Blue Motor Coach Co.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1484 (N.L.R.B. 1964)

1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to call for the Board 's application of its contract -bar rules. Pazan Motor
Freight, Inc., 116 NLRB 1568, 1570. Most recently , the Board has concluded that
"where the incumbent union is the certified bargaining representative , a current
contract should constitute a bar to a petition by either of the contract parties during
the entire term of that contract" regardless of the fact that such a petition might
otherwise be timely under contract-bar rules. Montgomery Ward & Co., Incor-
porated, 137 NLRB 346. And, finally, the Board has held , consistently, that when
some "incumbent, uncertified" union holds a current contract with an employer,
no representation petition filed by the employer will be entertained for the dura-
tion of the contract 's term. The Absorbent Cotton Company, 137 NLRB 908. Since
the Board does not permit a contractually bound employer to avoid its valid com-
mitments or contractual obligations through the use of Board process, particularly
through the filing of representation petitions , statutory objectives could hardly be
promoted, with logical consistency , by a determination that unions privy to currently
viable contracts, whether certified or not , may be required to face the test of a rep-
resentation election , within a picketing context , upon pain of Board sanctions.)
For the reasons indicated , I find Respondent Council 's picket line should not be
considered subject to proscription , pursuant to Section 8(b)(7)(C) of the statute
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case , I recommend that the present complaint against Building and Construc-
tion Trades Council of Ventura County be dismissed in its entirety.
Blue Motor Coach Company and General Drivers , Warehouse-
men and Helpers , Local Union No. 89, affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America. Case No. 9-CA-2875. June 30,1964
DECISION AND ORDER
On April 28, 1964, Trial Examiner Samuel Ross issued his Decision
in the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices in viola-
tion of the Act, and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Counsel
filed a brief in answer to the Respondent's exceptions and brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
1 Respondent takes exception to the Trial Examiner 's conduct of the hearing , alleging
restrictions on its right to cross-examine , bias and prejudice , improper refusal to grant a
continuance , and a denial of due process . We are satisfied , on the basis of the entire
record , that these allegations are wholly without merit . The assertions of the Respond-
ent, whether based on the record or on alleged off-the - record conduct , do not indicate that
the Trial Examiner had prejudged this case or acted with any prejudice to Respondent
To the contrary , the record discloses that the Trial Examiner conducted the hearing in
a judicial manner, and his Decision shows a thorough and careful appraisal of the facts,
wholly within the meaning of Section 102.35 of the Board 's Rules and Regulations,
Series 8, as amended . Therefore, we affirm the Trial Examiner 's denial of a continuance,
and we deny Respondent ' s request for removal of the Trial Examiner.
147 NLRB No. 134.
BLUE MOTOR COACH COMPANY 1485
The Board has considered the Trial Examiner's Decision and the en-
tire record in this case, including the Respondent's exceptions and
brief and the General Counsel's reply thereto, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed May 31, 1963, by General Drivers, Warehousemen and
Helpers, Local Union No. 89, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America (herein called the Union),
the General Counsel of the National Labor Relations Board issued a complaint
dated July 22, 1963, against Blue Motor Coach Company (herein called the Com-
pany or the Respondent), alleging that the Company had engaged in and is engag-
ing in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the Act. In substance, the complaint alleges that the Company
engaged in acts of interference, restraint, and coercion of employees in the exercise
of rights guaranteed by the Act, and discriminated against one employee, William
H. Hamilton, by terminating his employment and refusing to reinstate him because
of his interest in, and efforts to join and assist, the Union. The Respondent filed
an answer denying the substantive allegations of the complaint and the commission
of unfair labor practices.
Pursuant to due notice, a hearing was held at Louisville, Kentucky, on September 12
and 13, 1963, before Trial Examiner Samuel Ross. All parties were represented at
the hearing and were afforded full opportunity to be heard, to introduce evidence,
to examine and cross-examine witnesses, to present oral argument, and to file briefs.
On October 28, 1963, the General Counsel filed a brief which has been carefully
considered.'
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Kentucky corporation, is engaged in the operation of a
suburban transit system in Louisville, Kentucky. During the past year, a representa-
tive period, the Respondent's gross volume of business exceeded $250,000, and it
received goods, commodities, and merchandise valued in excess of $6,000, which
were shipped to its place of business directly from points outside the State of
Kentucky. On the foregoing stipulated facts, I find that the Respondent is engaged
in commerce and in operations affecting commerce within the meaning of Section
2(6) and (7) of the Act.
'In lieu of a brief, on October 28, 1963, the Respondent filed an appeal to the Board
from the denial by the Trial Examiner of Respondent's request for a continuance of the
hearing, and a motion for a hearing de novo before another Trial Examiner, on the ground
that "bias and prejudicial attitude" deprived the Respondent of "his right by [sic] due
process." A copy of said appeal and motion was served upon the Trial Examiner. The
General iCounsel has indicated his opposition thereto in his brief (pp 12-13) and in a
"statement In opposition" filed on December 26, 1963. During the hearing, no motion
for his disqualification was addressed to the Trial Examiner Since the current appeal
and motion are addressed to the Board and not the Trial Examiner, and since the record
adequately reflects the reasons for the rulings of the Trial Examiner from which the
Respondent appeals, comment, either regarding alleged off the record statements, or the
merits of the appeal and motion, is regarded as inappropriate.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's organizational campaign
The Respondent operates five different buslines on fixed schedules between various
points in the suburbs of Louisville, Kentucky, and the downtown area of that city.
The Company employs about 20 busdrivers to operate its buses, and 4 employees
to clean, maintain, and repair them. At the times material herein, none of these
employees were represented by any labor organization.
In November 1962, two of Respondent's busdrivers, William H. Hamilton and
Elzy Franklin Moss, after discussing their working conditions, decided that they
should try to organize the Respondent's busdrivers. Thereafter, Hamilton con-
tacted a representative of the Union, discussed with him the procedure necessary to
secure collective-bargaining representation of the employees by the Union, and
obtained a supply of union authorization cards for the busdrivers to execute. During
the next 2 or 3 weeks, Hamilton and Moss solicited Respondent's drivers to sign the
union authorization cards, and between them succeeded in obtaining 13 or 14 signed
cards which were turned over to the Union.
