Airports Service Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1160 (N.L.R.B. 1975)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Airports Service Lines, Inc. and R. Paul Pfeiffer -and
Solomon Chatman.Cases 7-CA=11110 and 7-CA-
111'63
June 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 11, 1974, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.l
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge to the
extent consistent herewith and adopt his recom-
mended Order as modified herein.
1. We agree with the Administrative Law Judge
that Respondent discriminatorily discharged R. Paul
Pfeiffer and Lynn Sawyer. However, we disagree
with his conclusion that Respondent discriminatorily
discharged Proteep Thatsamalai.
These are the facts, as found by the Administrative
Law Judge. Thatsamalai was in Respondent's em-
ploy from January to April 18, 1974. On April 12,
1974, he had an accident while driving Respondent's
van on a personal errand without permission from
any company official. On April 16 and 17 Respon-
dent's chairman of the board, Linteau, discussed the
accident with Thatsamalai. He asked the employee
how many times ,he had driven Respondent's motor
vehicles without permission and whether there had
been other accidents. Thatsamalai admitted to
Linteau that he had driven Respondent's vehicles
without permission on four other occasions but said
that he-could not recall other accidents. On April 16
Linteau explained the, seriousness of using company
vehicles without permission and being involved in
accidents. He told Thatsamalai that he wanted to
give him a chance to continue on the job, to think
about it overnight, and let him know the next day if
there had been any more. On the next day,
Thatsamalai testified, Linteau asked if Thatsamalai
I Respondent also filed a request for oral argument . As the record,
exceptions , and beef adequately present the positions of the parties, we
deny the request.
2 The Adnumstrative Law Judge 's Decision at sec. III,F,1, first line,
inadvertently refers to August 17-as the , date Respondent's supervisor,
Amercello, unlawfully interrogated employee Chatman. The date is
corrected to read April 17.
218 NLRB No. 176
had anything more to tell him, but the employee said
he could not recall anything. Once again Linteau-told
him to take another day, to think about it and call
back the next day. As found by the Administrative
Law Judge, Linteau also remarked to Thatsamalai on
April 17 that he had heard that employee Pfeiffer was
trying to organize a union.3 Thatsamalai said that he
did not know.
Thatsamalai attempted to telephone Linteau on
April 18, but could not reach him.4 He did "not try
again to get in touch with Respondent. Thereafter
Thatsamalai applied for unemployment compensa-
tion.
Thatsamalai had signed a union authorization card
the evening of April 17. It had been given to him by
Pfeiffer. Pfeiffer had obtained authorization cards on
April 16 and had begun to solicit signatures on April
17.
. On these facts the Administrative Law Judge found
that Respondent unlawfully discharged Thatsamalai.
He reasoned that Linteau's telling Thatsamalai on
April 17 to call him back, when viewed in the light of
Linteau's remark about Pfeiffer' s organizing, meant
that Thatsamalai was to call Linteau to give him
information about union activities and constituted
ari unlawful discharge. Respondent contends that
Thatsamalai voluntarily quit. We find merit in this
contention.
It is clear - that Chairman Linteau did not tell
Thatsamalai that he was discharging him. He
expressly told him to call. By not calling, Thatsama-
lai quit. The issue is whether the quit was voluntary
or forced. Recounting the facts as found by the
Administrative Law Judge demonstrates that - Lin-
teau's telling Thatsamalai to call him back was in a
context of discussion about any accident that might
have occurred. To surmise that Linteau meant
Thatsamalai was to call him to report on Pfeiffer's
union activities, and then to infer that' Thatsamalai
did not call back because he did not wish to make
this report and that Thatsamalai felt that Respondent
was forcing him to quit, is wholly conjecture. It is no
substitute for proof. We conclude that the General
Counsel has failed to establish by a preponderance of
the evidence that Respondent discharged employee
Thatsamalai. Therefore we shall dismiss this allega-
tion of the complaint.
2. The Administrative Law Judge found that
Respondent had not made a valid offer of reinstate-
ment to discrimiriatee Sawyer in a letter which it
3 The Administrative Law Judge found that Lmteau 's remark about
Pfeiffer's organizing , which , Linteau denied, occurred in his conversation
with Thatsamalai on April 17. Thatsamalai testified that Lmteau made it on
April 16, which would be before Pfeiffer began to solicit union authorization
cards.
4 There is no evidence that Thatsamalai left a message , nor that Linteau
was ever informed of Thatsamalai's call
AIRPORTS SERVICE LINES, INC. 1161
addressed to her, dated July 9, 1974. The letter gave
the employee 48 hours from receipt of the letter to
report for work or be held as having voluntarily quit.
The Administrative Law Judge found that the letter
gave the employee an unreasonably short period in
which to report to work and, in any event, the letter
was returned to Respondent unclaimed.5 Respon-
dent contends that its offer was valid but if the Board
believes that there is insufficient evidence on the
issue, it should remand the case for further hearing.
It argues in its brief that its letter offering reinstate-
ment to Sawyer contained a reasonable reporting
period, considering the nature of its business. We
note that there is no satisfactory record explanation
why the letter could not be delivered.6
There is insufficient evidence upon which to base a
conclusion as to the validity of Respondent's offer.
There is no per se rule that the validity of an
employer's offer of reinstatement to an employee
depends on the employee personally receiving a letter
offer. Adams Book Company, Inc., 203 NLRB 761,
769, footnote 39 (1973); Rental Uniform Service, 167
NLRB 190 (employee Bridges) (1967). Nor is there
an absolute rule as to the period of time that will
constitute a reasonable notice period. Fredeman's
Calcasieu Locks Shipyard. Inc., 208 NLRB 839
(1974). The result in each case depends on the factual
circumstances of the particular case. Because the
circumstances surrounding Respondent's offer of
reemployment to Sawyer have not been fully litigat-
ed„ we cannot decide whether Respondent's offer
tolled its backpay liability and satisfied its reinstate-
ment obligation. We, therefore, follow our usual
practice of leaving the resolution of the issue to the
compliance stage of the proceeding.
with the formula set forth in the section of the
Administrative Law Judge's Decision entitled `The
Remedy.' "
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
that Respondent discharged and refused to reinstate
Proteep Thatsamalai in violation of Section 8(a)(3) of
the Act.
MEMBER JENKINS , dissenting in part:
Regarding the alleged offer of reinstatement to
Sawyer, I would affirm the Administrative Law
Judge and not leave the adequacy or the effective
date of the offer to the compliance stage here: The
letter containing the offer of reinstatement was never
received by Sawyer, as the Respondent admits. The
proponent of the offer has offered no evidence to
indicate that the failure of Sawyer to receive the
letter should be disregarded. To the contrary, the
Respondent, in its exceptions, recognizes that the
"back pay award should be tolled as of receipt of the
offer of reinstatement." Thus, in my view, our
inquiry into the validity of the Respondent's offer is
at an end because the unalterable fact here is that
there was no "receipt" of this offer, and any probing
of the "reasonableness" of the terms of this uncom-
municated offer would be meaningless under these
circumstances.
