M & M Charter Bus Lines

National Labor Relations Board - Board Decisions

Nov 6, 1968

173 N.L.R.B. 605 (N.L.R.B. 1968)

M & M CHARTER LINES,
M & M Charter Lines, Inc. d/b/a M & M Charter Bus
Lines and Chauffeurs, Sales Drivers & Helpers,
Local 572, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America
M & M Charter Lines , Inc. d/b/a M & M Charter Bus
Lines , and Chauffeurs , Sales Drivers & Helpers,
Local 572, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America, Petitioner . Cases 31-CA-640 and
31- RC-473.
November 6, 1968
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 10, 1968, Trial Examiner Stanley Gilbert
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom, and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed.
Finally, the Trial Examiner found that the Union's
objections to the election conducted in Case
31-RC-473 were meritorous, and recommended that
the election be set aside and a second election be
directed. Thereafter, the Charging Party filed excep-
tions to the Trial Examiner's Decision and a
supporting brief. Respondent filed cross-exceptions
and a brief in answer to the Charging Party's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-
exceptions, the briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions,'
and recommendations of the Trial Examiner, with the
reservations specified herein.
INC. 605
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Respondent, M & M Charter Lines, Inc.,
d/b/a M & M Charter Bus Lines, Los Angeles,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the election in Case
31-RC-473 conducted on March 17, 1967, be, and it
hereby is, set aside.
[Direction of Election3 omitted from publication.]
1 The Trial Examiner found that "extra" drivers were eligible to vote
if they averaged 10 hours or more of work per week during the 6 weeks
prior to February 11. Under the circumstances of this case (see, for
example, footnote 14 of the Trial Examiner' s Decision), we conclude
that this standard is reasonable ; but in so holding , it should be noted
that we are adopting a standard for this particular case and not a general
rule governing eligibility of part -time workers in all situations.
The Trial Examiner found that there were 70 employees in the unit
and that the Union obtained valid authorization cards from only 30
employees . The Union contends that five additional employees should
be found to have properly designated the Union. We find it unnecessary
to determine the validity of this contention since the Union would not
have a majority even if the cards of these employees were considered
valid designations of the Union. Similarly, since we are finding that the
Union did not have a valid majority, we need not determine whether, as
contended by Respondent , certain of the cards counted by the Trial
Examiner should have been found invalid.
2The Trial Examiner found numerous violations of Section 8(a)(1).
In the absence of exceptions thereto, we adopt such findings pro forma.
The Union filed exceptions to the Trial Examiner's failure to find
additional violations of Section 8(a)(1). Since these alleged violations
are simply cumulative and would not affect the Recommended Order
which we are adopting , we do not find it necessary to pass on these
exceptions.
3An election eligibility list , containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 31 within 7 days after the date of issuance of the
Notice of Second Election. The Regional Director shall make the list
available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.
Excelsior Underwear, Inc., 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner Based on a charge
filed by Chauffeurs , Sales Drivers & Helpers, Local 572,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, hereinafter referred to as the
Union, on March 14, 1967, as amended on April 27, 1967, the
complaint in Case 31-CA-640 was issued August 2, 1967.1 Said
1The complaint was amended in several respects during the course of
the hearing.
173 NLRB No. 96
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, as amended, alleges that M & M Charter Lines, Inc.,
d/b/a M & M Charter Bus Lines, hereinafter referred to as the
Company or Respondent, engaged in conduct violative of
Section 8(a)(l), (3), and (5) of the Act. Respondent by its
answer denies that it committed the unfair labor practices
alleged in the complaint. By order dated October 17, 1967,
Case 3l-RC-473 was consolidated with Case 31-CA-640
for a hearing on certain of the objections filed therein to
conduct affecting the results of the election. Pursuant to
notice a hearing was held in Los Angeles, California, on 19
dates between October 17 and November 16, 1967,2 both
inclusive, before me, duly designated as Trial Examiner. Briefs
were received from all of the parties within the time
designated therefor.
Upon the entire record3 in this proceeding and upon
observation of the witnesses as they testified, I make the
following-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The parties stipulated as follows:
That Respondent is a California corporation engaged in
the operation of a fleet of buses, and its gross volume of
business annually exceeds $250,000, and its purchases
directly from outside the State of California exceed
$50,000 annually; and then add to that stipulation that this
stipulation is only for the purpose of this hearing.4
During the course of the hearing, counsel for Respondent
stated on the record that, for the purpose of this hearing,
Respondent admits the allegations in paragraph 3 of the
complaint. Accordingly, it is found, as alleged in said
paragraph, "Respondent is now, and has been at all times
material herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act."
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent , the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. RESOLUTION OF THE ISSUES HEREIN
A. Background and Summary of Undisputed Facts
Respondent operates a fleet of buses in the Southern
California area from its place of business in Harbor City,
California. The Company furnishes, in the main, five types of
services which may be summarized as follows:
1. Regular school runs which continue through the entire
school year for the transportation of pupils to and from
various schools;
2. Charter runs which are ordered, usually on a one-time
basis, by groups or entities such as clubs, schools and various
organizations for trips to special events or sites. Included in
this type of service are runs chartered by the United States
Army to and from various military establishments;
3. Commuter runs which apparently are regularly
scheduled runs to provide transportation to the public between
various locations;
4. Fog runs which provide transportation to air line
passengers between airports serving the Los Angeles area when
one or the other airport is closed down by fog; and
5. Racetrack runs which are runs scheduled during the
racing seasons at various race tracks in Southern California and
Tijuana, Mexico, to transport the public from various points to
the tracks.
The operations of the Company are handled by two office
divisions, the school bus division and the charter division. The
office work of the school bus division is handled by Frank
Mannino and John Allen. Frank Mannino is the Company's
vice president, an admitted supervisor, and is in charge of the
school bus division. John Allen, who has the title of head
school bus driver, not only works in the office but also spends
part of his day driving a bus on a school route. This office
operates on a five-day basis during the school week and is
charged with the responsibility of operating only the regular
school runs.
The office work of the charter division, which is charged
with the responsibility of operating all the other runs, is
handled by John Simpson, Willard M. Gregory and Thomas
Nicolello. It appears that other people sporadically help out in
the operations of the charter office division. This office
operates 7 days a week, although on weekends, particularly
Sundays, the amount of work may be light and may not
require the presence of someone in the office for an extended
period of time, since a call service is utilized.
Both of the aforesaid offices are in one building which also
contains a contiguous waiting room for drivers. Dominic
Mannino, a brother of Frank Mannino, is president of the
Company and his office is in another building on the premises.
The drivers are divided into four categories: full-time school
bus dnvers, part-time school bus drivers, charter drivers and
extra drivers. An explanation with respect to these various
categories of drivers is set forth in more detail herembelow.
Sometime in January 1967, the Union initiated an attempt
to organize the Company's employees by soliciting authoriza-
tion cards. On February 3, 1967, the Union filed a
representation petition in Case 31-RC-473 in which it sought
an election for a unit described as follows:
All bus dnvers in all lines of service, part-time and full time,
in the employer's Southern California operations.
By a letter dated the same day, the Union requested the
Company to recognize and bargain with it claiming that it "has
been designated by a majority of your [the Company's]
employees to represent them for the purpose of collective
bargaining ..." On that date, however, the Union did not
represent a majority in the unit described in the aforesaid
petition. By letter dated February 7, 1967, the Company
informed the Union that Mrs. Edwin Selvin had full power and
authority to represent it. By letter dated February 8, 1967,
Selvm informed the Union that the Respondent was willing to
2October 17, 18, 19, 20, 23, 24, 25, 30, and 31; November 1, 2, 3,
6, 77 8, 9, 14, 15, and 16.
During the course of the hearing the Trial Examiner ruled that he
would receive , after the close of the hearing , additional exhibits from
the parties consisting of summaries of exhibits in the record.
Accordingly, it is hereby ordered that Resp . Exh. 29-A, 29-B, 29-C,
29-D, 29 -E, and 29-F be received in evidence . Likewise, C . P. Exh. 8, 9,
10, 11, 12, and 13 are received in evidence.
4It appears that the Company operates buses in both the Southern
California and the San Francisco Bay areas . Only its operations in the
Southern area are involved in this proceeding.
M & M CHARTER LINES, INC. 607
have an election. The Union continued to solicit authorization
cards from the driver-employees, and General Counsel and
Charging Party contend that, as of February 11, 1967, the
Union had obtained a sufficient number of authorization cards
to establish the Union's claim of majority representation.
Pursuant to the aforesaid petition filed on February 3,
1967, a stipulation for certification upon consent election was
executed by the parties and an election by secret ballot was
conducted on March 17, 1967, under the supervision of the
Board among employees of the employer in a unit agreed
appropriate. The said unit was described as all bus drivers,
including regular part-time drivers of the Company, and
excluding all other employees and all supervisors as defined in
the Act. According to the Report on Objections, a tally of
ballots "showed that of approximately 72 eligible voters, 65
cast ballots, of which 16 were for and 41 against the
Petitioner, with 8 challenged ballots." On March 24, 1967, the
Union filed timely objections to conduct affecting the results
of the election.
On March 10, 1967, the Company discharged driver Robert
Fogle. On April 7, 1967, the employment of driver Eleanor
Mayfield terminated and on or about April 11, 1967, the
employment of driver John Pottorff terminated.