On February 18, 1963,2 the Union filed a petition with the Board's Regional
Office for certification as the exclusive collective-bargaining representative of Re-
spondent's busdrivers.3 On April 25, a hearing was held'on the representation peti-
tion which Hamilton and Moss attended on behalf of the Union. On May 17,
the Regional Director issued his Decision and Direction of Election, in which, inter
alia, he overruled the Respondent's contentions that it was engaged in commerce and
the Union was not a labor organization. On May 24, the Respondent requested
the Board to review the Regional Director's decision, and on the same day, it fired
Hamilton, the leading proponent of the Union and the alleged discriminatee herein.
On June 3, the Board denied the Respondent's request for review. Thereafter, on
July 24 the Union won the election and was certified as the collective-bargaining
representative of Respondent's busdrivers on December 2.
B. Interference, restraint, and coercion
Respondent President Harry L. Swain learned about the union organizing cam-
paign in November or December 1962, shortly after its inception. Thereupon, he
and his brother, Ernest Swain, the Respondent's chief mechanic and its alleged super-
visor and agent,4 engaged in conduct which the complaint charges as interference,
restraint, and coercion of employees in the exercise of rights guaranteed by the
Act. The record in respect to these incidents was as follows:
1. Incidents involving Harry L. Swain
(a) In December 1962, Harry L. Swain called Moss into the office and admittedly
asked him whether he was one of the employees who was organizing for the Union.
Moss conceded that he was. According to Moss' credited testimony, Swain then
replied, "I'll tell you right now, I'm not going to have a union in this place and .
that . five men went out of here at one time when they tried to organize before."
Regarding the foregoing, Swain denied only that he told Moss that five men had been
fired for attempting to organize, and he testified that since no such discharges had
occurred, he "would not have told him [Moss] that." However, Swain previously
had testified as a Rule 43(b) witness for the General Counsel that he "didn't remem-
ber all that was said" in this conversation with Moss. Accordingly, and because
I regard Moss as the more reliable witness of the two, Swain's limited denial is not
credited.5
2 All dates hereafter refer to 1963 unless otherwise specifically noted
'Case No. 9-RC-5302
4 The issue of Ernest Swain's alleged supervisory status will be considered infra.
Swain was not a frank and forthright witness. His responses to questions pro-
pounded by the General Counsel were frequently evasive, reluctant, and equivocal, and
on several occasions It was necessary to confront him with his pretrial affidavit to the
Board before he would admit facts which the General Counsel sought to elicit from him.
In addition, his memory of past events and statements admittedly was poor
BLUE MOTOR COACH COMPANY 1487
(b) About 2 weeks later, on a Sunday in late December 1962, or early in January
1963, President Swain called a meeting of all the drivers which was held in a
vacant bus in the Company's garage. The purpose of the meeting, according to
Swain, was find out why the men wanted a union to represent them. By his own
admissions , elicited only after repeated confrontation with his pretrial affidavit to
the Board, Swain told the men that they did not need a union , that if they had com-
plaints they could come to him as he was there every day, that he had experience
with unions before and knew what to do about them , that there would be no reprisals
"as of now," and that "if they wanted a union why not have their own . . . and
keep their money, their dues, in their own organization ." According to the credited
testimony of the drivers who attended, Swain also said that he knew some of the
men had signed union cards, that if they continued with their union campaign there
would be "two strikes" against them, and that he did not intend to have a union
there, and especially not the Teamsters Union.
(c) In May or June, President Swain had the following conversation with busdriver
Vernon Warren at Respondent 's premises.
Swain : What have you got against me?
Warren: Nothing.
Swain: What are you trying to do to me?
Warren: Nothing. What do you mean?
Swain: You know what I mean.
Warren: About the Union?
Swain: Yes.
Warren: Well Mr. Swain, I signed a card, that [sic] I don't deny it, and if you
want to fire me, why you go and fire me because I'm not going to lie about it.
(d) On July 19, the Friday preceding the Board election, President Swain told
driver James K. Jones that he had "done a lot of favors" for Jones and wanted "a
big favor" of him. Jones asked Swain what "favor" he wanted, and Swain replied,
"I want you to vote against that damn union , Wednesday ." Swain also told
Jones on this occasion that "he could not afford to pay union scale and that the in-
surance rates were so high and that the upkeep on the equipment was costing him
so much money." 6
2. Incident involving Ernest Swain
A number of witnesses for the General Counsel testified regarding conversations
they had with Ernest Swain , about the Union and its organizational campaign. Since
Ernest Swain was not called by Respondent as a witness , and the testimony of the
General Counsel 's witnesses in this regard was not otherwise impeached, it stands
uncontroverted on the record.
(a) Vernon Warren , a busdriver, testified that Ernest Swain rode home in Warren's
bus every night and talked about the Union and its campaign "real often." Without
specifying the dates on which these conversations occurred, Warren testified: that
Ernest Swain told him that Harry Swain knew who had signed union authorization
cards and the "rotation" order in which they had been signed; and that Hamilton
was fired because "he was nothing but a smart aleck," and that "there are three
more up to go that's in this Union."
(b) Elmer Alek Davis, a mechanic who formerly had worked under the immediate
supervision of Ernest Swain , testified that he and Ernest had a number of conversa-
tions regarding the Union, starting from about December 1962 until Davis was
discharged in May 1963.
In March or April 1963, Swain told Davis that "the Union would never come in
there . that Harry [Swain] could . more or less go along with [his] other
outside interests and would not need to let the Union in . . . that the place wasn't
making too much money anyhow and he [Harry Swain] could close the doors and
retire on the amount of money he had .