Accordingly, I would order, as did the Administra-
tive Law Judge, Respondent to reimburse Sawyer for
her lost pay from the time of her discharge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Airports Service Lines, Inc., Pontiac, Michigan, its
officers , agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified herein.
11. Delete paragraph 2(a) and substitute the
following:
"(a) Offer Paul Pfeiffer and Lynn Sawyer, if it has
not made a valid offer to her, immediate and full
reinstatement to their former positions or, if their
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay they may have suffered in accordance
5 The Administrative Law Judge also found that employees Chatman
and Thatsamalai did not receive a valid offer of reinstatement. As the
Administrative Law Judge found that Respondent did not discriminatorily
discharge Chatman (and no exception was taken to that finding), and as we
have found that Respondent did not discriminatorily discharge Thatsama-
lai, there is no issue respecting Respondent 's reinstatement offer to these
two employees.
There is also no question that Respondent did not offer reinstatement to
Pfeiffer, who we find was discriminatonly discharged . At the hearing
Respondent's attorney stipulated that Respondent had revoked its offer of
reinstatement to Pfeiffer . He stated that the effect of the revocation was that
no reinstatement offer had been made to Pfeiffer.
6 At the hearing Sawyer gave as her address one different from that to
which Respondent addressed its letter . However, the record does not
indicate whether Sawyer had moved in the interim, or whether the address
used by Respondent was the last one known to Respondent Neither
counsel for the General Counsel nor counsel for Respondent questioned
Sawyer or Linteau on the issue . Indeed, counsel for the General Counsel
objected to Respondent 's amendment of its answer to assert that it had
offered reinstatement to-Sawyer on July 11, 1974, a date subsequent to the
filing of the answer. The General Counsel argued that whether Respondent
had made a bona fide offer of reinstatement should await the compliance
stage of the proceeding.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate our
employees regarding their union membership,
activities, or sympathies.
WE WILL NOT threaten our employees with
discharge or other reprisals for engaging in union
activities.
WE WILL NOT discharge employees or otherwise
discriminate . against them because of their mem-
bership in, or activities on behalf of, Local 614,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Ind., or any-other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist the above-
named Union or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL offer Paul Pfeiffer and Lynn Sawyer,
if we have not made a valid offer to her,
immediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of
earnings they may have suffered as a result of
their discriminatory discharges with interest at 6
percent per annum.
AIRPORTS SERVICE LINES,
INC.
DECISION
STATEMENT OF THE CASE
herein called the Act. Respondent filed, an answer, and a
hearing was held before me at Detroit, Michigan, on
August 13-15, 1974.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed by
the Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Based upon the pleadings, I find that the Respondent, a
Michigan corporation, with its office and place of business
in Pontiac, Michigan, is engaged in the business of
providing transportation to and from airports in the
metropolitan Detroit area to and from offices, hotels, and
other locations. The airlines which utilize the airports and
whose passengers and personnel make use of Respondent's
services offer either interstate and/or international flight
services from these airports. During the past calendar year,
Respondent derived in excess of $500,000 in gross revenues
from its transportation services to and from the airports.
During the past calendar year, Respondent purchased
gasoline in excess of $20,000 for use in Respondent's
transportation vehicles to transport employees and passen-
gers of the airlines . The gasoline is refined at locations
outside the State of Michigan and shipped to depots and
terminals in the State of Michigan directly from outside the
State of Michigan. Based on the foregoing, and as admitted
in Respondent's answer, I find that the Respondent is
engaged in commerce and in operations affecting com-
merce within the meaning of, Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd that
Local 614, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Ind., herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Louis Linteau is Respondent's chairman of the Board
and the chief operating official. Cynthia Green is its
president and actively participates in the management of
the Respondent. Mickey Amercello is the admitted
supervisor over the drivers. The Respondent employs
approximately 75 employees as drivers, dispatchers, and
mechanics. It operates 7 days a week, round the clock.
The General Counsel, in his complaint, alleges that the
Respondent unlawfully discharged Paul Pfeiffer, Lynn
Sawyer,-and Proteep Thatsamalai on April 10, 1974,2 and
Solomon Chatman, on May 10 in violation of Section
8(a)(l) and (3) of the Act., The complaint also alleges
independent acts of unlawful interrogation and threats in
April. At the hearing, the General Counsel was permitted
BERNARD NESS, Administrative Law Judge: Upon
individual unfair labor practice charges filed by R. Paul
Pfeiffer and Solomon Chatman on April 30 and May 23,
1974, respectively, in Cases 7-CA-11110 and 7-CA-11163
against Airports Service Lines, Inc.,' herein called the
Respondent, the General Counsel, by the Regional
Director for Region 7, issued a consolidated complaint on
June 26, 1974, alleging that Respondent had engaged in
unfair labor practices within the meaning of Section 8(axl)
and (3) of the National Labor Relations Act, as amended,
1 The name of the Respondent was corrected at the hearing. 2 Unless .otherwise indicated all dates hereinafter refer to 1974.
AIRPORTS SERVICE LINES, INC. 1163
to orally amend the complaint to include two additional
allegations of unlawful 8(a)(1) conduct .3 In its answer, the
Respondent has denied the commission of any unfair labor
practices. At the hearing the Respondent initially amended
its answer to allege it had offered reinstatement to the four
alleged discriminatees. Introduced in evidence early in the
first day of the hearing were letters sent certified mail by
the Respondent to the four alleged discriminatees offering
them reinstatement. The letters to Pfeiffer and Chatman
were dated July 9 and were received respectively on July 11
and July 19. The letter to Sawyer, also dated July 9, was
returned to the Respondent unclaimed.4 The letter to
Thatsamalai, dated June 12,5 was received on July 18. On
the second day of the hearing, the parties stipulated the
offer of reinstatement to Pfeiffer had been revoked and the
answer was further amended accordingly. No further
testimony was adduced in connection with the offers of
reinstatement . The offers of reinstatement sent to Sawyer,
Thatsamalai, and Chatman provided that if the recipient
did not report for work within 48 hours of receipt of the
letter, he/she would be considered a voluntary quit. Giving
employees only 2 days from receipt of the offer to
physically report for work is unreasonably short notice
and, in my opinion, not a bona fide or valid offer. Nor do I
believe it was incumbent upon Thatsamalai or Chatman to
respond with a counterproposal for a reporting date.
Moreover, in Sawyer's case, on the state of the record I
cannot find Respondent took all reasonable steps to see
that the offer of reinstatement was communicated to her.
The Respondent's employees have not been represented
by any labor organization. The Union filed a petition on
April 26, a Decision and Direction of Election issued on
July 2, and an election was held on July 30. Because of the
challenges, the results of the election were not determined
as of the time of the hearing herein.
B. The Discharge of Pfeffer
Paul Pfeiffer had previously worked for the Respondent
while still in high school. He left the Respondent in 1969
and entered the Navy. In December 1973, while still in
service , Linteau loaned him $1,0001, 0 In January 1974, after
his release from the service, he again began working for the
Respondent as a driver. The last day he worked was April
17. On or about April 7, Pfeiffer gave Linteau a letter he
prepared in which Pfeiffer complained about the working
conditions and the long hours worked by the drivers, and
3 Par. 12(c) reads as follows: "That on or about June 12th, 1974,
Respondent raised the hourly rate of employees and thus interfered with,
restrained and coerced employees in the exercise of their rights guaranteed
by Section 7 of the National Labor Relations Act."