B. The Issues
1. The unit and the employees therein,
(a) Description of Unit and "eligible voters." The first issue
is as to the appropriate description of the bargaining unit. This
issue involves the matter of determining the "eligible voters" as
of February 11, 1967.
(b) The "extra drivers." The first related issue is whether or
not the "extra drivers" as a class, or certain individuals among
them, should or should not be counted in determining the
number of employees in the unit who, as of February 11,
would have been considered as eligible voters, in order to
determine whether the Union did or did not represent a
majority of them as of said date.
(c) The employment status of four individuals. A second
related issue is whether four certain individual drivers were
employed as of February 11, 1967.
(d) The supervisory status of Allen and Nicolello. A third
related issue is whether Allen and Nicolello are or are not
supervisors, in order to determine whether they are to be
counted among the eligible voters in the bargaining units
2. The authorization cards. The chief issue relating to the
authorization cards is whether or not various of the
authorization cards may be properly counted toward establish-
mg the Union's claim of majority representation (as of
February 11, 1967) in order to determine whether the Union
possessed a sufficient number of valid authorization cards to
establish its said claim. There is also a related issue as to
whether Donald McGuire's possession of an honorable with-
drawal card from the Union is sufficient evidence to establish
that he authorized the Union to act as his bargaining
representative.
3. Union's claim of majority representation. Whether the
Union was designated as bargaining representative by a
majority of the "eligible voters" as of February 11, 1967.
4. Independent violations of Section 8(a)(1). There are a
considerable number of issues as to whether Respondent
violated Section 8(a)(1) of the Act by the following conduct
(a) Unlawful interrogation, threats of reprisal, and re-
stramt;
(b) The posting of antiunion propaganda in its offices; and
(c) Unlawful surveillance of a union meeting on March 14,
1967 6
5. The discharge of Robert Fogle. Whether Fogle was
discharged in violation of Section 8(a)(3) and (1) of the Act.
6. The termination of Eleanor Mayfield's employment.
Whether the circumstances leading up to the termination of
the employment of Eleanor Mayfield would support a finding
that Respondent engaged in conduct violative of Section
8(a)(3) and (1) of the Act.
7. The termination of Garland Pottorff's employment.
Whether Respondent constructively discharged Garland
Pottorff in violation of Section 8(a)(3) and (1) of the Act.
8. Warning notice to Ed Blando. Whether or not Respon-
dent violated Section 8(a)(3) and (1) of the Act by a warning
notice given to driver Ed Blando.
9. The alleged unlawful refusal to bargain. Whether or not
Respondent refused to recognize and bargain with the Union
in violation of Section 8(a)(5) and (1) of the Act. A related
issue is whether or not the Bernel Foam7 remedy is warranted
in the circumstances of this case.
10. The objections to the election. Whether certain of the
objections filed by the Union to the conduct affecting the
election are or are not meritorious.
C. Resolution of the Issues
1. The unit and the employees therein
(a) Description of the unit and "eligible voters: " The
General Counsel and the Union contend that the description of
the unit set forth in the complaint is that of an appropriate
bargaining unit. The Respondent contended, during the course
of the hearing, that the appropriate unit should include all bus
drivers without regard to the regularity of their employment.
It is noted that for the election held on March 17, 1967, which
was based upon a stipulation for certification upon consent
election, the unit was described as "all bus drivers, including
regular part-time drivers" which is the unit set forth in the
complaint. It is well established that, as a general rule, "casual"
employees are not eligible to vote in a Board-conducted
election on the principle that such employees do not have a
sufficient community of interest with those regularly em-
ployed to-be given a voice in the determination of a bargaining
representative. It is concluded that the description of the unit
set forth in the complaint is an appropriate bargaining unit.
The record discloses that the parties litigated the issue of
whether certain of the bus drivers should or should not be
5The resolution of the issue of Allen's supervisory status is also
required in order to determine whether certain acts he is alleged to have
engaged in constitute violations of Section 8(a)(1) of the Act.
6Although the complaint , as amended , alleges that the Respondent
engaged in unlawful surveillance on both February 22, 1967, and March
14, 1967, there is no evidence in the record relating to the allegation of
a violation on February 22, and, therefore , there is no issue with respect
thereto.
7Bernel Foam Products Co., Inc., 146 NLRB 1277.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classified as casual employees, in order to determine who,
among the bus drivers, would have been eligible to vote if the
Board had conducted an election on February 11, 1967.8
The Respondent contends that there were 77 drivers in the
employ of Respondent as of February 11, 1967, and that they
all should be counted as eligible voters on said date. The
parties stipulated that, of this number, 59 employees may be
characterized as "eligible voters." Thus, the status of the
remaining 18 must be determined. Twelve of the 18 were in
the category of extra drivers. The status of an additional four
of the drivers requires a determination as to whether or not
they were in the employ of Respondent as of February 11,
1967. As to the remaining 2 of the 18, the issue is as to
whether or not they are within the category of supervisors
within the meaning of the Act. The issues concerning these
three categories are considered hereinbelow.
(b) The extra drivers: While the Union contends that extra
drivers, as a class, cannot be considered as eligible voters, the
Respondent contends that all of them should be considered
eligible. On the other hand, the General Counsel only contends
that certain of them should be excluded. It does not appear
that the extra dnvers, as a class, can be considered to have an
insufficient community of interest with the other drivers to
permit the determination that they cannot be counted among
the eligible voters, or, as a class, have a sufficient community
of interest to be considered as eligible voters.
The record discloses that Respondent divides the drivers
into four categories- full-time school bus drivers, part-time
school bus drivers, charter drivers and extra drivers. The
full-time school bus drivers are guaranteed a certain number of
hours per day of work during the school week. The part-time
school bus drivers are also guaranteed a certain number of
hours per day of workweek, but a lesser amount than the
full-time school bus drivers. Some of the charter drivers are
guaranteed a certain number of hours per day depending upon
the type of run to which they are assigned. These include the
charter dnvers who have regular commuter runs. Also included
are others who have regular runs during certain seasons such as
those seasons when various race tracks are operating. Most of
the charter runs are not regularly scheduled and generally the
drivers are compensated for the number of hours required for
the run.
All categories of drivers are assigned from time to time to
charter runs; i.e., to those trips which are assigned as single
runs. It appears that, in dispatching drivers for charter runs
(other than those regularly scheduled), selection is made firstly
from the part-time school bus drivers, secondly from the
full-time schoolbus drivers, thirdly from the charter drivers and
lastly from the category of extra drivers.' It further appears
from the record that there are approximately 50 regular school
bus runs and it is frequently necessary to find substitutes for
the regular drivers who fail to report for their scheduled runs.
It appears that substitutes are selected first from the category
of extra drivers and then from the category of charter
drivers. 10
The record discloses that all of the drivers with the
exception of Allen' 1 receive the same rate of pay per hour,
based upon the type of run and type of bus. The only other
compensation the dnvers receive, according to the record
consists of the fringe benefit of health insurance. This benefit
is made available to employees who average a certain number
of hours of work. This fringe benefit does not afford a criteria
for determining whether extra drivers are or are not casual
employees, since a considerable number of the 59 who were
stipulated to be eligible voters do not have this fringe benefit.
There is some evidence in the record to the effect that
certain categories of the drivers are required to be available at
all times and may refuse trips only for good reason, whereas
extra drivers are available only at certain times and may refuse
trips. The record is far from clear that the Company has a set
policy with regard to the right to refuse trips. Consequently,
this type of evidence does not present a factor to be
considered in determining whether the extra drivers should be
excluded as a class from those eligible to vote.
A number of the extra dnvers have full-time employment
elsewhere. For example, certain of them are employed as
firemen and have regularly scheduled days off when they make
themselves available to the Company. The fact that certain of
the extra drivers have employment elsewhere does not appear
to be a criterion which would establish a basis for finding that
they should be excluded from the list of eligible voters. These
drivers are available throughout the year and are not in the
category of seasonal employees, such as teachers and students,
who are generally excluded from eligible voters in a unit.' ' It
is concluded that full-time employment elsewhere is not, of
itself, a factor which would establish a lack of sufficient
community of interest with the other categories of drivers for
extra drivers to be excluded from the ranks of eligible voters.
The record does not reveal that there is a greater rate of
turnover of employees among the extra drivers than in the
other categories of drivers.13
There is one characteristic which does distinguish the extra
drivers from those in other categories, the average number of
hours worked per week. However, the number varies consider-
ably among the extra drivers. Some of them work sporadically
and average only a few hours per week, while others work
rather consistently and average a fairly substantial number of
hours per week. Thus, it is concluded that the only factor
which can appropriately be considered in determining the
community of interest of the extra drivers is the number of
hours worked and that such a determination must be on an
individual basis.
It would appear appropriate to include as eligible voters
only those extra drivers who averaged 25 percent or more of a
40-hour week; i.e., 10 hours or more per week during the 6
weeks prior to February 11. Motor Transport Labor Relations,
Inc., 139 NLRB 70, 72. The record reveals the pattern of
employment of each of the extra drivers for the 6 weeks
period starting with the week ending on January 7, 1967,
through the week which includes the date of February 11,
8General Counsel and the Union contend that the Union acquired
majority representation as of February 11, 1967.
9 This is based upon the uncontradicted and credited testimony of
Gregory who works in the charter division office and has, as one of his
responsibilities , the assignment of drivers to charter runs.
10 This is based upon the uncontradicted testimony of Frank
Mannino, who is in charge of the school bus division office.