Early in April 1963, in the presence of Davis and another employee, Ernest Swain
told Red Brown, a former busdriver who was ,seeking reemployment, to come back
and reapply "because there was a possibility before the Union campaign was over
someone would be discharged or let go." In still another conversation , identified
as having occurred in March or April 1963, or around that time, Ernest Swain told
Davis "that he believed that Hamilton was a stooge for the Union that had been
placed in there by the Union to start with and that he didn't think he'd [Hamilton]
be around very long."
"In respect to Jones' testimony quoted above , Swain denied only that he used the word
"damn" in referring to the Union.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the subject of discharging employees, Ernest Swain told Davis that "there were
numerous ways in which a man could be let go, for smoking on the bus or for an
accident or for a number of other things .
On several occasions, Ernest Swain asked Davis whether he "had been approached
by the Union" and who had done so. After Ernest indicated to Davis that he
knew Hamilton was a "ringleader," Davis told Swain that it was Hamilton who "had
approached" him on behalf of the Union.
(c) In the spring of 1963, busdriver William Edward Montgomery had a con-
versation with Ernest Swain about the Union. Montgomery, who had heard that
Swain was telling Respondent's employees that Montgomery had attended a union
meeting, told Swain "to keep his nose out of my [Montgomery's] business," that "it
was none of his [Swain's] business where I [Montgomery] went," and that "for his
information," Montgomery had attended "a church meeting." Ernest Swain replied
"that if my [Montgomery's] nose was clean . there won't be nothing [sic] of it."
(d) In April 1963, Ernest Swain asked busdriver James K. Jones, "Did you attend
that big [union] meeting last night?" Jones asked, "What meeting?" Swain replied,
"You know what meeting I mean." Jones, who knew there had been no union
meeting the night before, then said, "If they had a meeting they evidently didn't
trust me because I wasn't invited to any meeting."
3. Ernest Swain's supervisory status
The Respondent denies that Ernest Swain is a supervisor or its agent within the
meaning of the Act, and therefore disclaims responsibility for Ernest's statements to
the employees. President Harry Swain testified that he is the only supervisor of
Respondent's employees. The record in respect to Ernest Swain's status in Respond-
ent's business is as follows:
As noted above, at the times material herein, Respondent employed 20 busdrivers
and 4 employees to perform maintenance and repair work on the buses. In addi-
tion, Respondent employs Ray Whitaker, who is secretary-treasurer of the Com-
pany, but "actually . . . keeps books." According to President Swain, his brother
Ernest is the chief mechanic who maintains and repairs the buses. Ernest has one
helper who assists him with the repair work, and there are two other employees in
the garage who clean and lubricate the buses, change the oil, repair tires, and per-
form other minor repairs. President Swain admitted that Ernest has authority to
assign work to the employees in the garage, and to change their work assignments,
without consultation with him, and that Ernest is responsible for keeping the buses
in good operating condition. In addition, President Swain also conceded that in
respect to the busdrivers, Ernest has authority to designate which bus the drivers
should operate when their regular buses break down, and that, in his absence,?
Ernest also has authority to instruct drivers who are running behind schedule, either
to "lay over" or to "pick up their next run." President Swain also testified that when
he is absent, Whitaker is responsible for his job,8 but a number of Respondent's
drivers, whose testimony is credited, testified that on such occasions, Whitaker took
care of the office, but Ernest was "in charge" of the garage.
On the foregoing record, it is clear and I find that Ernest Swain was and
is vested with authority responsibly to direct employees and to assign and change
work assignments in a nonroutine manner involving the exercise of independent
judgment, and therefore is a supervisor of Respondent within the meaning of Section
2 (11) of the Act .9
Respondent disclaims responsibility for Ernest Swain's statements to and interroga-
tion of employees on the additional ground that Ernest was never requested nor
authorized to engage therein, and that he did so on his own volition. In this regard,
the record discloses, indeed President Swain admitted, that he received frequent
reports from his brother Ernest regarding "what he [Ernest] had heard" about the
Union's organizational campaign and who had signed union cards. Under the cir-
cumstances, the inference is inescapable that President Swain must have known that
his brother was discussing the Union's campaign with Respondent's employees. In
view of Ernest Swain's supervisory status found above, the close relationship between
Ernest and Respondent's president, the failure of Respondent to notify its employees
4 President Swain does not generally get to his office until about 10 a m., long after the
drivers have commenced their early morning runs at 5:30 a.m. In addition, President
Swain takes a vacation of 3 to 4 weeks each year.
There is no testimony in the record as to when Whitaker reports for work each day.
e Cf. International Association of Machinists, Tool and Die Makers Lodge No. 35
(Serrick Corp ) v N L.R B , 311 U.S 72, 79-81 ; Taylor Manufacturing Company, In-
corporated, 83 NLRB 142, 156-157.
BLUE MOTOR, COACH,COMPANY 1489
that Ernest was not authorized to convey, company policy, and since Ernest's state-
ments were in apparent accord with Respondent's previously expressed opposition to
the Union, Respondent's employees could only believe that Ernest's statements and
interrogation were authorized by Respondent and accurately reflected its policy.
Accordingly, I am impelled to the conclusion that Ernest Swain's statements to and
interrogation of employees are imputable,to Respondent on the additional ground
that Respondent clothed him with apparent agency to engage in said. conduct.
4. Conclusions in respect to interference, restraint, and coercion
Quite clearly, President Swain's interrogation of Elzy Franklin Moss in Decem-
ber 1962, coupled with his statement that he would not have a union, and that on
prior occasions employees had been discharged for attempting to organize, constitute
interference, restraint, and coercion of employees in the exercise of rights guaranteed
by the Act. Accordingly, the Trial Examiner finds that by the foregoing conduct,
Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
In respect to the meeting with the busdrivers in December 1962, the Trial Examiner
also regards the following statements of President Swain as interference, restraint, or
coercion of employees: (a) the threat that if they continued with their union cam-
paign, there would be "two strikes" against them; (b) the implied threat of later
reprisals by the statement that there would be no reprisals "as of now"; (c) the im-
plication of reprisals suggested by Swain's statement that he had had experience
with unions and knew what to do about them; (d) his statement that he did not in-
tend to have a union there, and especially not the Teamsters Union; (e) his statement
that if the employees wanted a union, they should have one of their own and save
their money; and (f) his statement that he knew some of them had signed union
cards, which suggested to the employees that their organizational efforts were being
subjected to surveillance. Conversely, the Trial Examiner regards President Swain's
following statements to the employees as noncoercive free speech protected by
Section 8(c) of the Act: (a) they did not need a union, and (b) if they had com-
plaints, they could come to him.