Par. 12(d) reads as ' follows: "That on or about July 15, 1974,
Respondent promised employees benefits for the purpose of discouraging
activities on behalf of Local 614 of the International Brotherhood of
Teamsters and for the further purpose of interfering with, restraining and
coercing its employees of their rights under Section 7 of the Act."
4 At the hearing she gave her address as one different from the one
shown on the Respondent's letter, sent only about I month prior to the
hearing. No testimony was offered at the hearing that the address to which
the letter was,directed was the one last known by the Respondent.
5 I presume this was a typographical error and was intended to be July.
6 Prior to entering the military service, Pfeiffer had been dating Lmteau's
da ughter . At the time of the loan, Pfeiffer and Linteau were on good terms.
The loan was repaid on March 26.
7 Linteau was not asked whether he used the expression "Down the
requested overtime pay for the drivers. On April 10,
Pfeiffer and Linteau discussed the contents of the letter.
Pfeiffer credibly testified that during the course of the
discussion, he said "that I heard someone was talking
about a union. I didn't say it was myself just to see what his
reaction was." Linteau replied, "that if someone is -
Down the road. That is his exact terminology." 7
Pfeiffer visited the Union's office on April 16, his day off,
and signed a union authorization card. He obtained a
number of cards for the purposes of soliciting other
employees. On April 17, he reported for work about 6:30
a.m. and on his trips to the airport that day he obtained
signed cards from a number of the employees.8 His first
run to the airport was about 8 a.m. In the early afternoon,
Reeves, the chief dispatcher, called him back to the office
and, when he arrived, Reeves told him to punch out. No
reason was given and he punched out .9 He then returned to
the airport and solicited more employees to sign union
authorization cards. That evening he returned to the office
and asked Linteau what time to report the next morning.
Linteau told him to come in at 9 a.m. The next day he
reported shortly before noon.10 When he appeared Linteau
called him into the office. Pfeiffer testified Linteau first
referred to his hair and beard as shaggy and unkempt.11
While testifying, Pfeiffer appeared uncertain and hazy as to
his recollection of the sequence in which certain remarks
were made and didn't recall everything that was said.
Linteau accused Pfeiffer of giving him a "hosing" and
wanted to know why. Pfeiffer said he only wanted fewer
hours and better working conditions. Linteau then ordered
him out. As Pfeiffer was preparing to leave, he said he was
trying to organize a union and the drivers were behind him.
He testified that Linteau then nearly threw him out of the
office.12 Pfeiffer testified there was no discussion at this
time about stealing gas . Pfeiffer returned the following
afternoon, April 19, which was payday. Included with his
paycheck was a note reading as follows: "You have been
discharged for dishonesty as of April 17, 1974. Fueling up
your personal car without my permission." Beneath these
remarks was Linteau's typewritten name.
Linteau testified Pfeiffer had been a congenial employee
but his attitude changed sometime in March when he
pressed Pfeiffer for repayment of the loan extended to him
in December 1973. Pfeiffer wanted to defer payment until
he received some money due him from Veterans Adminis-
road." During the course of his direct examination he used this same
expression in referring to another matter In response to a question, he said
the expression means discharge as well as a forced quitting.
8 He was uncertain how many he signed up that day. Thirty-six cards
were received in evidence . Apart from Pfeiffer's card which was the only
one signed on April 16, 19 show they were dated April 17, 7 April 18, 3 April
19, 5 April 20, and I April 22.
9 Reeves was not called as a witness . Linteau testified he instructed
Reeves to call Pfeiffer in and have him punch out because work was slow
and he had an ample number of drivers . According to Linteau , it is not
unusual to have a driver punch out in the middle of the day, this despite the
fact that drivers average about 70 hours a week.
10 Pfeiffer: took a Civil Service examination that morning but had
neglected to tell Linteau he would be in later in the morning.
11 Lmteau admitted during cross-examination Pfeiffer's discharge was
not motivated by the condition of Pfeiffer's hair or beard.
12 He did not elaborate on this conclusionary statement.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tration. But, rather than wait, Linteau started to have $25
deducted from Pfeiffer's paycheck.13 According to Linteau,
Pfeiffer became argumentative with the dispatchers and
everybody in the office after this incident.
According to Linteau, in early March he received a
report from Mickey Amercello, the supervisor of drivers at
the airport, that Pfeiffer had permitted his girlfriend to ride
in the van on two occasions without charging her any fare.
Linteau cautioned Pfeiffer that such conduct was contrary
to regulations and endangered the Respondent's permit.
Pfeiffer said he would not do it again. On March 29,
Linteau espied Pfeiffer as he came to the terminal from the
airport with his girlfriend in the van. Upon his inquiry,
Pfeiffer admitted she did not have a ticket. According to
Linteau, he then told Pfeiffer, "I told him that he couldn't
go on no more. It had to stop. Either that, or I would have
to let him go." Linteau further related that when he
returned to the office at about 9:30 p.m. on Saturday, April
6,14 he received a report from Irving Johnson, on duty as
dispatcher that evening, and Dennis Hulsely, Linteau's
nephew, that they caught Pfeiffer stealing gasoline.15
Johnson reported that Pfeiffer had put 10.4 gallons of
gasoline in his personal car after Johnson had refused
permission and refused to call Linteau for authorization.
About April 9 or 10 Linteau called Pfeiffer into the office
and asked Pfeiffer why he stole the gas and how much he
had taken. According to Linteau, Pfeiffer admitted he took
10.4 gallons but said he intended paying for it as he had in
the past.16 Linteau then told Pfeiffer he should not have
jumped on Johnson and Hulsely for shutting off the pump.
According to Linteau, the next morning he instructed his
bookkeeper that if Pfeiffer did not pay for the gas by April
17,17 he should put a discharge notice in his envelope.18
The bookkeeper was not called as a witness.
Linteau further testified he instructed the chief dispatch-
er, Reeves, on April 17 to call in Pfeiffer because the work
was slow, According to Linteau, he did not talk to Pfeiffer
that day. Pfeiffer was scheduled to report for duty the
following morning at 9 a.m. although he did not appear
until late morning. On direct examination, Linteau related
what then occurred:
Q• Would you tell us what you said to Mr. Pfeiffer to
the best of your recollection and what Mr.
Pfeiffer said to you?
A. I started off telling him about not paying for the
gas and hauling the girl and his attitude and
fighting with the dispatchers and all that and that
it had to stop and unless it stopped, he was done.
We exchanged a few words and I said, that is all.
He said - I am not -
Q. Did you discuss the gasoline?
13 Pfeiffer's statement of earnings for the payroll period ending March 27
showed a $25 deduction . However, the loan was repaid on March 26.
14 Lmteau testified his home is at the Respondent's terminal and he is at
home between 6 p.m. until 9 p.m. when he returns to the office.
15 The Respondent has its own gasoline pump on its premises and the
drivers themselves normally refuel the vans and limousines. The switch to
turn the pump on and off is located in the office and is controlled by the
dispatcher.