11 Allen's remuneration is set forth in the section hereinbelow in
which his supervisory status is considered.
12Cf. Westinghouse Air Brake, 119 NLRB 1391, 1396.
j3 Cf. Cab Operating Corporation , 153 NLRB 878, 883.
M & M CHARTER LINES, INC. 609
1967.14 Set forth hereinbelow is the average of hours worked
per week during said 6-week period by each of the 12 extra
drivers:
Extra Driver
Average
Weekly Hours
Jerome Cantrell 17.83
David L. Gardner 13.3
Joe M. Goar 3.7
Joseph W. Herbster 14.95
Roger T. Hirdler 33.25
Gerald E. Jeffrey 5
Dale Palfreyman 15.95
George J. Pepper 3
Ernest Roberts 23.34
Jack S. Smith 3
Herbert Terrell 14.5
Richard J. Thomas 14.6
Based upon the above criterion of an average 10-hour
workweek, or more,15 it is concluded that four of the extra
drivers, Goar, Jeffrey, Pepper and Smith, were not qualified as
eligible voters as of February 11, 1967.16 Thus, it is
determined that the remaining eight extra drivers should be
included in the list of eligible voters as "regular part-time
drivers."
(c) The employment status of four individuals: The
General Counsel contends that two individuals, Marcella
Ortega and Vincent Villasana, should not be counted as eligible
voters (as of February 11, 1967) because they had no
reasonable expectation of returning to work as of said date. He
also contends that two other individuals, Maudie Falcone and
Patricia Frickey, should not be counted among the eligible
voters as of February 11 because they had not, as of that date,
entered the employ of Respondent. The issues with respect to
said individuals are considered hereinbelow.
Marcella Ortega: Oretga was employed as a part-time school
bus driver, apparently beginning in August 1966, and,
according to the payroll ledger, the last week for which she
was paid was the week ending January 21, 1967. It appears
that on January 19 she failed to report for work. Her
personnel card bears the following notations, "Incapable to
work as of January 21, 1967" and "Quit - 3/31/67."
Her husband, Joseph Ortega, who has been in the employ of
Respondent since the summer of 1966, testified that she left
Los Angeles for Houston, Texas, around the middle of
January, that she was hospitalized for 8 days in Houston and
then went to Albuquerque, New Mexico; and that she did not
return to Los Angeles until April or May of 1967. He fur'ier
testified that Frank Mannino and Gregory asked him on a
number of occasions when she would return to work to which
he replied that he did not know; that they knew she was in the
hospital; and that Grace Gregory, who worked in the office on
personnel matters, told him that she had put his wife on leave
of absence and that he said "that would be all right."
Sometime in February, which Joseph Ortega estimated to be
between 2 weeks to a month after his wife's last day of work,
Grace Gregory suggested that she cancel the separate insurance
policy that was being carried on behalf of his wife, and put her
on his policy. Joseph Ortega also testified that the first time he
mentioned to someone in management that his wife was not
coming back to work was in April or May 1967. However,
Grace Gregory testified that the first time she talked to Joseph
Ortega about his wife was about March 10, 1967, at which
time she asked him whether his wife was coming back to work
and that he replied, "No. I don't think she will ever come
back." Grace Gregory further testified that it was at that time
she suggested cancelling Marcella Ortega's insurance and
putting her on his policy as a dependent. There is no conflict
in the above testimony except as to certain dates. The
testimony of Grace Gregory with regard thereto is credited,
since her recollection with respect thereto appeared to be
clearer than that of Joseph Ortega. It would appear from the
above credited testimony that, as of February 11, 1967,
management expected her to return to work, and there is no
basis for inferring that, as of said date, Marcella Ortega did not
expect to return to work. Consequently, it is concluded that,
had an election been conducted on said date, Marcella Ortega
would have been included in the bargaining unit.
Vincent Villasana: On December 23, 1966, Vincent
Villasana was involved in an accident and did not work for
Respondent after that date. He was hospitalized during part of
January and February 1967 and his leg was still in a cast as late
as the middle of March 1967. General Counsel argues, "Based
on the nature of the injuries received by Villasana, as injuries
related to his work as a bus driver, it would be unreasonable
that Respondent should consider Villasana as having a
reasonable expectancy of recall." There is nothing in the
record which would support the appropriateness of such an
inference. It appears that Villasana's medical treatments were
covered by Respondent's insurance plan. General Counsel
contends that this fact did not indicate that he had a
reasonable expectancy of recall. General Counsel argues, "In
the event Villasana had not been covered, then his employ-
ment with Respondent would no doubt been terminated."
This argument amounts to no more than speculation. The
record reveals that Villasana attended a dinner given by
management for its employees on March 15, 1967, at which
time his leg was still in a cast. It does not appear that
Respondent took any action to terminate him prior to said
date. Therefore, it would appear appropriate to infer that at
least as late as March 15, 1967, Respondent and Villasana
considered he was still an employee. Therefore, it is concluded
that, if an election had been conducted on February 11, 1967,
Villasana would have been considered as being a member of
the bargaining unit and eligible to vote.
Maudie Falcone and Patricia Frickey: Falcone's application
for employment was dated February 2, 1967; her W-4 form
was dated February 14, 1967, and the date of hire on her
14There are payroll records in evidence for five of the extra drivers
which cover a more extensive period prior to February 11, 1967, but
not for the other seven extra drivers.
15See also Scoa, Inc., 140 NLRB 1379, 1381, and Fresno Auto
Auction, Inc., 167 NLRB No. 124, cf. Bowman Transportation, Inc.,
166 NLRB No. 111.
16It is noted that in his brief General Counsel contends that the
same four extra drivers should be excluded from the unit as casual
drivers. However , he further contends that a fifth driver , Palfreyman,
should also be excluded . This contention is based upon Palfreyman's
payroll record, not only for the 6-week period considered, but also on
his payroll record prior thereto and subsequent to the week of February
11, 1967. Since the record only affords a comparison of all the extra
drivers for the aforesaid 6-week period and the average Palfreyman
worked during said period was above 10 hours, the finding with respect
to him is contrary to General Counsel 's contention . Apparently General
Counsel does not contend that the other extra drivers should be
excluded.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel card was also February 14, 1967. Her payroll ledger
indicates that she received her first paycheck for the week
ending February 18, 1967, and that her date of employment
was February 14, 1967.
Patricia Frickey's application for employment is dated
February 7, 1967. Her medical examination is dated February
14, 1967, and her W-4 form, February 21, 1967. Her payroll
ledger indicates that her employment commenced on February,
21, 1967, and it appears that the first payroll period during
which she worked was the week ending February 25, 1967.
The parties stipulated that Falcone received driver training
from February 2 through February 14, and Frickey from
February 7 through February 21, and that they were not on
the payroll records during their training periods. During their
training periods they were in the process of getting schoolbus
driver's licenses and passing medical examinations and first aid
tests. General Counsel argues in his brief "They did not
become employees until after they satisfactorily passed their
training period." He states in his brief that if any of the
requirements of licenses and of passing the physical examina-
tion and first aid test were not met they would not have been
hired or put on the payroll. He cites Colecraft Mfg. Co., Inc.,
162 NLRB No. 69, and Barry Control, Inc., 113 NLRB 26, in
support of his contention that both Frickey and Falcone
should be excluded from the bargaining unit. The Trial
Examiner finds that said contention is meritorious and
concludes that Falcone and Frickey should not be counted
among the eligible voters as of February 11, 1967.17
(d) The supervisory status of Allen and Nicolello: General
Counsel and the Charging Party contend that Allen, who has
the title of head bus driver, is a supervisor within the meaning
of the Act. On the other hand, Respondent contends that he is
not a supervisor and in support of this contention argues that
his duties were virtually identical with those of the dispatchers
set forth in Eastern Greyhound Lines, 138 NLRB 8, in which
the Board held that dispatchers were not supervisors. It does
not appear that the holding in the case cited is applicable to
the instant case. It is noted that the Board in the cited case
found that, for the most part, the dispatchers exercised
authority only with respect to the handling of equipment and
their duties did not involve responsible direction of employees.
The Board in said Decision pointed out that such matters as
interviews, hiring and the training of drivers was not done by
the dispatchers but by the safety supervisor.
Considerable testimony was adduced with respect to the
duties and responsibilities of Allen. As indicated hereinabove,
Frank Mannino was in charge of the school bus division, and
the only other person who worked in that office was Allen.
Both Frank Mannino and Allen attempted to minimize Allen's
responsibilities , to the extent that if this aspect of their
testimony were credited, it would appear that Frank Mannino
relied upon him for little more than running errands and
transmitting Mannino's orders . HoweN er, there was some
contradiction in their testimony with regard thereto. Mannino
admitted that he has asked Allen's "opinion" in the making of
schedules and with respect to other matters, but not his
"advice." On the other hand, Allen testified that he never
talked with Frank Mannino about the work of the school bus
drivers.