In the context of the threats to the employees in President Swain's speech, the
Trial Examiner also regards the May or June 1963 conversation between Vernon
Warren and President Swain, quoted above, as coercive interrogation on the part
of Respondent in further violation of Section 8(a)(1) of the Act.
The Trial Examiner further finds that in the light of the reference to past favors
"done" for Jones, President Swain's request that Jones do him "a big favor" by
voting against "the damn union," implied that the continuance of favors depended
on Jones' vote against the Union. Accordingly, the said request is regarded as un-
lawful interference with employees' rights guaranteed by the Act.
In respect to Ernest Swain's conversations with employees regarding the Union,
the Trial Examiner regards the following as interference, restraint, or coercion of
employees in violation of Section 8(a)(1) of the Act: (a) Ernest's statement-to
Vernon Warren that President Swain knew who had signed union cards and the order
in which they were signed, which clearly created the impression that the union
activities of Respondent's employees were under surveillance; (b) his further state-
ment to Warren that additional employees who were in the Union were scheduled
for discharge; (c) his statement to Elmer Alek Davis that President Swain would
go out of business rather than deal with the Union; (d) his statement to driver
applicant Brown, •in the presence of Davis and another employee, that Brown
reapply later because of the "possibility" that "someone would be discharged be-
fore the Union campaign was over"; (e) his statement to Davis suggesting that pre-
texts were always available for discharging an employee who engaged in union
activity; (f) his statement to Davis that Hamilton was a "stooge for the Union" and
would not "be around very long"; (g) his interrogation of Davis as to whether he had
been approached by the Union, and as to who had done so; (h) his statement to
Davis that he knew Hamilton was a "ringleader"; (i) his statement to Montgomery,
that if Montgomery's "nose was clean," that is, if Montgomery had not attended
a union meeting, nothing would come of it, which obviously implied the converse
if Montgomery had attended; and (j) his interrogation of Jones as to whether the
latter had attended a union meeting.
C. The discriminatory discharge of William H. Hamilton
Hamilton was hired by Respondent to work as a busdriver in May 1962. He
worked as a relief driver until March 1963, when he was assigned to the more de-
75 6-2 3 6-6 5-v of 14 7-9 5
0
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sirable position of regular route driver. On May 24, Hamilton was suddenly fired
by Respondent in the middle of his working day, and a newly hired driver took over
his afternoon runs without interruption of the regular schedules. The complaint
alleges that Hamilton's dismissal was motivated by his activity on behalf of the
Union, and therefore constitutes a violation of Section 8 (a) (3) and (1) of the Act.
The Respondent asserts that Hamilton was discharged for causes unrelated to his
union activity.
As found above, Hamilton was one of the two drivers of Respondent who enlisted
the interest of the Union in organizing Respondent's busdrivers. Of the 13 or 14
union authorization cards which were signed by Respondent's drivers, Hamilton
personally participated in soliciting and securing the execution of 10 of them. As
far back as December 1962, Respondent President Swain knew that Hamilton was
one of the principal organizers of Respondent's employees.ta On April 25, 1963,
Hamilton attended the Board hearing in the representation proceeding which the
Union had initiated to obtain certification as the collective-bargaining representative
of Respondent's busdrivers. As previously noted, on Friday, May 17, the Regional
Director issued his Decision and Direction of Election in which, inter alia, he over-
ruled the Respondent's contentions that it was not engaged in commerce, and that
the Union was not a labor organization. On the following' Tuesday, May 22, quite
,apparently just after Respondent received a copy of the said decision, Respondent
hired Pinkerton's National Detective Agency, Inc., to put an investigator on Hamil-
ton's bus and to Check him for "everything, anything which would be wrong."
Specifically, President Swain instructed Pinkerton to check on whether Hamilton was
stealing fares,ll although he admittedly had no reason to suspect Hamilton of dis-
honesty, for smoking on the bus, although as more fully described, infra, Respond-
ent permits its drivers to smoke and all of them do so, and for deviating from his
prescribed route, although, as appears hereinafter, Respondent' permits deviations
from route under some circumstances when its buses are behind schedule. On the
morning of May 24,12 upon receipt of a report by, telephone from Pinkerton's Manager
McFarland regarding the investigation of Hamilton, and without either waiting for
the receipt of the written report, or even asking to speak to the investigator for details
thereof, President Swain called Hamilton into his office, fired him, and assigned his
route, without interruption of schedule, to Robert Brown, who according to President
Swain's admission, just "happened to be present on the same day and at the same
time Hamilton was discharged." 13
As found above, Respondent was opposed to the representation of its employees
by the Union, and President Harry Swain earlier had told the employees that he had
experience with unions and knew what to do about them, and implicitly had threatened
later reprisals by his statement that there would be none "as of now." In addition,
President Swain had told Moss, one of the employees who was organizing for the
Union, that five employees had been discharged "when they tried to organize be-
fore." Moreover, a month before Hamilton was abruptly terminated, Respondent
10 At first Swain conceded only that, he knew that Moss was an organizer, but when
confronted with his contrary affidavit to the Board's agent , he reluctantly admitted that
he also knew about Hamilton's union organizational efforts. -
"President Swain at first denied that he had requested Pinkerton to check on whether
Hamilton was stealing money from the Company, and professed lack of knowledge regard-
ing the reason that the Pinkerton reports, under the heading of "Character of the Case,"
were entitled "Inv.[estigation of] Suspected Thefts." He later contradicted this testi-
mony by testifying that he told Pinkerton that he wanted Hamilton to be checked for
"everything, anything which would be wrong," including "whether he was stealing fares "
Pinkerton's Louisville manager, McFarland, testified that his notes, made at the time
Pinkerton was engaged to investigate Hamilton, show that President Swain had instructed
him to check Hamilton, inter ali,a, for fare irregularities, and that he made a journal
entry at that time, that the "Client desires our investigator to ride the buses designated
by the client [Hamilton's] to determine if fare irregularities are occurring, the amounts
involved, and the manner in which the irregularities are occurring." In the light of the
self-contradictions in Swain's testimony, and his frequent evasive and reluctant responses
to questions by the General Counsel [see footnote 5, above], the Trial Examiner regards
Swain's testimony as generally not worthy of much reliance.
