s com-
pensation system by which drivers earn more than super-
visors surely indicates to Frias that a tip practice thrives at
Respondent. When all is considered, I find that Frias toler-
ated and condoned the tipping system in his business.
Under the common practice of offering and accepting tips
prevailing at Respondent, I find that Panaccione could have
reasonably believed not only that he would not be worse off
with Brooks for having offered the money, but that Brooks
may even have been soliciting Panaccione in a subtle man-
ner, to offer him money. On the other hand, Brooks may
have been setting up Panaccione to offer the money, thereby
committing in Brooks’ eyes, a terminable offense. In any
event, there is no evidence, that any driver was ever termi-
nated for offering money to a supervisor to overlook dis-
cipline or for offering money for any other reason. In at least
one incident involving Wendt, a driver offered money to him
to overlook a gambling violation. Although Wendt declined
the money, the driver was not disciplined for offering the
money and he was not fired for the offense of gambling on
duty. Because Frias tolerated all of this, notwithstanding his
testimony at hearing, an ambiguity exists in Respondent’s
disciplinary policy for which Respondent must be held ac-
countable. La Quinta Motor Inns, 293 NLRB 57 (1989); 299
Lincoln Street, 292 NLRB 172 (1988).
In sum, Panaccione was terminated pursuant to a no-tip-
ping policy that was unknown to Panaccione and had not
been consistent. Indeed, the reverse was true. Even where
tips had not been accepted, no one had been fired for offer-
ing them. Both Frias and Schenkel had made statements with
unmistakable overtones of a purpose to discriminate and re-
taliate against Panaccione because of his union activities.
Note the similarity between the instant case and Herman
Bros. v. NLRB, 658 F.2d 201, 208–210 (3d Cir. 1981). Ac-
cordingly, Respondent has not met its burden to show that
Panaccione would have been fired absent his protected ac-
tivities.
For the above reasons, I find that Respondent violated
Section 8(a)(3) and (1) of the Act when it terminated
Panaccione.
CONCLUSIONS OF LAW
1. Respondent Ace Cab, Inc., ABC Union Cab Company,
Inc., Vegas Western Cab, Inc., a North Las Vegas Cab Com-
pany, is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union, United Steelworkers of America, AFL–
CIO–CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent through its Supervisor and Agent Richard
Brooks violated Section 8(a)(3) and (1) of the Act by dis-
charging its employee Pat Panaccione, because of
Panaccione’s support for the Union or for other protected
concerted activity.
4. Respondent through its President Charles Frias violated
Section 8(a)(1) of the Act by committing the following acts,
which interfered with, restrained, or coerced employees in
the exercise of rights guaranteed by Section 7 of the Act:
(a) By threatening to get Panaccione and all of his buddies
because they supported the Union.
(b) By threatening to cease operations before signing a
contract with the Union.
(c) By stating he would not come to terms with or sign
a contract with the Union, thereby conveying to supporters
of the Union the futility of further collective bargaining.
5. The unfair labor practices found to have been com-
mitted above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
127ACE CAB
9 If no exceptions are filed as provided by Section 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Section 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
10 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that on November 10, Respondent termi-
nated Pat Panaccione, because he engaged in union activities,
or other protected concerted activities, I shall recommend
that Respondent be ordered to reinstate Pat Panaccione to his
former position and, if his former position no longer exists,
to a substantially equivalent position, without prejudice to his
seniority and other rights and privileges and to make
Panaccione whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him by pay-
ment to him of a sum equal to that which he would have
earned absent the discrimination, with the backpay computed
on a quarterly basis, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173
(1987), and as reduced by any net interim earnings.
On these findings of fact and conclusions of law and the
entire record, I issue the following recommended9
ORDER
The Respondent Ace Cab, Inc., ABC Union Cab Com-
pany, Inc., Vegas Western Cab, Inc., a North Las Vegas Cab
Company, Las Vegas, Nevada, by its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Terminating employees because they engaged in union
or other protected concerted activities;
(b) Threatening employees with unspecified reprisals be-
cause of their union activities.
(c) Threatening employees with the cessation of operations
before signing a contract with the Union.
(d) Telling employees it would not come to terms with and
sign a contract with the Union.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the polices of the Act.
(a) Reinstate Pat Panaccione to his former position and, if
his former position no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority and other
rights and privileges and make Panaccione whole for any
loss of earning suffered by reason of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(b) Expunge from its files any references to the discharge
of Pat Panaccione and notify him in writing that this has
been done and that evidence of this unlawful termination will
not be used as a basis for future personnel action against
him. Sterling Sugar, 261 NLRB 472 (1982).
(c) Preserve and, on request, make available to the Na-
tional Labor Relations Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to effectuate the backpay provisions
of this Order.
(d) Post at its facility in Las Vegas, Nevada, copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice
on forms provided by the Regional Director for Region 28,
after being signed by Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.