The record discloses that Allen trains applicants for
employment and tests their driving ability. He reports his
findings on a check sheet which enables Frank Mannino to
make the decision whether to hire the applicant. Therefore, it
appears that Allen's appraisal of an applicant is taken into
consideration in determining whether to employ him. Frank
Mannino admitted that he does ask Allen's opinion as to
whether or not an applicant can be trained and one of the
factors he takes into consideration is Allen's report on the
applicant's ability to drive. Also, it appears from the record
that Allen trains drivers already in the employ of Respondent
to drive larger buses and fills out similar check sheets to enable
management to determine whether the driver is available for
assignment to larger buses. Thus, it is concluded that Allen
exercised the authority to effectively recommend hiring of
employees and their promotion to larger buses.' 8
While Allen does not have a salary, it appears that he
receives a 15 cents per hour higher hourly rate ($2.75) than do
the other school bus drivers ($2.60) and that he is paid for 50
hours a week at that rate, no matter what work he does. It
appears that in addition he takes charter runs for which he
receives the same rate as other charter drivers. This apparently
is on weekends when the school bus division office is not
operating. While the record discloses that Allen has a regular
school bus run, it is noted that it is in the afternoon when, it
appears reasonable to assume, the office demands have
slackened.
A study of the record reveals that the drivers regard Allen as
a supervisor. It appears that he is also so regarded by
management. After the discharge of Robert Fogle, which is
considered in detail hereinbelow, the union business represen-
tative, Elrich Billodeaux, talked to Dominic Mannino about
Fogle's discharge. Billodeaux testified that Mannino told him
that Fogle was discharged for striking Allen; that he, not Allen,
had discharged Fogle; and that Allen did not have the
authority to discharge Fogle. However, according to
Billodeaux's testimony, Mannino also told him that he had to
let Fogle go because if he did not, Allen's "authority would be
looked down upon by the other drivers" and he (Allen)
"would not be respected a1,y longer." When Mannino was
questioned with regard to what he stated to Billodeaux, he
substantially corroborated the testimony of Billodeaux, but
denied that he used the word "authority." However, he
admitted that he probably used the word "respect," but did
not recall in what context he used it. Mannino's recollection of
what he stated appeared to be rather vague and, therefore, the
testimony of Billodeaux is credited.
It is noted that there are approximately 50 drivers
supervised by the school bus division office. If Allen were not
a supervisor, there would be 50 employees under only one
supervisor, Frank Mannino, which would appear to be a very
high ratio of employees to supervisory personnel.
In view of all the circumstances above outlined, it is
concluded that Allen is a supervisor within the meaning of the
Act and should be excluded from the bargaining unit.
With regard to the supervisory status of Thomas Nicolello,
it is noted that he works in the charter division office which
has two full-time supervisors, Simpson and Gregory. It appears
from the record that Nicolello receives the same rate of pay
17In addition to cases cited by General Counsel , see also Page
Aircraft Maintenance, Inc., 123 NLRB 159, 172.
18This is further supported by the credited testimony of Eleanor
Mayfield,. John Rust and Willard Bolden with regard to their being
hired.
M & M CHARTER LINES, INC.
per hour as do other drivers and that he is primarily a driver. In
between his runs, however, he works in the charter bus office
assisting Simpson and Gregory, and on weekends, particularly
Sunday,.he is frequently alone in the office. It appears that the
only one of his duties which General Counsel contends places
him in the category of supervisor is that of dispatching. It
appears from Nicolello's testimony which is credited, as well as
that of Gregory, that Nicolello does not select the drivers but
merely notifies the drivers of their assignments which
(normally) have been previously made by Simpson or Gregory.
It further appears from his credited testimony that when he
does have to make a selection he generally follows the practice
of starting at the top of the list of available drivers.
It is concluded that Nicolello exercises little or no
independent judgment in his duties as a part-time dispatcher
and, therefore, is not a supervisor within the meaning of the
Act. Overnight Transportation Company, 128 NLRB 723.19
Consequently, it is determined that Nicolello should be
included in the bargaining unit.
In summary, based upon the above findings, it appears that
there should be added to the 59 employees stipulated to be in
the bargaining unit as of February 11, 1967, eight extra
drivers,20 the two drivers who were found to be on leave
(Ortega and Villasana) and Nicolello, making a total of 70
eligible voters in the bargaining unit as of said date.21
2. The authorization cards
In support of General Counsel's contention that the Union
represented a majority of the employees in the bargaining unit
as of February 11, 1967, the General Counsel introduced into
evidence 35 authorization cards22 and an honorable with-
drawal card from the Union held by Donald McGuire. 2 3 The
Respondent contends that "at least 30 [of the cards] are
rendered invalid because of misrepresentation by the solici-
tors."
One such claimed misrepresentation is that the solicitor
stated that the card would be kept confidential .24 The
Respondent argues that if a card is to be kept confidential it
cannot be used to establish a majority. It does not appear that
there is any merit to this contention. It is a common practice
to submit cards to impartial third persons for the proof of
majority representation, thereby avoiding disclosure to the
employer. Research did not reveal any precedent in support of
Respondent's contention, but rather the decisions in cases
involving such an issue appear to indicate the contention is
without merit. General Steel Products, Inc., 157 NLRB 636,
645; Sterling Aluminum Company, 163 NLRB No. 40.
19It is noted that in the cited case the Board found that dispatchers
who exercised little independent judgment were not supervi^..., as
contrasted with a dispatcher who did exercise independent judgement
and was found to be a supervisor.
20 Cantrell , Gardner , Herbster , Hirdler , Palfreyma. , Roberts, Terrell,
and Thomas.
21It is noted that in his brief the General Counsel contends that
there were 66 in the unit comprised of the 59 stipulated to be therein,
and 7 of the 8 extra drivers (not including Palfreyman) found
hereinabove to be regular part -time drivers
22The cards contain the following language:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employee of M & M Charter Lines Company,
hereby authorize the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local 572, as my
Collective Bargaining Representative with respect to wages, hours,
and other conditions of employment.
611
it is well established by Board decisions that when a card on
its face clearly designates a union as bargaining agent, as found
to be the case in the instant proceeding, the authorization is
not invalid merely because the employee was told that the card
would be used to secure an election. It is also well established,
however, that the validity of the authorization may be
effectively attacked if it was solicited with the representation
that the only purpose for which it would be used was
something other than that stated on the card,2 5 such as only
for an election. The record reveals that, in the course of
soliciting cards, representations with respect to an election
were made in a number of instances. This testimony is
considered hereinbelow.
Following is an analysis of the testimony with respect to
each of said cards and a determination of whether it
constituted a valid authorization. The cards are considered in
the alphabetical order of the names of the employees who
signed them.
Jack K. Ayres: John Pottorff testified that he obtained the
signature on this card. There is nothing in the record to
indicate that the signature was obtained upon any misrepresen-
tation. Consequently, it is concluded that Ayres' card is a valid
authorization.
Wade H. Ayers: Eugene White testified to the obtaining of
Ayers' signature. Although he testified that he told Ayers that
signing the card "was not a vote for the Union," it is clear
from White's credited testimony that Ayers intended to
designate the Union as his bargaining representative by signing
the card. In any event, the statement that it was not a vote for
the Union, without more, is insufficient to invalidate the clear
language of the card itself. Consequently, it is concluded that
Ayers' card constitutes a valid authorization.
Jack D. Bailey: Pottorff testified to the solicitation of the
signature on this card and there is nothing in the record to
indicate that he made any misrepresentations. Consequently, it
is concluded that Bailey's card constitutes a valid authoriza-
tion.
Cleo E. Berry: Berry testified that he was offered a card
four times before he signed one. According to Pottorff, he
obtained Berry's signature after two unsuccessful attempts.
They both testified that Pottorff stated that there would be an
election when enough signatures were obtained. While Berry's
reluctance to sign has been considered as a factor in evaluating
the circumstances surrounding the signing of his card, it does
not constitute a governing factor. It does not appear that the
representation with regard to an election made by Pottorff
constitutes a basis for finding that the card was to be used only
for some purpose other than that stated on the card.
23Thuty-four of the authorization cards were signed by employees
stipulated to be in the bargaining unit. The 35th card was signed by
Roberts, an extra driver, who was found hereinabove to be a member of
the unit . McGuire is among those stipulated to be in the unit.
24It is noted that the card, itself , bears the following legend, "All
Cards Are Kept Confidential by the Teamsters Union and the United
States Government."
25Cumberland Shoe Corporation , 144 NLRB 1268, Amalgamated
Clothing Workers v. N.L.R.B. (Sagmore Shirt Company), 365 F.2d 898,
The Shelby Manufacturing Company, 155 NLRB 464, 466.
A detailed study of cases involving the validity of authorization
cards may be found in 67 LRRM 165, which contains the text of an
address given by the Board 's Associate General Counsel H. Stephan
Gordon , on February 15, 1968.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, it is concluded that this card is a valid
authorization.
Edward Blando: Blando was one of those actively engaged
in soliciting authorization cards on behalf of the Union. There
is nothing in the record to support a finding that he, himself,
signed the card upon a misrepresentation that it would be used
only for some purpose other than stated on the card.
Consequently, it is concluded this card constitutes a valid
authorization.
Willard Bolden: Both Bolden and Pottorff, who solicited
the card from him, testified that Pottorff made a statement to
the effect that if a sufficient number of drivers signed cards
there would be an election. It is well established that such a
representation, without more, in face of the clear language of
the card, is not sufficient to establish that the card was signed
upon a representation that it would be used only for an
election. Consequently, it is concluded that this card is a valid
authorization.