12 This was the same day that Respondent requested the Board to review the Regional
Director's Decision and Direction of Election.
13 Apparently Brown is the same person whom Ernest Swain told in April to reapply for
work later "because there was a possibility before the union campaign was over someone
would be discharged or let go." Brown had been employed by Respondent several years
earlier, and had been discharged for reasons which do not appear in the record.
0
BLUE MOTOR COACH COMPANY 1491
Supervisor and Agent Ernest Swain had predicted, not only the "possibility" of dis-
charges "before the union campaign was over," but also that Hamilton, a "stooge for
the Union," would not "be around very long." In view of the foregoing, the timing
of the investigation of Hamilton immediately after notice of the Direction of Election,
the instruction to Pinkerton that Hamilton be checked for "everything," including
stealing fares of which he was not suspected, and other conduct which Respondent
permits and all its drivers engage in, the Trial Examiner finds that the record presents
a persuasive prima facie case that Hamilton's discharge was motivated by his lead..
ing role in espousing the Union, and to discourage Respondent's employees from
continuing in their membership in or adherence to the Union.
In view of the foregoing conclusion, consideration must now be directed to the
reasons asserted by Respondent for suddenly firing Hamilton. President Swain
testified that his summary decision to fire Hamilton was motivated by a description
in Pinkerton's oral investigation report of a near accident which had been averted
the previous day while Hamilton was driving his bus in the streets of Louisville.
Swain testified that he regarded this occurrence, which he characterized as "cut[ting]
a car off," as so serious as to require Hamilton's immediate dismissal without waiting
for Pinkerton's written reports of the investigation. 14
The written Pinkerton report in respect to this incident reads as follows:
As the driver turned the corner at Sixth and Liberty Streets, an automobile
was coming out of the parking lot across from the jail. Seeing that the driver
was taking a chance in getting into the stream of traffic, the bus driver ac-
celerated the bus to within inches of the automobile and then commented to
this investigator, "You can't let these drivers pull the bluff on you." Several
passengers on the bus, including the investigator, were obviously frightened.
No damage to property or injury to passengers resulted from this occurrence. Swain
admitted that none of the allegedly "frightened" passengers made any complaint
to Respondent regarding this event, and that he decided to fire Hamilton without
even asking to speak to Gordon D. Hinton, the investigator who witnessed the in-
cident, to obtain details thereof. Hinton, although a witness for Respondent, was
not questioned regarding this occurrence. Hamilton described this incident as hav-
ing occurred as follows:
As I was turning the corner there on Liberty off Sixth and this car came out
of the parking lot and as I had turned to where my vision was at the parking
lot entrance, why this car pulled out, was pulling out, and of course I hit the
brakes 'but there was no jar there but at that time he [the other driver] had
already backed into I would say within three feet of the car.
Hamilton conceded that the incident had frightened him, and that he had commented
at that time to no one in particular, "if he had come on out of there I would have
had to hit him, it couldn't have been avoided."
A number of Respondent's drivers testified without contradiction that near
accidents, or 'Sclose calls," are a daily experience in their jobs. They further testified
that the corner of Sixth and Liberty Streets, where this incident occurred, is a place
where they generally experience difficulty in making the required right turn because
of heavy traffic conditions, and because of the passenger pickup stops at Sixth
Street, before making the'turn, and at the next corner on Liberty Street, after the
turn had been negotiated. Both streets are one way. As described by the witnesses,
in order to negotiate the turn, the bus must cross about three lanes of traffic on
Liberty Street before the rear end of the bus clears the curb, and then must get
back to the right-hand lane in order to stop at the next corner, and at the same time,
care must be exercised concerning traffic that may move in to the right of the bus
while the driver is making the turn. According to these driver witnesses, accelera-
tion of the bus to get back to the right-hand lane is generally preferable and reduces
the likelihood of traffic intervening to the right of the bus and cutting off its neces-
sary return to the curb lane.
In view of this testimony of the busdrivers, Hamilton's acceleration of the bus,
as described in the report, quite obviously did not in itself disclose any reckless act
of driving. Moreover, it is quite apparent that since Hamilton's bus was on the
public highway, it had the right-of-way over the vehicle about to enter the street
from private property. It would thus appear that the fault, if any, in the near
mishap, was that of the driver of the vehicle leaving the parking lot, in not waiting
until traffic conditions were clear for him to do so. In addition, with the busdriver
14 These were received by Respondent a day or two later and are in evidence as General
Counsel's Exhibits Nos. 3 (a), (b), and (c).
1492 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
involved as he was in negotiating the turn and watching for possible intervening
traffic to the right, and his reasonable assumption that the right-of-way would not be
impeded by cars emerging from private property on his left, blame for the near
accident cannot reasonably be placed on the busdriver for a near accident resulting
from violation of the right-of-way by others. Under the circumstances, 1 can find
no reasonable basis for any objective person to decide on the basis of the Pinkerton
report, and without more, that Hamilton was a reckless driver who must be sum-
marily discharged to avoid the involvement of Respondent in future accidents. In the
past, Respondent had condoned and tolerated speeding on the part of its driver
without discipline, notwithstanding that President Swain regards speeding as akin
to reckless driving. Under all the circumstances, and especially in view of the
failure of President Swain to ask the investigator for details of the incident before
he acted, the Trial Examiner is persuaded that this occurrence was merely a con-
venient excuse used by Respondent to get rid of Hamilton, but was not the true
motivation therefor.