16 The record shows that on previous occasions, upon authorization from
Linteau, employees were permitted to refuel their private cars in emergen-
A. Yes, we discussed the gasoline . Discussed hauling
Q.
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A.
the girl passenger - both of those items we
discussed and he said he wasn't going to do it no
more and he admitted again, he took the gas. He
admitted he didn't pay for it on the 18th.
What did you say to him?
I told him it looks like he was all done.
What did he say to you?
He said - so that is the way you do it. I said,
"Yeah, that is the way we do it." I told him the
meeting was dissolved and he said - I am not
through yet. And, I said, there is nothing else to
talk about, Paul.
You are through. The meeting is done. Would you
leave? He said, - I am not done yet. I said, "You can
either leave or I will throw you out. Take your choice."
So, he left.
Q. Did he say anything to you about Union activity
at that time?
A. Yes, he did. Before he left in my office he said to
me - We better talk. I said, "talk about what?"
He said, I represent better than two-thirds of your
employees and I said - as far as I am concerned,
Paul, you don't represent nobody and he walked
out into the main dispatch and he started - He
wanted to stay and talk. He says "I represent
your people."
I said, "Paul, you don't represent nobody. Now, if
you are a union man, go get a union book and come
back and I will talk to you. But, you don't represent
nobody. Get out."
And, so he left.
On both direct and cross-examination, Linteau categori-
cally denied he had any knowledge of Pfeiffer's union
activities prior to the time Pfeiffer himself revealed it to
him during the conversation of April 18. I find his
professed lack of knowledge prior to the time indicated
unworthy of belief. Albert Small, who had been employed
as a driver by the Respondent since January 1973,19 was
called as a witness by the General Counsel. Small credibly
testified he was given a union authorization card by
Pfeiffer at the airport at about 4 or 5 p.m. on April 17.
There were six or seven other drivers present. He signed
the card. When he came back to the Respondent's terminal
late that night, he spoke to Linteau. His testimony follows:
Q. Will you tell the Court what was said by you and
by Mr. Linteau that night?
A. I told him that Paul Pfeiffer was having drivers
Q•
sign cards and that I signed one.
What did he say to you when you told him that?
cies and reimburse the Respondent . It will be remembered this practice
occurred during a period when gasoline was not easily obtainable,
particularly during the evening hours. Pfeiffer himself, on a previous
occasion , was authorized to use the Respondent's pump and paid for the
gasoline.
17 The end of the pay period next following.
18 Referring to the following payday, Friday, April 19.
19 He quit his employment with the Respondent the week before he
testified at the hearing
AIRPORTS SERVICE LINES, INC. 1165
A. He said that I shouldn't have signed one; that I
Q.
A.
should ask for it back.
Did he say anything else at that time?
He also said that I ought to talk to the rest of the
drivers and not have them sign cards.
JUDGE NESS: Was anything said about what kind of
card?
TuE wrrNEss: Union cards, sir.
JUDGE NESS: Tell us to the best of your memory.
TI->a wrlNEss: I informed Mr. Linteau that Paul Pfeiffer
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was at the airport that evening and that some of
the drivers were signing union cards to effect an
election for organized labor to represent the
drivers. I said that I signed one.
(By Mr. Fisher) What did he say?
He said that I should have not signed one.
What else did he say?
He said that I should ask for it back.
What else did he say?
He said that I should tell the rest of the drivers not
to sign the cards. Then he also said that I should
ask for the card back, which I did the following
day.
Who did you ask for the card back from?
I asked Paul for the card back the following day.
What else did he say to you, Mr. Linteau?
Paul informed me that he didn't have the card with
him. So, on the night of the 18th, I told him that I
didn't get the card back.
Who did you tell that to?
Mr. Linteau, that I couldn't get the card back.
What did he say?
He said he would have an affidavit made so that I
could get the card back, or declare it void, or
something like that.
Although Linteau testified extensively on other matters, he
was not questioned about this conversation. Irving John-
son, who had been called as Respondent's witness as to
other matters, testified he was solicited by Pfeiffer to sign
an authorization card. He said he had no clear recollection,
but he believed the solicitation took place before the
discharge and he told Linteau that Pfeiffer was soliciting
employees to sign union authorization cards. He had no
recollection whether he reported this incident to Linteau
before or after Pfeiffer's discharge 20 Here too, Lmteau was
not asked about this incident.
Lynn Sawyer, a dispatcher-trainee who worked in the
office,21 credibly testified she overheard Linteau and
Green talking in the office on April 17 shortly before
Pfeiffer was called in from his last run. She credibly
testified as follows:
Q. What did you hear what they were discussing?
20 It appeared to the undersigned that Johnson had a convenient lapse of
memory as to when he reported it.
21 She was discharged at the close of the workday on April 18 and is
named as an alleged discrinunatee in the complaint.
22 Thatsamalai moved in with Pfeiffer in February and Linteau was
aware they lived together. Thatsamalai testified Lmteau's reference to
Pfeiffer, supra was made on April 16 dung his first conversation with
A. That Paul was trying to organize a Union and they
wanted him off the road.'
Green testified the first she knew of Pfeiffer's union
activity was when Linteau reported this to her on April 18
after his conversation with Pfeiffer. Neither Linteau nor
Green was questioned about their conversation as related
by Sawyer.
Proteep Thatsamalai, also an alleged discriminatee,
credibly testified that while Linteau was talking to him
about an accident in which he was involved, Linteau told
him he had heard his roommate, Pfeiffer, was trying to
organize a union.22
Solomon Chatman credibly testified he was given a
union authorization card by Pfeiffer on April 17 which he
signed on that date. There were about six or more drivers
present. While Chatman and the other drivers were
discussing the Union23 Mickey Amercello joined the
conversation. Chatman testified as follows:
Q- What did this fellow Mickey Amercello say when
he joined the group?
A. Another employee, a guy was talking, he joined
the conversation and he was talking about the
union and he said, Paul Pfeiffer is going at it the
wrong way. He said, "We are going to get a
union. Louis is working on it. The boss. He said
he is working on it. It takes time. We are going to
have a union. I don't know what you call it. I
would be the steward of it. I will be one of the big
men."
JUDGE NESS: Who would be?
THE WITNESS: Mickey.
Q. What did he ask you?
A. He asked me did I sign the card.
Q. What did you say?
A. I told him yes.
On cross-examination Linteau testified he did not recall if
Amercello told him of the solicitations at the airport.
Amercello was present in the hearing room while Linteau
testified but was not called by the Respondent.
Based on the foregoing, I find that on the morning of
April 17, before Pfeiffer was recalled to the office, Linteau
was apprised of Pfeiffer's union solicitations at the airport
and this motivated him to direct Reeves to notify Pfeiffer
to return and punch out.
Although Linteau's notice of discharge to Pfeiffer stated
only that the discharge was because Pfeiffer had fueled his
personal car without permission, Linteau elaborated on his
reasons for his action. His testimony in this regard follows:
Lmteau relating to his accident which will be discussed fully below.