Bart Burgin • Burgin testified that Pottorff solicited the card
from him. It appears from Burgin's subjective testimony that
he would have been satisfied to have union representation
provided a majority of the drivers were in accord.26 However,
his testimony is considerably confused and the Trial Examiner
does not believe it appropriate to rely upon this subjective
testimony. In view of the confused nature of Burgin's
testimony, the Trial Examiner attempted to elicit from him
what he was led to believe was the purpose of soliciting his
signature on the authorization card. His testimony in response
thereto clearly indicates that he was given to understand that
the only use to which the card was to be put was to obtain an
election. Consequently, it is concluded that this card does not
constitute a valid authorization and cannot be counted toward
establishing the Union's majority status.
David Burtle: It appears from Burtle's credited testimony
that when White solicited an authorization card from him,
White stated, in effect, that there would be an election if
enough cards were signed. As indicated above, such representa-
tion is not sufficient to establish that the only purpose for
which the card was sought was to secure an election.
Consequently, it is concluded that this card is a valid
authorization.
Barbara Wilhoit Campbell: 2 7 Her card was solicited by
Pottorff. Both she and Pottorff testified that he stated to her
that if enough drivers signed cards there would be an election.
As has been indicated several times hereinabove, such a
statement is not sufficient to support a finding that the stated
purpose for obtaining the card was only to secure an election.
Therefore, it is concluded that this card constitutes a valid
authorization.
Albert Coleman: There is nothing in the record to indicate
that any misrepresentation was made to Cole- in when
obtaining his card. Consequently, it is concluded that it
constitutes a valid authorization.
Leslie S. Corlew: This card was solicited by White. It
appears from the testimony of both Corlew and White that
White stated to him that the card was not a vote for the Union
and that before there could be an election the Union would
have to obtain a sufficient number of cards. Corlew testified
without contradiction that White told him the card was
"mainly for reference for my address and phone number and
name.i2 8 Although White at first testified that he could not
truthfully say he read the card completely, it appears from his
subsequent testimony that he did read it over before he signed
it. It does not appear in the circumstances that the
representation of the main purpose of the card is sufficient to
find that the only purpose for obtaining his card was to give
the Union Corlew's name and address. For the reasons stated
hereinabove, neither the representation that the card was not a
vote for the Union nor the representation that there would be
an election is a sufficient basis to find that Corlew did not sign
the card for the purpose clearly stated thereon. Consequently,
it is concluded that this card is a valid authorization.
Loyal Diehl: There appears to be a contradiction in the
record as to who gave Diehl his card. Diehl testified that Burtle
gave him the card, that he did not tell him it was only for an
election, and that he read the card which did not say anything
about an election. Pottorff testified he gave Diehl a card and
that Diehl signed it in his presence and returned it. Pottorff
further testified that he "possibly" discussed with Diehl that
they needed cards from 30 percent of the drivers to get a
petition to have an election. It does not appear necessary to
resolve the above noted conflict in the testimony, since,
whether one or the other version is credited, it appears that
there is no basis for finding that any representation was made
to Diehl that the card was to be used only for some purpose
other than that stated on the card itself Consequently, it is
concluded that this card is a valid authorization.
Woodrow Eckman: Eckman testified that Pottorff solicited
the card from him; that he read it; and that he signed it on the
date indicated on the card. He further testified that, while he
heard "people talking" that the purpose of the card was for an
election, he did not hear this before he signed the card. It does
not appear that any misrepresentation was made to him by the
solicitor, or that there is any basis for finding that he did not
by signing the card intend to designate the Union as his
bargaining representative. Consequently, it is concluded that
this card is a valid authorization.
Robert Fogle: Fogle testified that Pottorff gave him his
card and that he read it and signed it. Although White testified
that he gave Fogle a card, it is not clear from White's
testimony that the card in evidence is the one which White
testified that he gave Fogle. White testified that he told
"almost everyone" he gave a card to that the card was "not a
vote for the Union" and that before there could be an election
the Union would have to obtain "a majority in number of the
cards." As has been held hereinabove, such representations
made by White are not sufficient to find the card an invalid
authorization. Therefore, whether White did or did not make
such representations to Fogle, it appears appropriate to
conclude that this card constitutes a valid authorization.
Doris Fowler: The record discloses that Pottorff solicited
the authorization card from her. Pottorff testified that she, at
first, refused to sign and indicated that she was afraid, that he
talked to her subsequently in the presence of Willard Bolden,
that he told her that if she wanted the Union to come in and
represent her to sign the card, and that she signed the card. He
26It appears that this condition has not been met , in view of the 28It is noted that Corlew testified , apparently as an explanation of
finding hereinbelow that a majority of the drivers did not signify that this purpose, that he had a "withdrawal card out of the Union,"
they wished to have the Union represent them. indicating that they were not certain that in such circumstances his
7At the time she signed the card her name was Barbara Wilhoit . authorization card was needed.
M & M CHARTER LINES, INC 613
further testified that he did not tell her anything about an
election at that time. Bolden testified that he was present on
that occasion and there was no mention of an election.
Fowler's testimony contradicts that of Pottorff and Bolden.
According to her testimony, she and Pottorff had quite an
extensive conversation about the card and he made quite a
number of representations to her, she indicated her reluctance
to sign the card; Pottorff told her the card would not involve
her in any way; she told him that she did not want to affix her
name to something she did not understand; and he told her the
card "did not mean anything," that "it was only to get a
consensus of opinion as to how many employees would like it
to come to a vote" and that she was "under no obligation" to
vote for the Union.29 The General Counsel attempted to
impeach her testimony. He elicited from her that she told him
that she did not want to appear at the trial and that
subsequently she talked to Dominic Mannino who asked her to
testify. However, she further testified that she had quit her job
with the Respondent and was, at the time, employed by
another company. Fowler appeared to be forthright in her
testimony and to have a good recollection of what occurred at
the time she signed the card. It is the opinion of the Trial
Examiner that her testimony should be credited. Therefore, it
is found that Pottorff represented to her that the card was to
be used only for some purpose other than that stated on the
face of the card, and it is concluded that this card does not
constitute a valid authorization.
Willie L. Fox, Moses Gonzales, Dirk Groeneweg, and
Richard A. Hart: It does not appear that any misrepresentation
was made to any of them with respect to the purpose of the
card and therefore it is concluded that their cards constitute
valid authorizations.
Mary Hutchins: Hutchins testified that she thought White
solicited the card from her. It was apparent from her
testimony that her recollection was vague as to the circum-
stances surrounding the signing of her card. Although she
indicated in her testimony that her "overall impression" was
that the card did not constitute a "comittment," she also
testified that she thought the card was "self-explanatory." It
does not appear that there is any basis for inferring that a
misrepresentation was made to her that the card was to be
used only for some purpose other than stated on the card, and
therefore it is concluded that it constitutes a valid authoriza-
tion.
Betty Lou Jackson and Robert E. Jackson: Blando testified
that he obtained the cards from both Jacksons, who are
husband and wife. He testified that he told them that if 51
percent of the cards were signed, the employees would have a
union and that there was no discussion about an election. She
testified that Blando solicited her signature on the authoriza-
tion card. She was examined as to whether Blandc said
anything to her when he gave her the card and her testimony is
as follows:
A. He just said it was a card giving authorization for the
Union to come in and let us know whether we wanted it or
not, you know, to tell us what they could do for us and
everything, and then it was up to us to decide whether we
wanted it or not.
Q. Did he say anything about an election?
A. No.
29In essence , this same testimony was repeated several times in the
course of her examination.
Although the purpose for the card represented in Blando's
statement did not contain an exclusionary word such as
"only," "merely" or "just," the concluding phrase which
indicated that the employees signing cards reserved the right to
make up their minds whether they wanted the Union to
represent them or not, negates the language of authorization
on the card. Robert Jackson testified to what Blando states as
follows:
A. The only thing he said they wanted the card-they
had to have 51 per cent of the drivers to find out if they
wanted the Union to come in to represent us or not. I
mean, you know, to have an election, it was just if we
wanted one or not, (underlining added)
Q. Wanted what?
A. An election for a Union.
Q. Now, what did Mr. Blando say about an election?
A. I'm kind of balled up. I'm not-wait a minute. I'll try
to explain it in my way, and maybe I'll get it out that way.
When Eddie gave me the card, you know he said we had
to have 51 percent of the drivers to see if they wanted a
Union to come in, to meet with the Union to see if they
wanted to have them represent us or not; you know, for a
Union, or to have an election or whatever we wanted. In
other words, at the time, there was nothing said about, you
know, for a union, or to have an election or whatever we
wanted. In other words, at the time, there was nothing said
about, you know, signing the card for an election.
Although the above testimony is somewhat ambiguous, a
careful study of his testimony leads the Examiner to conclude
that he testified that he was told that the card was to be used
"to find out ... just if we wanted ... an election for the
Union." (Emphasis supplied.) This interpretation of his
testimony is supported by the above quoted testimony of his
wife as to what she understood Blando stated. In view of the
similarity in the testimony of the Jacksons and it appearing
that they were attempting to testify to their best recollection,
their testimony is credited. Consequently, it is concluded that
neither of the two cards constitutes a valid authorization.
Betty Jo Jimenez: Pottorff solicited her card. Pottorff's
testimony discloses that he had only a vague recollection with
respect to the circumstances in which he obtained the card
from her. She testified that Pottorff told her, among other
things, during several different conversations, the card would
not mean that she was joining the Union; that she would not
have to join the Union; "just that I would be on a list and get
information about it, because I didn't know anything about it
[the Union]." She further testified that she asked him to
explain what the language on the card meant, and that "he said
it just meant that I would be represented; that somebody
would talk to me and explain about the Union to me, one of
the officials." She also testified that she had a conversation
with White prior to talking to Pottorff and that he said, inter
alia, that the card "would not mean that I was going to join
the Union; only that I would listen to their side of it." When
she was questioned by the Trial Examiner as to whether she
had read the card before she signed it, she replied that she did:
"And I asked him if this meant that I would join the Union.