The absence of any credible reason for investigating Hamilton when it did, and
the nature of the investigation which was requested, furnish additional support for
the Trial Examiner's conclusion that the decision to discharge Hamilton had already
been made before the investigation was ordered, that the purpose of the investiga-
tion was to find some plausible excuse for doing so, and that the assignment of the
near accident as the reason for Hamilton's discharge is merely a pretext to conceal
the true motivation therefor.
In regard to the reason for investigating Hamilton, President Swain testified that
he did not regularly employ detective agencies to check on the drivers, but did
so only when "I get too many complaints." The last time he had investigated any
driver was several years ago. According to Swain, Hamilton was investigated be-
cause on Monday or Tuesday, May 20 or 21, two complaints had been received
from passengers regarding alleged reckless driving by Hamilton. Swain offered no
testimony regarding the specific manner in which Hamilton was supposed to have
driven recklessly, and although asked, he was unable to state who made the com-
plaints. Thus, Swain's testimony regarding such alleged complaints stands un-
corroborated. Swain admitted that "a lot" of complaints about Hamilton had been
made during the period when the latter was a relief driver. However, not only did
Respondent not have him investigated then, but despite such complaints, it had as-
signed Hamilton to the obviously more desirable position of regular route driver.
After that "promotion," even assuming the veracity of Swain's testimony, Respond-
ent received only three complaints about Hamilton, and thus, had less reason to in-
vestigate shim when it did, than prior thereto.
Moreover, the record discloses no credible reason why Hamilton was singled out
for investigation In this regard, President Swain admitted that complaints are
received by Respondent about all of its drivers, and that no record is kept of the
number of such complaints in respect to any driver. Nevertheless, Swain testified
that he "believed" more complaints were received about Hamilton than any other
driver.15 Then, when confronted with his pretrial affidavit to the Board in which
,he stated, "It's hard to say whether I had more or less [complaints about Hamilton
than any other driver," Swain testified that he `scould have been wrong. in that
affidavit." Eventually Swain reluctantly conceded that he "supposed the affidavit
would be absolutely correct." Swain also admitted that he had "no idea at all"
regarding how many complaints he had received about Hamilton.
Thus, Swain's affidavit discloses that although Respondent may have received as
many or more complaints about some of its other drivers, none but Hamilton was
investigated in the past few years. In addition, Hamilton credibly testified that after
assignment to a regular route 3 months before his discharge, he was never advised
of any complaints, although as a relief driver he had been queried about passenger
complaints 15 or 20 times. All of the foregoing compels the conclusion that no
credence whatsoever can be placed in the reasons asserted by President Swain for
investigating Hamilton when he did. And, in the absence of a credible reason for
investigating Hamilton immediately after receipt of notice of the Direction of Elec-
tion, Swain's request to Pinkerton that Hamilton be investigated for "everything,
anything that would be wrong," including matters concerning which Hamilton was
not suspected and/or which Respondent permitted, compels the conclusion that the
investigation of Hamilton was ordered to provide Respondent with an excuse for
getting rid of him.
1s Ina letter sent to the Regional Director in response to the charge in this case, Swain
said, without any such equivocation , that one of the reasons for Hamilton 's dismissal
was that Respondent received more complaints about him than about any other driver.
BLUE MOTOR COACH COMPANY 1493
The same conclusion is also required by the many quite apparently pretextual
additional reasons asserted by Respondent for Hamilton 's abrupt dismissal . Presi-
dent Swain testified at the hearing that of the matters reported to him by the
Pinkerton investigation , only the near accident previously described and considered
was regarded by him as sufficiently serious to warrant Hamilton's discharge. How-
ever, contrary to that testimony , in the letter to the Regional Director sent in re-
sponse to the charge herein , Respondent ascribed its action to a number of addi-
tional reasons which will now be considered.
(a) Respondent 's letter charged that Hamilton was discharged , inter alia, because
his accident record was "bad . in fact worse than that of any other driver in
the last twelve months." Hamilton credibly testified that he had only one "charge-
able" accident i6 during his entire period of employment by Respondent , and that
occurred in October 1962, 7 months before his discharge . A number of Respond-
ent's drivers , still working for it, testified without contradiction that they had been
involved in "chargeable" accidents , and one, Warren, testified that he had two such
within the past 6 or 7 months . Accidents involving Respondent 's drivers are not
uncommon , indeed , one of the subjects Swain spoke about in his December 1962
meeting with the drivers was "the high rate of accidents we had and how much
money . we were paying out for insurance claims." In view of the time which
elapsed after Hamilton's only chargeable accident , and the failure of Respondent to
show, if indeed it could, that Hamilton 's accident record was poorer than other
drivers still employed, it is quite apparent that no credence can be placed on Re-
spondent 's assertion that it discharged Hamilton because of his allegedly "bad" acci-
dent record.i7
(b) Another reason assigned by Swain for Hamilton 's dismissal was stated in
Swain's letter to the Regional Director as follows:
In April of 1963, Hamilton deviated from his regular route on Preston Street
in Louisville and instead drove into town by way of the North -South Express-
way where he passed up many regular passengers of the Company.
The Company has a strict rule about following the designated route for it
operates under a franchise which permits it to travel only certain streets and
to pick up passengers at only certain points. When a driver fails to follow the
designated franchise route, he subjects the Company to problems concerning
its franchise as well as the reactions of angry customers who know the route
and are waiting for the bus
President Swain testified that he had only one complaint about deviation by Hamilton
from the prescribed route. According to the letter, this occurred about a month be-
fore his discharge , but Swain conceded that he was not certain of the date. The
complaint, according to Swain , came from one prospective passenger whose name
Swain was unable to furnish , and the complainant had not specifically identified
Hamilton as the transgressing busdriver . Swain also testified that he questioned
Hamilton about the alleged deviation from route i8 and the latter had denied that he
had done so . Thus, even assuming that Hamilton was the driver who had so devi-
ated, Swain 's letter to the Regional Director regarding bypassing a single passenger
was magnified and exaggerated by Respondent to a charge that Hamilton "passed
up many regular passengers " Moreover , contrary to Swain 's letter regarding the
Company's "strict rule" about following prescribed routes, and the possibility of
"franchise problems" and "angry customers" if the regular route is not followed,
Swain admitted on cross-examination that he permits Respondent 's drivers to use
the North-South Expressway going into town , "if they 're running late and . . . no
passengers . want to get off on Jackson . . . In addition , according to the
uncontradicted testimony of several of Respondent 's. drivers , using the North-South
Expressway on the inbound bus trips is a common practice of many of the drivers.
