Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1980

251 N.L.R.B. 1638 (N.L.R.B. 1980)

1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greyhound Lines, Inc. and Kenneth J. Benner. Case
18-CA-6395
September 8, 1980
DECISION AND ORDER
On June 4, 1980, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Greyhound
Lines, Inc., Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Member Penello, in finding a violation herein, does not rely on .4/lied
Aviation Service Company of New Jersey Inc., 248 NLRB 229 (1980), inso-
far as that case makes reference to Alleluia Cuvhion Co., Inc.. 221 NlRB
999 (1975).
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
a charge filed on September 14, 1979, by Kenneth J.
Benner, an individual, against Greyhound Lines, Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Direc-
tor for Region 18, issued a complaint dated October 12,
1979, alleging violations by Respondent of Section
8(a)(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, herein called the Act. Re-
spondent, by its answer, denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held before me in
Minneapolis, Minnesota, on March 13, 1980, at which the
General Counsel and Respondent were represented by
counsel and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce
evidence. Thereafter, the parties filed briefs which have
been duly considered.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, has an office and
place of business in Minneapolis, Minnesota, where it is
251 NLRB No. 167
engaged in the interstate and intrastate transportation of
passengers and freight. During the year ending Decem-
ber 31, 1978, a representative period, Respondent, in the
course and conduct of its business operations, derived
gross revenues in excess of $50,000 for the transportation
of passengers, freight, and commodities from the State of
Minnesota directly to points located outside that State. I
find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
1. LABOR ORGANIZATION
Amalgamated Council of Greyhound Local Unions.
Amalgamated Transit Union, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
On September 6, 1979, Respondent suspended its bus
driver employees, Kenneth J. Benner and Jerry W.
Jensen, for a period of 14 days, because those employees
had, on August 26 of that year, issued a certain press re-
lease. The General Counsel contends herein that, by
their activities in connection with the foregoing publica-
tion, Benner and Jensen "acted together and on behalf of
employees to inform other . . . employees of certain em-
ployment-related grievances and to solicit their support
in resolving said grievances." Thus, the General Counsel
urges, Benner and Jensen were suspended, in violation of
Section 8(a)(1) of the Act, because they engaged in con-
certed activities protected under Section 7 of the Act.
Respondent contends that the suspensions were lawful
because the press release: (a) was not a communication
concerning employee grievances, (b) contained mali-
ciously false statements, and (c) constituted a disparage-
rnent of Respondent's products and services.
B. Facts
The Union is the collective-bargaining representative
of Respondent's bus drivers and other employees in a na-
tionwide unit. The parties are signatories to a collective-
bargaining contract, covering that unit, effective from
November 1, 1977, until October 31, 1980. Benner, a
driver based in Minneapolis, Minnesota, is a member of
the executive board of the Union's Division 1150 and, in
that capacity, serves as representative of the 120 to 150
Minneapolis drivers.
Mid-July 1979, Benner met with three other drivers at
a rest stop in Mauston, Wisconsin. At that time, those in-
dividuals discussed the difficulties they faced in working
within their schedules as a result of the 55-mile-per-hour
speed limit mandated by law and by Respondent's own
policies. Thus, the drivers apparently believed that Re-
spondent had not adjusted adequately many of its sched-
ules in light of the operative speed limit. Also discussed
i The findings of fact contained herein are based upon a composite of
the testimonial and documentary evidence introduced at the hearing The
record is generally free of evidentiary conflict.
---
GREYHOUND LINES, INC. 1639
was a then-recent company announcement of three new
driver jobs which would require successful bidders to
work 7 days per week.2 In reaction, the drivers talked
about the possibility of a concerted strict adherence to
the 55-mile-per-hour speed limit during the then-upcom-
ing Labor Day weekend. Thereafter, Benner and em-
ployee Jensen pursued that idea in discussions with other
drivers. However, according to Benner, by late July, the
matter had been "forgotten."
On August 7, Benner saw a letter, written by Kansas
City, Missouri, driver Steve Vadasz, posted on the Min-
neapolis drivers' bulletin board. The letter stated, inter
alia, that Respondent's Salt Lake City, Utah, drivers, had
engaged in a 24-hour wildcat strike and that, thereafter,
some 30 of those drivers had received notices of dis-
charge from the Company. By telephone, Benner con-
firmed that information, speaking first to Vadasz and
then to Salt Lake City driver Veldon Lauder, one of the
wildcat strikers who had received a discharge notice.3
Benner then wrote a memorandum, concerning the
matter, to the Minneapolis drivers. In addition, according
to Benner's testimony, that occurrence created renewed
interest among the bus drivers in the plan of strict adher-
ence to the 55-mile-per-hour speed limit, during the
Labor Day weekend, "as a means of establishing unity in
support for these 30 some drivers in Salt Lake." Thereaf-
ter, Benner personally spoke to more than 125 drivers,
who were based at various facilities of Respondent,
about the plan. Jensen spoke directly with some 175
drivers. Also, the opinions of other drivers were re-
ceived indirectly. Having concluded that the contacted
drivers overwhelmingly supported the proposed action,
Benner and Jensen decided to prepare a press release, in
interview format, as a means to "get the word out," to
Respondent's bus drivers, nationwide. On August 20 or
21, Benner prepared, through interview of Jensen, the
following press release:
Greyhound drivers nationwide will drive strictly
within the 55-mile-per-hour speed limit through the
Labor-Day weekend to save fuel and set an example
for other drivers.