And he said no, it only meant that I would get information
from them."
White testified that he told her that by signing the card "it
wasn't authorizing the Union to represent her in behalf of a
contract when such time as a Union did get in." It is apparent
from White's considerable testimony as to what he said to
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people about the purpose of the card and what he was told
with respect to the purpose of the cards that he was extremely
confused as to the purpose of the card. Thus, not very much
weight can be given to his testimony. In view of this, of
Pottorff's hazy recollection and of the fact that Jimenez
appeared to have a fairly good recollection of what she
understood was said to her, her testimony is credited. Her
credited testimony reveals that she was told that the card
would be used only for something other than the purpose
stated on the face of the card. Consequently, this card cannot
be considered a valid authorization.
Frederick J. Lofton, Eleanor Mayfield: It does not appear
that any misrepresentation was made to either of them with
respect to the purpose of the card and therefore it is concluded
that these cards constitute valid authorizations.
Ralph J. Murray: He and Pottorff both testified to the
circumstances surrounding the solicitation of his card. An
examination of their testimony indicates that while there was a
discussion about the election, this did not occur until after he
had signed the card. It does not appear that there was any
misrepresentation made to him which induced him to sign it
and therefore it is concluded that this card constitutes a valid
authorization.
Joseph Ortega, Garland Pottorff, George C. Powell, Ernest
Roberts, John Rust, Otis Sinclair: It does not appear that any
rrusrepresentations (that the cards would be used only for
some purpose other than stated on the card) were made to any
of them to induce them to sign their cards. It is noted that
both Pottorff and Rust were active in soliciting cards on behalf
of the Union. Consequently, it is concluded that all of their
cards are valid authorizations.
James W. Stafford: He testified that he did not recall who
gave him his card and that he did not recall reading it before he
signed it. He further testified that he was told that the card
was "to see if we're going to have a vote ... for or against the
Union," and that he signed the card and stated to the solicitor
that it was not going to hurt him "one way or the other."
Although he testified that he did not recall reading the card, it
is reasonable to assume he read it in order to fill in the blank
spaces. His testimony with respect to the purpose of the card
does not indicate that it was represented to him that a "vote"
was the only purpose. The testimony as to his statement to the
solicitor that the card would not hurt him one way or the
other is too ambiguous to shed any light on his intent in
signing the card. It is concluded that the record with respect to
the circumstances in which he signed the card is not sufficient
to rebut the presumption that he signed it for the purpose
stated thereon and is a valid authorization.
Doyle W. Townson: Pottorff solicited this card and testified
that he told Townson that if enough drivers signed they could
have an election. Townson testified that when Pottorff gave
him the card he told him that the card would give the
employees "the right to vote for an election, or have an
election for the Union"; that he told Pottorff he was not
particularly interested in the Union; that Pottorff told him
everybody else was signing the cards and it would give them
the right to have an election, and that he did not read the card
before signing it. However, in the subsequent portion of his
testimony, he testified that he filled in all of the blank spaces
on the authorization card. While it is of course quite possible
for him to have done so without reading the few lines which
set forth the authorization, it is deemed somewhat unlikely. It
does not appear from the above testimony that Pottorff
represented that the purpose of the card was only for
something other than the language thereon. It does not appear
that the record would support a finding that Townson would
not have signed the card had it not been represented to him
that everyone else was signing a card.30 Further, it appears
that there is not a sufficient basis in the record to make a
finding that Townson signed the card upon a representation
that it was only for something other than to authorize the
Union to represent him. Consequently, it is concluded that this
card is a valid authorization.
Eugene H. White: Although his testimony indicates that he
was extremely confused as to what the purpose was for
employees to sign the caid and what he was told by the Union
with regard to the purpose, he was one of the most, if not the
most, active solicitors of the authorization cards. In all the
circumstances it appears reasonable to conclude that he,
himself, wished to have union representation and that by
signing this card he intended to designate the Union as his
bargaining representative. Consequently, it is concluded that
this card is a valid authorization.
Donald McGuire's withdrawal card: McGuire has held an
honorable withdrawal card from the Union for several years
(since October 31, 1963). The General Counsel contends that
this is equivalent to his having signed an authorization card.
The withdrawal card states on its face that he "has withdrawn
in good standing from membership" in the Union. On the
reverse side it is stated that the card "entitles him to
readmission" to the Union subject to certain conditions,
apparently quoting from article XVIII of the constitution of
the International. It is noted that in section 5(d) of said article
XVIII, reference is made to the holder of a withdrawal card as
an "ex-member" and provides for methods by which he may
return to membership. This section is also quoted on the back
of the card. The General Counsel, in support of his contention,
attempts to equate a holder of an honorable withdrawal card
with a member of the Union and cites a Decision31 of the
Board which holds that by virtue of his paid-up membership in
the union an employee, even though he has not signed an
authorization card, nevertheless has designated the union to
represent him. It is concluded that a holder of an honorable
withdrawal card cannot be equated with a member in good
standing, and therefore the cited case is considered inappli-
cable.
General Counsel further contends that, since McGuire
testified that he considered himself to be a "withdrawal
member in good standing" and that at a union meeting held a
few days before the election he identified himself to the union
president by "presenting his expired union membership card,"
it would be appropriate to infer that "McGuire would have
signed an authorization card but for the fact that he
considered himself to be a member in good standing and didn't
deem it necessary to do so." This appears to be no more than
speculation, and the evidence is insufficient to support a
finding that McGuire engaged in some overt act indicating that
he designated the Union to act as his bargaining representative
in his employment with Respondent. Consequently, it is
concluded that McGuire cannot be counted among those who
designated the Union as their bargaining representative.
30 See I.T. T. Semi-Conductors, Inc., 165 NLRB No. 98.
31Ben Ginsburg, Inc., d/b/a Brunswick Meat Packers, 164 NLRB
No. 111.
M & M CHARTER LINES, INC. 615
3. Union's claim of majority representation
Based upon the above findings with respect to the
authorization cards and the withdrawal card of McGuire, it is
concluded that as of February 11, 1967, the Union had been
designated as bargaining representative by 30 "eligible voters,"
as disclosed by the 30 valid authorization cards? 2
Since it was found hereinabove that there were 70 "eligible
voters" in the appropriate bargaining unit as of February 11,
1967, it is concluded that the Union had not acquired majority
representation on that date as contended by the General
Counsel and the Charging Party. 3 3
4. Independent violations of Section 8(a)(1)
(a) Unlawful interrogation, threats of reprisal, and re-
straint: There are numerous allegations in the complaint of
unlawful interrogation, threats of reprisal, and restraint, and
considerable evidence was introduced into the extensive record
relating to said allegations . In view of the foregoing, it appears
that the most efficacious method of disposing of the many
issues raised by said allegations is by considering the
contentions the General Counsel makes in his brief to
determine which of the allegations he believes have been
sustained, and to resolve his said contentions of various
violations of Section 8(a)(1) of the Act. Hereinbelow are set
forth, seriatim, the contentions of the General Counsel with
regard to said violations and a resolution of each of said
contentions.
(1) F. Mannino's interrogating Robert Jackson in early
February about his union activity and threatening that the
drivers would have it rough if the Union came in.
Robert Jackson testified that "around the first part of
February" 1967 he had a conversation with Frank Mannino at
the door of his office in the course of which Mannino stated,
"If the Union came in, they'd have it rough." He further
testified that by the word "they" Mannino was referring to the
drivers. He also testified that Mannino asked him how he felt
about the Union. Mannino was questioned about Jackson's
testimony and testified that he was positive that no such
conversation took place because he "didn't discuss the union
situation with anyone." Jackson appeared to be a convincing
and forthright witness. Consequently, it is concluded that
Jackson's testimony should be credited. It is further concluded
that the record establishes that the Respondent was strongly
opposed to the Union, engaged in a vigorous campaign against
it and, as disclosed hereinbelow, also engaged in other conduct
violative of the Act. Therefore, in such context, it is also
concluded that in the course of the aforesaid conversation, the
Respondent did threaten economic reprisal for adherence to
the Union and did unlawfully interrogate an employee.
(2) Allen's threats to Rust on or about February 15, that if
he was a union rabble-rouser he would be the next to go.
Rust testified that in the middle of February he, Allen and
a fellow driver, Roger Hirdler, had a conversation at Palos
Verdes High School. His testimony with respect to the
conversation is as follows.
Roger Hirdler asked John Allen what had happened to
Gene White. Gene White was absent during that day. And
John Allen said that he had fired him. I don't remember
exactly how the conversation ran exactly after that, but
pretty soon the conversation came around to me, and John
Allen asked me if I was a Union rabble-rouser, and I said
yes. And he said that I would be next.
Then Dave Burtle came into the bus, and I said
something to the effect that, "I'm glad you're here. It's
about to come to blows." I said it very jokingly, quite in
jest; and John Allen said that if I hit him it would be the
worst thing I could ever do, or something to that effect.34
Allen was questioned with respect to Rust's testimony and
confirmed that there was a conversation at the aforesaid high
school. Allen's testimony is as follows:
Mr. Rust came in my bus-Gene White was off sick, and
John Rust came up to the bus and said, "What did you do
with my buddy, Gene White, fire him?"