From the foregoing , it is quite evident that the Respondent has no strict rule pro-
hibiting all deviation from regular routes , and that it is not so concerned with the
possibility of "franchise problems" or irate customers to the extent that it prohibits
all deviations from routes . In view of the attempted magnification and exaggera-
16 Whether an accident is chargeable or not is determined solely by Swain ' s judgment
on whether the mishap is the result of "fault " on the part of the driver If an accident
is chargeable , the driver loses his "safety " bonus of $ 10 per month until the cost to the
Respondent , up to a maximum of $500 , is "paid off "
'7 f3eiser Aviation Corpoiet-ion ; 135 NLRB 399, 407
is As previously noted , Hamilton credibly testified that no passenger complaints were
called to his attention after his assignment to a regular route Thus, it would appear that
this incident must have occurred at least 3 months before Hamilton ' s discharge
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the single 'passenger complaint of alleged deviation from route by Hamilton,
the time that elapsed after such complaint before Hamilton' s dismissal , the absence
of any "strict rule" prohibiting the complained of deviation, and the common prac-
tice of the drivers, permitted by Respondent, of using the North-South Expressway
into town when running late, it is obvious that the Respondent's assertion of this
reason for Hamilton's termination is just another pretext.
(c) Another reason for Hamilton's discharge set forth in Swain's letter to the
Regional Director was: "On May 23 and 24, 1963, he violated the Company's rule
by smoking cigarettes on the bus, which is also in violation of Section 1305.10 of
the Louisville General Ordinances, and the 'no smoking' sign was posted on the bus
at all times." In this respect Swain testified that smoking on the bus "is against the
rules" but that he "didn't take that into consideration too much" when he decided
to discharge Hamilton. However, according to the uncontroverted testimony of sev-
eral of Respondent's drivers, all of them smoke, and driver Montgomery testified
without denial that he received Swain's permission to do so. Thus, since smoking
by its drivers was permitted by Respondent, Swain's request that Pinkerton inves-
tigate whether he was doing so, and the consideration thereof to any extent in con-
nection with Hamilton's discharge, clearly discloses the predisposition of the Re-
spondent to find an excuse for firing Hamilton before it caused him to be investigated.
(d) Another reason assigned by Respondent for discharging Hamilton was that he
"carried on extensive conversation with passengers on the bus in violation of the
company rule." The record shows, however, that all of Respondent's drivers talk to
passengers, that Swain was aware of the propensity of passengers to converse with
the drivers and vice versa, especially on a suburban busline such as that here in-
volved, and admittedly, "wouldn't fire a driver for talking to his passengers." Under
the circumstances, it is quite apparent that Hamilton was not discharged because he
talked to passengers.
(e) Still another reason asserted by Respondent for Hamilton's peremptory dis-
missal was that he argued with passengers, especially women. As explicated in his
letter to the Regional Director, in March 1963, "Hamilton picked up a lady passen-
ger . . . engaged in a controversy with this lady and she was told by Hamilton
never to ride his bus again." According to Hamilton's uncontroverted testimony,
this incident occurred in January or February 1963, while he was still a relief driver
The woman in question was his only passenger on a trip into town. Hamilton asked
her, apparently for the purpose of determining whether to use the expressway,
whether she was getting off on Jackson Street or going into town. The woman re-
plied, "Keep your damn nose out of my business and drive your route " When she
alighted in town, the woman repeated, "If you damn Camp Taylor busdrivers keep
your nose out of other people's business, you can make time and drive your route."
Hamilton replied that if she did not like his services, there were two buses behind
him. Hamilton further testified without contradiction that he was queried by Swain
regarding this incident after the woman had complained and reported the above to
Swain. The latter then told Hamilton, "She must have been a damn nut because she
talked to me for an hour." No testimony was offered by Respondent regarding any
further complaints about Hamilton's alleged tendency to argue with passengers,
"especially with women " The magnification of this single complaint by a woman
who was "a nut" into a propensity on the part of Hamilton to argue with women
passengers, and the time which elapsed thereafter before Hamilton was terminated,
persuade the Trial Examiner that this asserted reason is merely an afterthought and
another pretextual attempt to justify Hamilton's dismissal.
(f) Still another reason for Hamilton's termination asserted in Respondent's letter,
was that he permitted a woman passenger to enter his bus and ride without paying
fare No testimony was adduced by Respondent regarding this occurrence and quite
evidently the reliance thereon in the letter was based on the investigation report of
the Pinkerton agent. However, since Swain conceded at the hearing that other than
the incident of alleged reckless driving described in the Pinkerton report nothing
else therein warranted Hamilton's dismissal, it is quite evident that this alleged
ground is another afterthought of the Respondent in its effort to supplement and
lend weight to the other pretextual reasons asserted for its action
The foregoing is not by any means all of the reasons asserted by the Respondent
for Hamilton's termination. At the hearing, for example, President Swain testified
that Hamilton was also discharged because he was a "very poor driver," and because
lie was prone to "fast driving." The conclusion that Hamilton was a "poor driver"
was not supported by any testimony regarding the specific nature thereof, except
what already has been considered and rejected above. Since Hamilton was retained
as a busdriver for a year and assigned a regular route despite his alleged poor driving,
this reason for Hamilton's discharge is not credited. No testimony was adduced
BLUE MOTOR COACH COMPANY 1495
regarding any "fast driving" by Hamilton, or even of any complaints thereof. More-
over, the record shows that the Respondent, with knowledge thereof, has retained in
its employ busdrivers who received speeding citations from the police. Accordingly,
this reason for Hamilton's termination is also not believed. In view of the con-
clusions already reached, no point would be served by a recital of the remaining
reasons asserted by Respondent for Hamilton's dismissal. All of them have been
considered by the Trial Examiner and rejected as without merit.