Several members of State highway patrols have
commended the drivers for this effort.
It is well known that on rare occasions Grey-
hound drivers will slip over the 55 MPH limit to
accommodate their passengers after departure
delays, bus breakdowns, inclement weather and
other unexpected delays.
Veteran-driver and union steward, Jerry Jensen
said "over 350 drivers interviewed last week from
coast to coast unanimously supported the plan
which is expected to result in some connecting de-
parture delays.
2 That announcement was posted by Respondent in mid-June. Shortly
after July 4, the Company decided against implementation and, so, those
jobs were not awarded.
I At the hearing, the parties stipulated that, while on August 4, 1979,
some 40 Salt Lake City based drivers, including Lauder, received "no-
tices of intent to dismiss," only six of those drivers, not including Lauder,
were "ultimately" dismissed. In or after October, the six dismissal actions
were reduced to suspensions of I year or less.
Jensen declined to comment when asked if the
"slowdown" had anything to do with a recent at-
tempt to work regular-run drivers seven days a
week without overtime, the dismissal of 36 drivers
three weeks ago in Salt Lake City who were pro-
testing alleged contract violations, or with Grey-
hounds numerous runs that are impossible to oper-
ate within the 55-MPH speed limit.
On August 25, Benner saw a second letter from
Vadasz, posted on the employee bulletin board in Minne-
apolis, stating, inter alia, that 36 Salt Lake City drivers
had been "dismissed to this point." On the next day,
Benner again contacted Lauder, seeking confirmation,
and was informed that the number of dismissed drivers
had risen to 43. That day, August 26, Benner distributed
the press release to the broadcast and print media and
the story was aired and carried. He also mailed copies to
each of the Union's local divisions representing Respond-
ent's drivers.
At the instant hearing, Benner testified that the press
release was not intended to influence Respondent's pas-
sengers, only its drivers. Thus, he asserted, its issuance
"was the only method we could think of to get to people
that we hadn't already spoken to about holding to 55
over the holiday," particularly as, according to Benner,
"there are some local [union] presidents who are adverse
to the dissemination of any information .... " He de-
scribed the fifth paragraph of the release as "fluff," in-
serted to attract the attention of the media and induce it
to carry the story. With respect to the factual allegations
contained in the release, Benner testified that the asser-
tion concerning the 36 discharges in Salt Lake City was
based upon the Vadasz letters, the subsequent telephone
conversations with Lauder, and, finally, his "numerous
other conversations with people familiar with the situa-
tion, including my own union president." As to the claim
that Greyhound has "numerous runs that are impossible
to operate within the 55-MPH speed limit," Benner testi-
fied that he was personally aware of at least 10 or 15
such "runs" and Jensen generally confirmed that asser-
tion.4 Benner conceded that, as noted supra, Respondent
had earlier withdrawn its posting of the 7-day-per-week
jobs.
In late August, Respondent's district manager, Louis
Hodnik, separately interviewed Benner and Jensen con-
cerning their respective participations in the issuance of
the news release. On September 6, 1979, both employees
received written disciplinary notices and, concurrently,
were suspended for periods of 14 days. The notice to
Benner stated:
On the above date and time you were inter-
viewed with regard to news release which appeared
on the drivers' bulletin boards in Minneapolis,
Fargo and Duluth. The releases referred to the fol-
lowing: (1) 55 MPH speed limit, (2) Drivers' slow-
down because of 7 day work week, (3) Slowdown
of drivers due to 36 driver layoff in Salt Lake City,
(4) Greyhound's numerous runs that are impossible
4 The Respondent has not offered conflicting testimony.
GREYHOUND LINES,INC.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to operate with the 55 MPH speed limit. You stated
that you prepared these news releases and distribut-
ed them to the news media without consent of any
supervisor or management. You further stated that
operator Jerry Jensen was, in fact, the operator
who was interviewed by you. In a subsequent inter-
view with operator Jensen on 8-29-79 he confirmed
that he participated in this interview conducted by
you. These releases did appear in the newspaper
and were played on several radio stations.
For words or acts of hostility to the company, or
words or acts which result in damage to the Com-
pany's reputation, property or services and for di-
vulging affairs of the Company without approval
you are suspended for 14 calendar days. You are se-
verely reprimanded for failing to comply with rules
as set forth in your Drivers Rule Book. You are in-
structed to adhere to these rules. Finally, you are
cautioned that any future violation will result in
more severe discipline being issued, up to and in-
cluding discharge.