Thatsamalat testified the second conversation with Linteau about the
accident took place on April 17. I am convinced Thatsmalat was mistaken
as to the date the reference to Pfeiffer's union activity was made and find it
was made on April 17, rather than April 16.
23 Chatman placed this at about 7 to 8 p.m.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q• When can you tell us you made the decision to fire
him?
A. A week before the 6th. Friday, March 29th. I had
Q.
A.
Q.
A.
Paul Pfeiffer in my office pertaining to him
hauling unauthorized passengers. That was the
night he had his girlfriend - that is the second
time that I told him to discontinue it and he had
agreed with me to discontinue it and evidently he
wasn't, so he was on reprimand.
That isn't what I asked you.
Wait until I finish.
I didn't mean to interrupt.
Then on the 6th, the incident of the gas, which was
on a Saturday, it was brought to my attention
Saturday night. I believe I talked to Paul Tuesday
or Wednesday of that week, first chance I had to
see him or he saw me. I asked him about the gas
and the swearing at Dennis and why. And that is
when he told me he intended to pay for it. I said,
"Okay, we will see if you pay for it."
So, Friday he hadn't paid for it and he said no, and
that was the end of our meeting. I instructed the
bookkeeper that if the money wasn't in by the 17th, to
put a discharge notice in his envelope and that was it.
Irving Johnson and Dennis Hulsely, Respondent's
witnesses , testified about the gasoline incident which
Respondent contends was the principal reason for his
discharge. If I were to credit Linteau's testimony, I would
then have to assume that had Pfeiffer paid for the gasoline
by April 17 he would not have been discharged.
Johnson is employed elsewhere in a supervisory capacity
and has maintained a second job with the Respondent for
the past 5 years, putting in 30-45 hours a week. Weekdays
he operated as a driver for the Respondent and on
Saturday nights he acted as the dispatcher at the office.
Johnson related that on Saturday night, April 6, Pfeiffer
had completed his day's run and came to the office to
check out. Pfeiffer asked if he could have gas for his
personal car because he was completely out of gas and no
station would be open. Johnson responded that he could
not authorize it. Pfeiffer then went out and Johnson
assumed he would then wash and gas up the Respondent's
van. About 10 minutes later, Dennis Hulsely came in, cut
the switch thereby shutting off the pump and said Pfeiffer
was putting gas in his car. Johnson said he then went out
and observed the van next to the pump and the gas hose in
Pfeiffer's car parked close to the van. He noticed the pump
registered 10.4 gallons of gas. Pfeiffer admitted to him he
had put gas in his car and asked Johnson to call Linteau
"and he will say it is all right." Johnson refused to call. He
testified he then reported this incident to Linteau later that
evening when Linteau returned to the office. Hulsely,
Linteau's nephew also testified about this incident. The
cold record does not reflect that his responses to questions
were extremely slow in forthcoming. He appeared to be
confused and befuddled. He is illiterate and, as Respon-
dent states in his brief, retarded. I credit his testimony to
the extent that he saw the hose in Pfeiffer's car and
thereupon cut the switch in the office shutting off the pump
and he told Johnson that Pfeiffer was stealing gas.
Pfeiffer testified the gasoline incident took place on a
Friday night, probably March 29 24 He related his gas tank
was almost empty and he did not find Linteau on the
premises. He told Johnson he wanted to refuel the van and
the switch was then turned on. He refueled the van and as
he was in the process of transferring the hose to his car,
Hulsely came by, saw him, and went to the office and
turned off the switch. Pfeiffer said he had intended putting
gasoline into his car but the switch was cut off before he
could accomplish this. He then asked Johnson and Hulsely
to call Linteau for authorization and they refused. He
testified he then found a gas station open (about 8 or 9
p.m.) about 2 miles away and had 16 gallons put in his car.
He denied he put any gasoline into his car from the
Respondent's pump. He rationalized that Linteau would
have authorized him to have the gas had he been there and
he (Pfeiffer) would have paid for the gasoline the following
day. He testified he intended getting just enough gas to see
if a gas station was open. Several days later, Linteau spoke
to him. Pfeiffer's testimony follows:
A. A few days later, I was brought in. I was getting
Q•
off work late one evening. It might have been a
Sunday night. I am not real sure. There was
conversation about a girl who had ridden in the
car and also a conversation about the gas.
What was the conversation? That is what we want
to know. Did he say he was going to threaten to
fire you?
A. No. He just got mad. I explained - Hey, I
intended to pay for the gas. I didn't get any and I
didn't owe him any money.
JUDGE NEss: What did he say? You say he got mad,
what did he tell you? What did he say to you
about it?
THE WnNESS: We discussed a girl who had ridden in
my limo on Friday night. I didn't charge her a
fare because we were going out that evening. I
didn't have the money to buy gas that night with
my paycheck and I hadn't been able to cash my
check that Friday either because of the company
policy of not issuing the paychecks until after
work on Friday.
That following Sunday I was called in and repri-
manded me for carrying the girl. I said, "Fine. I won't
argue about it." I paid him for the girl's fare.
We also had a few words - not very much was
mentioned about the gas at that time.
JUDGE NESS: What do you recall was mentioned?
THE wrrNESS: He made reference that Irv Johnson- or
that I had no right to get mad at Irv Johnson and
Dennis for not letting me take the gas that night
and pay him the next day - assuming there was
the authority to let me buy the gas. That I had no
right to get mad at them for that.
24 Since It is uncontradicted Johnson was on duty as dispatcher only on
Saturdays, I find the gasohne incident occurred on a Saturday, and more
specifically on Saturday, April 6.
AIRPORTS SERVICE LINES, INC. 1167
He denied Linteau accused him of appropriating gasoline
for his own use and denied he told Linteau he would
reimburse the Company for the gasoline. He also denied
the gasoline incident was mentioned again in the discus-
sion with Linteau on April 18.
Analysis, Additional Findings, and Conclusions
Pfeiffer sought out Linteau to get permission to refuel his
car but when he discovered Linteau was not on the
premises, he attempted to put gasoline into his car.
Although not free from doubt, L believe this attempt was
aborted when he was observed by Hulsely before he had
the opportunity to put the gasoline into his car. I have no
doubt that Johnson noted the pump showed 10.4 gallons
had been taken but I credit Pfeiffer's testimony that the gas
taken was put into the van rather than into his own car. On
the other hand, I believe Johnson and Hulsely thought
Pfeiffer had appropriated the gasoline for his own car and
so reported to Linteau.
Both Linteau and Pfeiffer agree that shortly after the
gasoline incident they discussed the matter and Linteau
was critical of Pfeiffer for getting mad at Johnson and
Hulsely for not having given permission to take gasoline
for Pfeiffer's personal use. The line of departure is whether
Pfeiffer admitted taking the gasoline and promising to pay
for it. I believe not. Nor do I believe Linteau instructed the
bookkeeper to put a discharge notice in Pfeiffer's pay
envelope on April 19 if payment was not made for the
gasoline by April 17 25 I believe Pfeiffer explained to
Linteau on or about April 10 that he did not take any
gasoline for his personal use but had he been able to take it
he intended to pay for it, as he had in the past. I do not
believe Linteau at that time was convinced Pfeiffer had
actually appropriated gasoline for his own use. It would
appear that if Linteau was not content with Pfeiffer's
explanation, he would not have been satisfied with closing
this incident without further disciplinary action against
Pfeiffer merely by, payment for the gasoline by April 17.