I thought he was kidding, because he knew what was
wrong with him, and I said, "Yeah."
Allen further testified that he and Rust got into an argument
about Allen's knowledge of labor law, and he denied that there
was any discussion as to whether or not Rust was a "union
rabble-rouser." Rust was the more convincing witness and,
therefore, his testimony is credited. Based upon the said
credited testimony, it is found that Respondent engaged in a
threat of economic reprisal violative of Section 8(a)(1) of the
Act.
(3) Gregory's interrogating Diehl on or about February
9, ... about his union activity.
Loyal Diehl testified that in the first part of February
Gregory was engaged in a conversation with several drivers who
were at the window and that when he approached the group,
Gregory asked him if he had been contacted about the Union.
When he said that he had, Gregory asked him how he felt, and
he replied that Gregory knew that he had always been a union
man. Gregory testified that he talked about the Union only to
a certain few drivers and Diehl was not among those named to
whom he talked. Gregory did not appear to be a forthright
witness as compared with Diehl. Consequently, Diehl's
testimony is credited, and it is found that in the context of
other unlawful conduct of Respondent's agents, Gregory's
questioning of Diehl as to his sentiments about the Union
constituted unlawful interrogation within the meaning of
Section 8(a)(1) of the Act.
(4) Allen's telling White in early February and on or about
March 6, that if he had any problems to take it up with his
union representatives.
White testified that in the early part of February he asked
Allen if there were any plans for getting another drinking
fountain, since the one that had been there had been removed,
and that, in the first part of March, he asked Allen about extra
keys for his bus, since they had been stolen. White further
32Of the 35 cards in evidence , 5 were found to be invalid.
33Thirty valid authorizations out of a unit of 70 members "eligible"
to vote It is noted that, even if all the extra drivers were considered
"ineligible voters," as contended by the Charging Party, and there were
only 59 in the unit (which the parties stipulated were in the unit
without question ) the Union had less than a majority , 29 valid
authorization cards. One of the 30 authorization cards found to be valid
was that of Roberts, an "extra driver." The General Counsel contends,
as indicated above, that there were 66 eligible voters in the unit, as of
February 11, 1967, including Roberts. Thus , even if Roberts ' card were
counted the Union had only 30 valid authorization cards which would
be less than a majority of the number General Counsel contends were
eligible to vote.
34It appears from the record that White was not fired but was
absent that day because of illness.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that in response to both questions, Allen told him to
take it up with his union representative and see if he could
supply the drinking fountain and the extra set of keys. Allen
denied White's testimony as to the two incidents. Although, as
indicated above, portions of White's testimony with respect to
the authorization cards indicate that he was confused as to the
purposes of the cards, nevertheless he appeared to be a
forthright witness who was testifying to his best recollection.
Consequently, his testimony is credited. Allen's sarcastic
replies to White's questions clearly implied a threat that the
Respondent would withhold its normal cooperation from
employees, if they adhered to the Union, in violation of
Section 8(a)(1) of the Act.
(5) Allen's threatening employees on or about February
25, that there would be no husband-wife teams if the Union
got in.
White testified that about February 25, 1967, he overheard
Allen talking to Alva and Bill Jenkins. Following is White's
testimony as to what occurred:
He [Allen] laughed first, and then he said, "Yeah. Well, I
heard Don mention the other day that if this Union comes
in, it will sure kill out these husband and wife teams that
are working here now; that husband and wife will not be
permitted to work here."
Allen testified that such a conversation never occurred. Alva
Jenkins was questioned with respect to the testimony of White
as to the aforesaid conversation and she testified that such a
conversation "definitely" did not take place. In view of the
denial by Allen and the corroboration of his denial by Alva
Jenkins, it is concluded that White must have misunderstood
what he overheard and that Allen's denial should be credited.
Consequently, it is further concluded that the General Counsel
has failed to prove the allegation of the complaint relating to
this contention.
(6) Allen's threatening White, on or about March 6, that if
the Union didn't get in, he and others wouldn't have any
jobs.
White testified that in his conversation with Allen about the
extra keys early in March, referred to hereinabove, the
following occurred.
He [Allen] said, just-well, first, he said, "Take it up
with your Union representative," and then later he said,
"You don't have to worry much longer. You won't have to
worry about keys much longer anyway. You better hope
the Union gets in here, because if they don't, and they
won't, a bunch of you guys won't be worrying about keys
anyway; you won't be worrying about jobs."
As indicated hereinabove, Allen denied White's testimony
relating to the question about the keys and White's testimony
was credited as to this portion of his testimony (with regard to
the conversation). Consequently, it is concluded that Respon-
dent, by Allen's statement to White, unlawfully threatened
employees with economic reprisal for adherence to the Union
in violation of Section 8(a)(1) of the Act.
Following are a considerable number of General Counsel's
contentions with respect to statements attributed to Respon-
dent of the consequences of unionization of the Respondent.
There are a great number of Decisions in which the Board has
considered whether statements by employers to employees of
the effect unionization may have upon the terms and
conditions of their employment were or were not violative of
Section 8(a)(1) of the Act.
The Board has stated, in Lenkurt Electric Company, Inc.,
169 NLRB No. 127, "It is well settled that an employer's
prediction' of untoward economic events may constitute an
illegal threat if he has it within his power to make the
prediction come true." While this formula appears to be "well
settled," it appears that there is considerable difficulty
applying it to particular cases. It would be a Herculean task to
set forth an analysis of the great number of cases in which the
Board has considered this problem. Based upon a study of
many of the cases, it is the opinion of the Trial Examiner that
a determination, in the circumstances of this case, as to
whether a statement of the economic consequences of
unionization falls within the protection of Section 8(c) of the
Act or is violative of Section 8(a)(1) of the Act, depends, on
the one hand, on whether the statement is not made in
immediate context with coercive conduct and contains a
reasonable explication of the economic basis for the statement,
or, on the other hand, upon whether it is uttered in the
immediate context of other conduct which is clearly coercive
or it is merely a bald assertion of "untoward" economic
consequences without explication. In Chicopee Manufacturing
Corporation, 107 NLRB 106, 107, a representation case, the
Board stated as follows-
The hearing officer found (1) that Plant Engineer
Halloway told employee Wagner, on May 1, 1953, that the
Chicopee Manufacturing Company could not pay the same
wage scales as the Petitioner had obtained at Personal
Products Company, also a subsidiary of Johnson & Johnson
Corporation, and that "if the union won, they would be
forced to move the plant," and (2) that Shift Foreman
Oliveira, in conversations with employee Baker, stated that
the Employer "could move the plant if they so desired."
Assuming that these statements were in fact made, we find
that they do not warrant setting aside the election. We view
these statements, under the circumstances, as nothing more
than predictions of the possible impact of wage demands
upon the Employer's business. A prophecy that unioniza-
tion might ultimately lead to loss of employment is not
coercive where there is no threat that the Employer will use
its economic power to make its prophecy come true.
In Bilton Insulation, Inc., 129 NLRB 1296, 1297, the Board
stated as follows
We do not agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
threatening its employees with going out of business in the
event it had to deal with the Union. The Trial Examiner's
finding is based on a statement which President Bilton made
in the course of a meeting with his employees on September
23, 1959. According to Bilton he advised the employees
that it was their privilege to become members of the Union,
but that in such event, and if he had to grant very many
additional benefits as the Union may require him to do, he
would overnight become noncompetitive and would not be
able to get jobs for his business. If the Company did not get
jobs the employees would not get work, and the Respon-
dent would be forced in such a situation to go out of
business. Employee Edward Alfred testified that Bilton
explained that no other insulation company in the area was
unionized, that the Respondent, if he had to pay the higher
union scale of wages, would not get any jobs, and that in
such a situation the Respondent could not keep it up and
would have to go out of business.
M & M CHARTER LINES, INC 617
Contrary to the Trial Examiner we do not find these
remarks of Bilton to be an open or implied threat of closing
his plant in retaliation against its employees' joining the
Union. We believe that under the circumstances Bilton
merely conveyed to his employees his interpretation of the
possible economic consequences to be expected if the
Respondent's business was unionized. His remarks appear to
us to be an expression of an analysis or prediction of things
to come rather than a threat of reprisal to force his
employees into abandoning the Union. Accordingly, we
shall dismiss the complaint with respect to the alleged
threat.
On the other hand, in Sanitary Bag & Burlap Company, Inc,
162 NLRB No. 151, the Board held that a supervisor's
statements to two employees "that the Respondent would
have to reduce some of its operations and lay off some of the
employees if the Union came in" and that the two employees
"might not eat" were found to be violative of Section 8(a)(1)
of the Act. Also in Crystal Tire Co., 165 NLRB No. 82, the
Board stated as follows:
The Trial Examiner found that Respondent had not
violated Section 8(a)(1) by engaging in the following
conduct: President Bauman's statement to employees
Lemuel and Elmer Massa that, if unionized, Respondent
would have to stop work on its new recap shop, that
Respondent could not keep all of its employees if it had to
pay union scale, that Respondent would have to shut down,
that Lemuel and Elmer Massa should join their brother at
the Chrysler plant if they wanted a union, that they would
be hurt by the Teamsters' contract, that Respondent could
not pay overtime at Teamsters rates, and that Respondent
would have to "cut everybody to 40 hours" if it had to pay
Teamsters' rates. The Trial Examiner concluded that these
remarks amounted to "a permissible expression of ... views
on" the "possible economic consequences" of having to
deal with the Teamsters. We disagree with the Trial
Examiner's conclusion.