The Jensen notice was similarly worded.5
C. Conclusions
Despite Benner's testimony that the press release was
intended as a communication to Respondent's drivers,
and not to its passengers, the natural and foreseeable
consequence of its issuance was that it would serve as a
communication to the public and, thus, the preparation
and issuance of the document must be analyzed in that
light. I think that a fair reading of the press release re-
veals an advertisement by the employees, to the public,
that they, the employees, would concertedly adhere to
the legal speed limit in protest against Respondent's ac-
tions and policies detailed in the last paragraph of the re-
lease. That paragraph, referring to work schedules, con-
ditions of employment, and the discharge of employees,
is clearly and solely about employee grievances. It is
well established that employees may, with the Act's pro-
tection, make appeals to the public expositing their views
concerning a labor dispute with their employer. 6 This is
precisely what the employees, through their press re-
lease, did here.
Respondent has not met its burden of showing that the
press release contains either malicious falsehoods or a
disparagement of the quality of Respondent's products or
services, so as to deprive its authors of the protections
normally afforded under Section 7 of the Act.' The testi-
mony of Benner and Jensen, that the Company maintains
"numerous runs that are impossible to operate within the
55-MPH speed limit," as claimed in the release, stands,
on the state of this record, uncontradicted. Nor has Re-
spondent placed in contest the truthfulness of the press
release's assertion that it had made a then recent attempt
6 The Drivers Rule Book, referred to in the disciplinary notices, spe-
cifically provides that "the affairs of the Company are not to be di-
vulged" and that "words or acts hostile to the Company, or words or
acts which result in damage to the Company's reputation, property or
services, are cause for disciplinary action."
6 See Automobile Club of Michigan. et al., 231 NLRB 1179 (1977).
See United Parcel Service. Inc., 234 NLRB 223 (1978); Allied Aviation
Service Company of New Jersey. Inc., 248 NLRB 229 (1980).
to work certain drivers on a 7-day-per-week schedule.
While most of the Salt Lake City drivers who, in early
August, had received notices of intent to dismiss were,
"ultimately," not discharged, the claim in the press re-
lease, which was published on August 26 or 27, that 36
drivers had been dismissed "three weeks ago" can hardly
be viewed as a malicious falsehood. This is particularly
so in view of the diligent efforts of Benner to verify the
accuracy of that assertion through inquiries of people in
position to know the true facts. With respect to the
"product disparagement" argument, while I note that the
employees, in their news release, chose to term their
concerted adherence to the legal speed limit, as mandat-
ed by Respondent's own policies, as a "slowdown"
which might "result in some connecting departure
delays," I find nothing in the document which attacks
the quality of Respondent's products or services." What
was advertised, simply, was the intent of the employees
to engage in a concerted action, over the course of the
Labor Day weekend, to protest their employer's conduct
of labor relations. The suspensions of Benner and Jensen,
because they prepared and issued that advertisement,
were thus violative of Section 8(a)(1) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
CONCL USIONS OF LAW
1. Respondent Greyhound Lines, Inc., is an employer
engaged in commerce, and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Amalgamated Council of Greyhound Local Unions,
Amalgamated Transit Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By suspending Kenneth J. Benner and Jerry W.
Jensen, for a period of 14 days, commencing September
6, 1979, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
I Cf Jefferson Standard Broadcasting Company, 94 NLRB 1507 (1951),
enfd. sub nom. Local Union No. 1229, International Brotherhood of Electri-
cal Workers v. NL. RB., 346 U S 464 (1953).
GREYHOUND LINES, INC. 1641
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 9
The Respondent, Greyhound Lines, Inc., Minneapolis,
Minnesota, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Suspending employees because they engage in con-
certed activities for their mutual aid or protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act to
engage in concerted activities for their mutual aid and
protection, or to refrain from such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind the disciplinary notices issued to Kenneth
J. Benner and Jerry W. Jensen on September 6, 1979,
and expunge from their personnel files any reference
thereto.
(b) Make Kenneth J. Benner and Jerry W. Jensen
whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them, by
payment to each of them of a sum of money equal to
that which that employee normally would have earned
as wages, from the date of the discrimination to the date
of reinstatement, less net earnings during such period,
with backpay to be computed in the manner prescribed
in F W. Woolworth Company, 90 NLRB 289 (1950), with
interest as set forth in Florida Steel Corporation, 231
NLRB 651 (1977) (see, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962)).
(c) 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 re-
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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.
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facility located in Minneapolis, Minneso-
ta, copies of the attached notice marked "Appendix. " 10
Copies of said notice, on forms provided by the Regional
Director for Region 18, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
0o In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United Stales Court of Appeals Enforcing an
Order of the 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 suspend employees for engaging in
concerted activities for their mutual aid or protec-
tion.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL rescind the disciplinary notices issued
to Kenneth J. Benner and Jerry W. Jensen on Sep-
tember 6, 1979, and expunge from their personnel
files any reference thereto.
WE WILL make Kenneth J. Benner and Jerry W.
Jensen whole for any loss of earnings because of the
discrimination against them, plus interest.
GREYHOUND LINES, INC.
GREYHOUND LINES,NC.