From all that appears, the thrust of Linteau's criticism of
Pfeiffer on April 10 was Pfeiffer's resentment towards
Johnson and Hulsely for not granting permission to take
gasoline for his use. Although the notice given to Pfeiffer
on April 19 stated he was discharged for "fueling up your
personal, car without my permission," I do not believe this
was the true reason for his discharge. As related above,
Linteau, according to his own testimony, talked to Pfeiffer
on April 18 "about not paying for the gas and hauling the
girlls and his. attitude and fighting with the dispatcher and
all that and that it had to stop and unless it stopped, he was
done. We exchanged a few words and I said, that is all."
(Emphasis supplied.) Linteau testified that after Pfeiffer
admitted he still had not paid for the gasoline, Linteau
"told him it looks like he was all done." Certainly when
Linteau called Pfeiffer into the office on April 18, he must
have known Pfeiffer had not paid for the gasoline by April
17, as allegedly, he was supposed to. Yet despite this
awareness and after speaking to Pfeiffer about the gasoline
and other alleged infractions, Linteau only threatened to
discharge Pfeiffer unless it stopped, I find Linteau's version
s,s As noted heretofore the bookkeeper was not called as a witness.
of the April 18 meeting with Pfeiffer unconvincing. As
Pfeiffer stated, the gasoline incident was not even men-
tioned in this conversation. I am convinced the gasoline
incident had been a closed chapter and was reborn only
when Linteau searched for an otherwise justifiable reason,
but not the true reason, to be recorded as the basis for the
termination. Summarizing, I find Linteau became aware of
Pfeiffer's union activities on April 17; he called Pfeiffer
into the office on April 18, accused Pfeiffer of giving him a
"hosing," this referring to Pfeiffer's union activities, and
unlawfully discharged him then and there for that reason. I
find such discharge on April 18 was effected because of
Pfeiffer's attempts to -seek union representation for the
Respondent's employees and thereby violated Section
8(a)(1) and (3) of the Act.
C. The Discharge of Lynn Sawyer
Sawyer began her employment on March 14 and was
discharged at the end of the workday on April 18 26 She
was hired as a dispatcher-trainee. She answered the
telephones and took calls from customers wanting rides to
the airport. She operated the timeclock to record when the
time drivers reported on and off duty. She also maintained
a list of employees and their telephone numbers and, when
required, called employees to report for runs . As men-
tioned, supra, Pfeiffer and Thatsamalai became roommates
in February and this was known to the Respondent.
Admittedly, the Respondent was also aware that Sawyer
was extremely friendly with Pfeiffer and Thatsamalai and
spent considerable time at their apartment. She signed a
union authorization card at their apartment the evening of
April 17. Sawyer admitted she was frequently criticized by
Linteau for being too friendly with the drivers, particularly
Pfeiffer, and spent too much time talking on the telephone
with drivers and customers. It is undisputed Linteau was
dissatisfied with Sawyer's performance and repeatedly
threatened to discharge her.
Sawyer testified that at the end of her shift at about 4:30
or 5 p.m. on April 18 she was called in to Linteau's office.
Cynthia Green was also present. Sawyer was asked to bring
in her purse. Her testimony as to what then transpired
follows:
They asked me for a list that I had prepared and
they wanted whatever information I had about any
employee in the office. I handed them the notebook
and told them to look through it. Cindy opened it to the
page where her and Mr. Linteau's name appeared on a
page and asked why I had her phone number. I stated
that there were times that I might have needed to call in
because it was so improper - I never knew exactly
what was expected of me at my job.
At that point, I took the page, because I had other
numbers on it and gave her phone number and she
said, - is there anything else in your purse that would
be pertaining to our business and I said, No. There is
not.
She asked me - Louis said to me, "Lynn, we have to
let you go because we don't trust you. You are involved
26 Linteau discharged Pfeiffer earlier that same day.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in something or another." He said - do you have
anything to say.
Later in her testimony she added that Linteau also said,
"You are another Philly lawyer, just like Paul." (An
obvious reference to Paul Pfeiffer.) Linteau testified he
discharged Sawyer for a variety of reasons. He stated he
became disenchanted with her as an employee "the second
day and third and the fourth and the fifth and the sixth and
every day after that." She was terminated after 5 weeks of
employment. Linteau stated she had the ability but did not
care to do a good job. As for the reasons for discharging
her, Linteau said she was too friendly with the drivers, she
spent too much time on the telephone talking to drivers
and customers, she walked around barefoot in the office,
she was poorly dressed, she drank coffee 20 times a day,
and practically every day she would let the office
telephones ring without answering them. Linteau related
that the most recent incident, and the so-called straw that
broke the camel's back, occurred on the morning of April
18. That morning Reeves, Sawyer, and he had been
answering the telephones accepting reservations when he
observed that Sawyer was not at her desk. He noticed she
had gone to the drivers' office, immediately outside the
main office, and was using the public telephone. He
testified she was talking to Pfeiffer. He ordered her to
return to the main office to answer the telephones. About
45 minutes later, he again noticed she was away from her
desk and was using the public telephone, talking to her
mother- Again he ordered her back to her desk. At noon he
told Green he would discharge Sawyer at the end of the
work day. Linteau admitted he asked her for her notebook.
When he saw both Green's and his telephone numbers in
her book, he told her he did not trust her.27 It is clear from
the record that their telephone numbers in Sawyer's book
had nothing to do with her discharge.28
Analysis, Additional Findings, and Conclusions
The Act does not permit an employer to substitute a
"good" reason for the "real" reason when the purpose of
the discharge is to retaliate for an employee's conceited
activity. Linteau said Sawyer's two personal telephone calls
the morning of April 18 represented the "straw that broke
the camel's back." I find this unworthy of belief. Linteau
bore up day in and day out for 5 weeks while, according to
Linteau, Sawyer performed her duties poorly and during
which time she was constantly subjected to criticism. This
is not to even suggest Linteau had to continue to' tolerate
such behavior. But talking on the telephone was nothing
new for Sawyer. Linteau said she would be talking "to a
driver or roommates on the telephone and letting the
[other] phones ring." He said this occurred "every day that
she worked there." I am convinced Linteau's prophecy to
Pfeiffer on April 10 that anyone fostering a union would go
"down the road" rang true 10 days later when both Pfeiffer
27 Both Green and Lmteau had unlisted numbers.
2s Green testified when the decision was made to discharge Sawyer, she
alerted Linteau not to permit Sawyer to retain her private unlisted telephone
number.
29 Suffice it to say Linteau reasoned , justifiably or not, she spent an
inordinate amount of time in their apartment . He did say however what she
and Sawyer were discharged. Linteau became aware of
union interest among the employees when, on April 17, he
learned of Pfeiffer's union solicitations of the other
employees. Coming on the heels of Pfeiffees recall on April
17, his discharge during the day on April 18 because of his
union activities, I am satisfied Sawyer reached the end of
the road and was similarly discharged for unlawful reasons.