In the light of the following considerations: (a) the timing of the investigation
of Hamilton immediately after Respondent's receipt of notice that a Board-conducted
election had been ordered to determine whether a majority of its employees desired
representation by the Union; (b) Respondent's knowledge of Hamilton's leading part
in organizing its employees on behalf of the Union; (c) Respondent's admitted
hostility to the Union; (d) Swain's statement to the drivers that he had had ex-
perience with union organizational campaigns and knew how to deal with them; (e)
Swain's threat that there might be reprisals later which was implicit in his statement
that there would be none "as of now"; (f) Supervisor Ernest Swain's statement to
Davis in April that Hamilton was "a stooge for the Union," and his prediction that
"he didn't think he'd [Hamilton would] be around very long"; (g) Supervisor Ernest
Swain's statement to Davis that pretexts could always be found for discharging an em-
ployee; (h) the absence of any credible reason for Respondent to investigate Hamilton
when it did; (i) the nature of the investigation which was ordered, including stealing
fares, of which Hamilton was not suspected, and smoking in the bus and deviations
from route, which Respondent permitted; and (j) the many pretextual reasons as-
serted for Hamilton's dismissal; the Trial Examiner concludes that Respondent had
decided to discharge Hamilton even before it ordered the Pinkerton investigation, and
that his summary dismissal was motivated by his leading role in advocating the
Union, to discourage membership therein and support therefor in the pending
election. Accordingly, the Trial Examiner further concludes that thereby Respond-
ent engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against William H. Hamilton
by terminating his employment and failing and refusing thereafter to reinstate him,
the Trial Examiner will recommend that the Respondent be ordered to offer 'him
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by reason of the discrimination
against him, by the payment to him of a sum of money equal to the amount which
he normally would have earned as wages from May 24; 1963, to the date of the
offer of reinstatement, less his net earnings during said period, with backpay com-
puted on a quarterly basis in the manner established by the Board.19
The Trial Examiner will also recommend that the Respondent make available to
the Board, upon request, payroll and all other records necessary to facilitate the
determination of the amounts due under this recommended remedy.
In view of the nature and extent of the unfair labor practices committed, and
because discriminatory layoffs and discharges go to the very heart of the Act,20
the commission of other unfair labor practices may be anticipated The Trial
Examiner will therefore recommend that the Respondent be ordered to cease and
desist from "in any other manner" infringing upon rights guaranteed to employees
by Section 7 of the Act, in addition to those rights found to have been violated herein.
19 F. W Woolworth Company, 90 NLRB 289. Backpay shall include the payment of
Interest at the rate of 6 percent per annum to be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716
20 N L R B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4).
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehouse & Helpers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a) (3)
and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Blue Motor Coach
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, and activities on behalf of, General Drivers,
Warehousemen and Helpers, Local Union No. 89, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or
any other labor organization of its employees, by discharging or refusing to rein-
state any employee, or in any other manner discriminating in regard to hire or
tenure of employment, or any term or condition of employment, except as permitted
by the proviso to Section 8(a) (3) of the Act.
(b) Threatening employees with loss of employment, economic sanctions, or other
reprisals to discourage union affiliation or adherence.
(c) Interrogating employees concerning union affiliation or activities in a manner
constituting interference, restraint, or coercion in violation of Section 8(a) (1)
of the Act.
(d) Making statements to employees which indicate or create the impression that
their participation in union activities is under surveillance.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to join or assist General Drivers, Ware-
housemen and Helpers, Local Union No. 89, affiliated with the International Broth-
erhood or Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from engaging
in such activities, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act.
2 Take the following affirmative action to effectuate the policies of the Act.
(a) Offer William H. Hamilton reinstatement to his former or substantially equiv-
alent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered as a result of the
discrimination against him in the manner provided 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, social security payment records, time-
cards, personnel records and reports, and all other records as set forth in the section
of this Decision entitled "The Remedy."
(c) Post at its terminal and garage in Louisville, Kentucky, copies of the attached
notice marked "Appendix A." 21 Copies of said notice, to be furnished by the Re-
gional Director for the Ninth Region, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
21 In the event that this Recommended Order be adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enfoi ced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
BLUE MOTOR COACH COMPANY 1497
(d) Notify the Regional Director for the Ninth Region , in writing, within 20 days
from the date of the receipt of this Decision and Recommended Order, what steps
it has taken to comply herewith 22
=^ In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply 'herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of , General
Drivers, Warehousemen and Helpers , Local Union No. 89, affiliated with the
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, or any other labor organization , by discharging or refusing to reinstate
any of our employees or in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employment , or any term or condi-
tion of employment , except as permitted by the proviso to Section 8(a)(3) of
the Act.
WE WILL NOT threaten our employees with loss of employment , economic
sanctions , or other reprisals to discourage their union affiliation or adherence.
WE WILL NOT coercively or unlawfully interrogate our employees regarding
union affiliation or activities.
WE WILL NOT make statements to our employees which will indicate or create
the impression that their participation in union activities is under surveillance.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist General Drivers, Warehousemen and Helpers, Local
Union No 89 , affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , and to refrain from any or all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act
WE WILL offer to William H. Hamilton immediate and full reinstatement to
his former or substantially equivalent position , without prejudice to any se-
niority or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of the discrimination against him.
All our employees are free to become or remain or to refrain from becoming or
remaining members of General Drivers, Warehousemen and Helpers , Local Union
No. 89 , affiliated with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , or any other labor organization.
BLUE MOTOR COACH COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Federal
Office Building , 550 Main Street, Cincinnati , Ohio, Telephone No. 381-2200, if
they have any question concerning this notice or compliance with its provisions.