I am convinced the real stimulus for the discharge was
Lmteau's belief she was allied with Pfeiffer in his attempts
to engender interest amongst the employees to seek union
representation. He was aware that Sawyer enjoyed an
extremely close relationship with Pfeiffer and Thatsama-
lai.29 Under these circumstances, I find and conclude the
Respondent's discharge of Sawyer violated Section 8(a)(1)
and (3) of the Act.
D. The Discharge of Proteep' Thatsamalai
Thatsamalai started his employment with the Respon-
dent in January 1974 as a driver. He worked days and
attended school three evenings a week.30 As mentioned
above,, he started sharing an apartment with Pfeiffer in
February. Linteau had given him permission at that time to
use a company van to move his belongings. Thatsamalai
was given a union authorization card by Pfeiffer which he
signed the evening of April 17. About three to four times a
week, at the end of -the workday, he would take Sawyer
home or to his apartment.
On April 12, Thatsamalai completed his work about
4:30-5 p.m. While waiting for Sawyer to finish working, he
recalled he needed a refill of a prescription medicine he
had ' been taking for an illness. His personal, car on the
premises was inaccessible; another car was blocking it. He
therefore took the company van -' without asking for
permission - and drove to a drugstore about 2 miles away.
On the return trip he was involved in an accident with
another vehicle, apparently with insubstantial damage. He
called the police to the scene and a police report was
prepared. When he returned to the Company, he tried to
see Linteau but Linteau was at that time unavailable.
Finally, on April 16, in the late afternoon, he was able to
report the accident to Green. He filled out an accident
report and, at Green's request, obtained a copy of the
police report which he gave to her. That same evening
Linteau met with him. Linteau asked if there were any
other occasions when he had used company vehicles
without permission and Thatsamalai admitted there had
been four other such times when his car would not start.
Linteal4 'explained the seriousness of using company
vehicles without permission and being involved in acci-
dents in such situations . Linteau then asked if Thatsamalai
had been involved in other accidents when he had used
company vehicles without permission. Thatsamalai re-
sponded he could not recall any accidents . Linteau then
said he wanted to give Thatsamalai another chance to
continue on the job. He told Thatsmalai to think about it
did on her own time was her business and this was not one of the many
reasons put forth for her discharge.
30 Thatsamalai is not fluent with the English language and at tunes
appeared to have difficulty in expressing himself. With this in mind, I found
him to be an honest witness with the intention of telling the truth as he knew
it to be.
AIRPORTS SERVICE LINES, INC. 1169
overnight and let him know the next day if there had been
any more.31 Thatsamalai returned the following day, April
17, and again met with Linteau. As mentioned earlier in
this decision, I have found it was at this second meeting
that Linteau said he heard Pfeiffer, Thatsamalai's room-
mate , was trying to organize a union. Thatsamalai denied
he was aware of such activity 32 Thatsamalai testified
Linteau asked if Thatsmalai had anything more to tell him
and still had not told him what he knew. According to
Thatsamalai, he told Linteau he could not recall anything
he did wrong but if Linteau had anything specific in mind,
he would respond if it were true or not. Once again,
Linteau told him to take another day to think about it and
to call back the following day.33 Thatsamalai called back
the next day but apparently Linteau was unavailable.
Thatsamalai did not contact the Respondent again nor did
he hear from the Respondent 34
Linteau testified that at both meetings he asked
Thatsamalai if he recalled other accidents. When Thatsam-
alai initially admitted company vehicles had been used
without permission on other occasions, he wanted to know
whether Thatsamalai had been involved in any other
accidents. Linteau testified he did not permit Thatsamalai
to continue working until he was sure Thatsamalai had not
been involved in any other accidents. He said he had
Thatsamalai appear before him on the two successive days
and on both occasions asked if there were any more
accidents. It is undisputed however that on both occasions
Thatsamalai denied any culpability. Initially in his exami-
nation, Linteau did not state he told Thatsamalai he could
return to work. The thrust of his testimony was that on
each occasion he asked Thatsamalai to think over whether
there were other accidents so that "he could get a clean bill
of health and go on back to work." When Thatsamalai at
their second meeting again could not recall-involvement in
any other accidents, Linteau, according to his testimony on
direct examination, said, "Take another day or two off.
Think about it and come back and see -me." However
during the course of cross-examination, he testified as
follows:
The second time he was in my office and said he
couldn't recall, I said - Fine, go home and come back
tonight and we will straighten it out. You will go to
work in the morning. He worked days. But, he didn't
come back that night.
Analysis, Additional Findings, and Conclusions
Linteau impressed me as an unreliable witness, devoted
to putting the Respondent in the most favorable light.
When Linteau first questioned Thatsmalai on April 16
about other accidents, I have no doubt he sent Thatsamalai
home to search his memory and then to return the
31 Thatsamahu testified Linteau said he thought Thatsamalai may be
holding something back and wanted to give him time to think about It It
seems. clear Lmteau at this time was referring to any other possible
accidents.
32 But he was.
33 hatsamalai related he spoke to Linteau on 3 successive days
altogether, whereas Lmteau testified they only met twice. I believe
Thatsamalai was mistaken and what has been related above is what
occurred at the second and last meeting between the two.
following day and, report whether or not there were any
other accidents. However I cannot accept Linteau's
inconsistent testimony as to what occurred the second day.
I believe that at this second meeting when Linteau
commented on Pfeiffer's union activities and Thatsmalai
professed no knowledge of it, Linteau sent him home again
- but not to think about other accidents. Thatsamalai on
2 successive days had already pleaded innocence. On this
second day, April 17, Lmteau was already aware of
Pfeiffer's union activities. On this second day, Linteau,
aware that Thatsamalai was Pfeiffer's roommate, was now
attempting to pry from Thatsamalai any knowledge he
may have had regarding the organizational activities. I
cannot accept Respondent's argument that the first 2 days
that Thatsamalai was denied work constituted a lawful
disciplinary layoff and thereafter Thatsamalai voluntary
quit by not returning. Thatsamalai was not told he was to
return to work. Instead he was told to come back again to
talk - to tell what he knew. In my opinion, what Linteau
was then waiting to receive was information from That-
samalai concerning the union organizational activities that
had just commenced. Under these circumstances, I find
that, rather than a voluntary quit, Linteau's actions on
April 17 constituted an unlawful discharge in violation of
Section 8(a)(1) and (3) of the Act.
E. The Discharge of Solomon Chatman
Chatman had worked for the Respondent as a driver
from March to October 1973 when he voluntarily quit. He
was rehired on April 8 and the last day he worked was
April 30. During his previous employment with the
Respondent, Chatman did not work on Sundays.35 When
Chatman resumed his employment on April 8, Linteau
recalled that Chatman had been reluctant to work Sundays
in his previous tour of duty. Linteau asked Chatman to
work Sundays and Chatman said he would try.36 There-
after Chatman worked the following two Sundays. He did
not work on Saturday, April 27 or on Sunday, April 28.
Several days later Linteau asked Chatman why he had not
reported to work on Sunday. Chatman said he could not
work on Sundays. Linteau then said he needed drivers
available for Sunday work and Chatman could return to
work only with the understanding that he would be
available for Sunday work. Chatman never returned{. It will
be recalled, as described earlier, Chatman admitted to
supervisor Amercello on the evening of April 17 he signed
a union card . Chatman credibly testified that on April 19
Linteau called him into the office. His testimony follows:
I went there . He asked me to come into his office and I
went into his office and he told me to have ' a seat.' "I
heard you talking about union." He put it in initials. I
34 He received an offer of reinstatement on July 18 - after the
complaint bad issued.
35 He explained he told Linteau he was a deacon in his church in charge
of the treasury and had to be in church on Sundays I do not credit
Lmteau's testimony that Chatman had worked Sundays about 50 percent of
the time . No record of Chatman's previous employment were made
available at the hearing . Nor do I credit Lmteau 's testimony that he was
unaware Chatman was a deacon in the church until after April 30.
36 The drivers were off one day a week and rotated their days off.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
don''t know - national - international. I don't know.
But anyway, he said, "Why are you fighting me?"
I said, "I am not fighting you. If you are speaking of
a union - that is what you are talking about - I am
for a union."
He said, "Well, we are going to get our own union.
These things got to be.ironed out."
I said, "I am not fighting you." I had missed a
Sunday from work - which I don't work a Sunday.
Linteau did not specifically deny there was a discussion of
the Union. He denied he asked Chatman why "he was
fighting him." He testified Chatman had come in to borrow
money.
Analysis, Additional Findings, and Conclusions
During Chatman's previous employment in 1973 as a
driver, Chatman did not work on Sundays because of his
position with his church and this was known to Linteau.
When Chatman was rehired in January he was requested
by Linteau to work on Sundays and Chatman indicated he
would. He worked the first two Sundays but then failed to
report as scheduled on Sunday, April 28. Several days later
when he told Linteau he could not work on Sundays
because of his church duties, Linteau told him, in effect, he
could not continue to work for the Respondent unless he
was agreeable to working Sundays. Thus the employment
relationship was terminated.
The Respondent was aware on April 17 Chatman signed
a union authorization card. Linteau on April 19 attempted
to discourage Chatman from supporting the Union.
However, I am not convinced the evidence favors a finding
Chatman was discharged for his protected activities. Before
any union organizational activities had begun, Chatman
was alerted by Linteau he would be expected to work
Sundays - that being a busy day. It was when Chatman
first failed to report for a Sunday assignment that he was
called in by Linteau and told of the necessity to work
Sundays. It seems clear from the record Chatman could
have continued his employment, this despite Respondent's
awareness he had signed a union card, had he expressed a
willingness to accept Sunday assignments. Under these
circumstances, I find and conclude that a violation of
Section 8(aXl) and (3) has not been established and shall
recommend this allegation of the complaint be dismissed.
F. Independent Violations of Section 8(a)(1)
1. Interrogation and threats
As found above, Amercello interrogated Chatman on
August 17 about whether he signed a union card. In the
context wherein Amercello expressed Respondent's oppo-
sition, such interrogation was unlawful. I also find
Respondent violated the Act by Linteau's solicitation of
Small on April 17 to get back the Union card he signed and
to tell other employees not to sign such cards. It is worthy
to note that although Small volunteered'he had signed the
card, he did not indicate to Linteau any interest in
retrieving the card. I further find that Linteau's threat to
Pfeiffer on April 10 to discharge employees interested in a
union violated the Act. In absence of a brief by the
General Counsel or otherwise explicated in the record, I
can only assume that the General Counsel also contends
Linteau's threat to throw Pfeiffer out of the office at their
meeting on April 18 violated the Act. However, I cannot
find, based upon Pfeiffer's conclusionary statement that
Linteau "nearly threw me out of the office," or even on
Linteau's version that he asked Pfeiffer to leave or be
thrown out, that Linteau's action supports the allegation of
unlawful conduct.
2. Increase of hourly rates
The General Counsel amended the complaint at the
hearing to include the allegation that on June 12 the
Respondent raised the hourly rates of employees and thus
violated Section 8(a)(1) of the Act. The record discloses
Small's hourly rate was increased from $2.35 an hour to
$2.50 during the pay period ending June 12. The standard
rate for drivers was $2.35 an hour. However in early 1974,
before any union activity arose, the Respondent had
initiated what it termed a charter board and the increase of
15 cents an hour was given to employees who were
promoted to the charter board. Based on the foregoing, the
evidence is insufficient to support a finding of a violation
of the Act and I shall recommend this allegation be
dismissed.
3. Promises of benefit
This allegation was also included by the General Counsel
by amendment at the hearing. Here, the General Counsel
alleges unlawful promises of benefit on about July 15,
relying upon a letter given by the Respondent to employees
on about July 12. In this letter37 the Respondent
announced a profit-sharing plan had been approved by the
Internal Revenue Service and the effective date was
retroactive to December 30, 1973. The record discloses that
the plan had been prepared by Respondent's counsel and
was submitted to Internal Revenue Service on February
20, this prior to the advent of the Union organizational
activities. The plan was approved by IRS on April 25.
Although the announcement of this plan was made about 2
weeks before the Board conducted election, I find this
insufficient to warrant a finding that such announcement
constituted a violation of the Act.-'s
I find it unnecessary to relate in detail the other
announcements in this letter. They referred to vacations,
rates of pay, and conditions under which employees may
be discharged. The record disclosed that these announce-
ments reflected rates of pay and working conditions in
effect prior to any union organizational activities. Accord-
ingly, I find this allegation lacks merit and shall recom-
mend dismissal.
37 G.C . Exh. 10. 38 Linteau testified that early in the year he told employees the,
Respondent was working on the plan.
AIRPORTS SERVICE LINES, INC. 1171
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
10(c) of the Act, I hereby issue the following recommend-
ed:
Tie activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
con merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 614, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By engaging in the conduct described above in
section III,F,1, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By discharging Paul Pfeiffer and Lynn Sawyer on
April 18, 1974, and Proteep Thatsamalai on April 17, 1974,
for engaging in union activities, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Ad.
6. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I t having been found that Respondent discriminatorily
discharged the above-named employees, it will be recom-
mended that Respondent be ordered to offer them full and
immediate reinstatement, without prejudice to their senior-
ity or other rights and privileges, and to reimburse them for
any loss of pay they may have suffered. Backpay shall be
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), from the date of the discharge to the
date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
39 In the event no exceptions are filed as provided by Sec. 102.48 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
ORDER39
Respondent, Airports Service Lines, Inc., its officers,
agents, successors and assigns , shall:
1. Cease and desist from:
(a) Discharging employees because they engage in union
activities.
(b) Threatening employees with reprisals because they
engage in union activities.
(c) Coercively interrogating employees about their union
activities.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Paul Pfeiffer, Lynn Sawyer, and Proteep
Thatsamalai immediate and full reinstatement to their
former positions or, if their jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges and make them
whole for any loss of pay they may have suffered in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to analyze and compute the amount of backpay due under
the terms of this Order.
(c) Post at its place of business in Pontiac, Michigan,
copies of the attached notice marked "Appendix."40
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices-to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT is ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
40 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, 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:'