In the context of Respondent's other unfair labor
practices, these statements by President Bauman, fairly
understood, were not mere predictions of the possible
economic consequences of unionization, but were threats of
economic loss to employees if the Union was selected as
bargaining representative. Accordingly, we find that by
these statements Respondent further violated Section
8(a)(1) of the Act.
The above cited cases are merely representative of the many
cases dealing with the subject and are not the sole authorities
which the Examiner studied in arriving at his above-stated
conclusions as to how the above-quoted rule in Lenkhurt
Electric Company, Inc., supra, is generally applied. The
resolution of the numerous contentions hereinbelow of the
General Counsel with respect to statements attributed to
Respondent of the economic consequences of unionization is
predicated upon the foregoing analysis of the Board's
Decisions. Thus, if a statement of economic consequences is
accompanied by a reasonable explanation of its basis and is not
uttered in immediate context with coercive statements or
conduct, it will be found to be protected under Section 8(c) of
the Act. On the other hand, if such a statement is a bald
assertion of "untoward" economic consequences without
explication or in immediate context with coercive statements
or conduct, it will be found to be violative of Section 8(a)(1)
of the Act.
(7) D. Mannino's threatening Fogle, on or about February
10, that if the Union came in, a number of employees
would be let go.
Fogle testified that on February 10, 1967, he went into
Dominic Mannino's office and stated to him that he was "100
percent for him and the company" because he could not
afford to be "cut down" in his hours, and that Mannino stated
"there would be certain ones that would be cut down." He
further testified that Mannino showed him a seniority list and
pointed out to him that he would be "somewhere around
position 20 on the seniority list." D. Mannino testified that in
two conversations he had with Fogle, Fogle informed him that
he was "100 percent" for the Company and that he did not
want to work under the Union. While Mannino did not
categorically deny Fogle's testimony about cutting down
hours, by his testimony, however, it appears he indicated that
their conversation did not extend to the matters of seniority
and cutting down of hours. Fogle's testimony is credible and it
appears likely that Mannino would make such a statement to
an employee who had indicated his opposition to the Union, in
order to strengthen that opposition. Consequently, Fogle's
testimony is credited, and it is concluded that Mannino's
statement constitutes a threat of economic reprisal in violation
of Section 8(a)(1) of the Act.
(8) Allen's telling Fogle in mid-February that if the Union
didn't win the election, White, Blando, and Gonzales would
be fired or their time cut.
Fogle testified as follows to a conversation he had with
Allen:
There was conversation-one was that if the Union did
not pass the election, that it was not voted in, that the
organizers-and he named Gene White, Ed Blando, Moses
Gonzales-those are the ones so far I can remember-they
would either be let go or their times would be cut. And he
also said that Gene White, which held a full-time school run,
would be the one to lose more than anybody, because there
would be higher men in seniority if the Union went through
that would take his run away from him.
Subsequently, in his testimony, Fogle added the name of
Pottorff to the names of the employees mentioned by Allen.
Allen categorically denied Fogle's testimony. Although neither
Allen nor Fogle was a convincing witness, it is the Trial
Examiner's opinion that Fogle's testimony on this point was
not fabricated and it is consistent with the evident animosity
of Allen toward the Union and union adherents. Consequently,
Fogle's testimony is credited and it is concluded that the
Respondent, by the aforesaid statements, did threaten
economic reprisals against employees for their adherence to
the Union in violation of Section 8(a)(1) of the Act.
(9) Don Mannino's telling Mayfield in mid-February that if
the union came in, the last eight drivers hired would be
fired and she was one of them.
Mayfield testified that sometime "between the middle and
the later part" of February 1967, she went to Don Mannino's
office to talk to him, and in the course of her conversation
with him, he stated that if the Union came in "the last eight
drivers that were hired would have to be let off" and that she
was one of them. To continue with her testimony, he
explained that he was only operating the "little handicap
buses" in order "to stay in good graces with the people in
Palos Verdes," that he "wasn't making money from them" and
that they "would have to be laid off because the salaries would
go up." She also testified he further explained that if the
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union came in, he would have to raise wages and would not be
able to compete with other companies. Don Mannino was
questioned about her testimony and testified that he did have
a conversation with Mayfield at the time and corroborated her
testimony as to portions of their conversation other than that
above outlined, but denied that there was any discussion with
her as to what the results would be if the Union were to
represent the employees. Inasmuch as the statements to which
she testified are consistent with statements which Mannino
admitted making on at least another occasion, particularly at a
meeting of employees on March 15, 1967, referred to
hereinbelow, her testimony is credited. It appears, however,
that his said statements were within the category of economic
predictions protected under Section 8(c) of the Act and,
therefore, it is concluded they were not violative of Section
8(a)(1) of the Act.
(10) Allen's interrogating Pottorff in early February about
his union activity.
Although it is not clear whether by this contention General
Counsel is referring to an incident to which Pottorff testified
occurred early in February near the lunch wagon in the
Company's lot, it is assumed to be so, since the record does
not contain testimony of any other incident to which this
contention might be referring. According to Pottorff's testi-
mony, there were six or seven people who witnessed the
incident, including Don Mannino. While Pottorff was standing
at the wagon, John Allen passed by, slapped him on the
shoulder and said "How is the union organizer?" Pottorff also
testified that at about the same time of the month he admitted
to Mannino that he was soliciting the cards for the Union after
he was accused of doing so by Mannino.35 Pottorff's above
testimony is credited. Inasmuch as he was known to be
engaged in soliciting cards for the Union, it appears that this
inquiry by Allen was nothing more than a sarcastic greeting
and cannot be considered to constitute unlawful interrogation
within the meaning of Section 8(a)(1) of the Act.
(11) Gregory's interrogating Pottorff in mid-February
about his union activity; and threatening that if the Union
came in, the charter list would be cut and Pottorff would be
at the end of the list and would not get work.
Pottorff testified that he had a conversation with Gregory
in the middle of February (after his aforesaid admission to
Mannino of his union activity). His testimony with respect to
this conversation is as follows:
He asked me, he says how come I wanted the union in
there and why was I for the union, and I stated a couple
reasons I felt were good reasons to him.
He says, "Well, you know if the union comes in, it will
make my job a lot easier."
I said, "What do you mean?"
And he says, "Well, we will just chop off the charter list
to about six drivers, and we will do away with the
commuter runs; they are not making us money anyway, and
I will have only a few drivers in to send out on trips, and I
will have a real easy job again."
Pottorff testified to another conversation with Gregory a few
days later when Gregory called him about taking a trip. His
testimony is as follows:
He told me about the trip and then he said, "Now, off
the record, John, between you and me, you really don't
want the union to come in, do you?"
I said, "Yes, I do."
He said, "Well, you know, if it comes in, they will move
you way down on the list, you will be about 13th on the
list and it will really hurt you."
I said, "Well, it possibly will."
Pottorff's above quoted testimony is credited. It is concluded
by Gregory's statements to Pottorff, Respondent engaged in
threats of economic reprisal in violation of Section 8(a)(1) of
the Act. However, in view of the fact that Pottorff had made
known to management his union views, it is concluded that
Greogry's interrogation was not coercive within the meaning of
Section 8(a)(1) of the Act, but must have reasonably been
understood by Pottorff as an attempt by Gregory to under-
stand why he was pro-union.
(12) John Allen's and Don Mannmo's telling Mayfield that
she wasn't supposed to talk about the Union on company
time or on company property.
(13) Don Mannino's telling Pottorff, on or about February
8, that Pottorff was not to engage in union activity on
company property or company time.
(14) Frank Mannino's telling employees, during February
and March, that they should not talk about the Union on
company property or company time.36
John Allen denied that he said anything to Mayfield about
not talking about the Union on company time or on company
property. However, Don Mannino testified that he gave
instructions to Mayfield and Pottorff, and Frank Mannino
testified that he gave instructions to the drivers to refrain from
such activity in the drivers' waiting room. Don Mannino
testified further that he had received complaints from
employees about the activity of Mayfield and Pottorff with
regard to the Union and that was why he gave them such
instructions. The record reveals that when drivers are in the
waiting room they are not working, but are merely waiting to
be dispatched. It is concluded that the prohibition was
unlawful since it extended to nonworking time in a nonwork
area and was, in essence, an unlawful no-solicitation rule
imposed in violation of Section 8(a)(1) of the Act.37
(15) Gregory's threats to Hart and McGuire in mid-
February that if the Union came in, there would be no
overtime after 40 hours, and there would be a cut in hours.
Richard Hart testified that, around the middle of February,
McGuire and another person were present when he had a
conversation with Gregory. His testimony with respect to the
conversation was as follows:
A. I asked Mr. Gregory what he thought of the Union
coming in. He said he didn't care one way or the other, it
wouldn't hurt him really, but if it did come in we would
probably go down to 40 hours a week, no overtime.
Q. Did he say anything else during the conversation?
A. Not that I can recollect.
Subsequently, he added the following testimony with respect
to the conversation:
A. No, then the rest of the conversation come out, that
we would probably go down to 40 hours, `cause business
35It does not appear that this aspect of Pottorff 's testimony is relied relating to these incidents , they were fully litigated.
upon by the General Counsel in his brief as a violation of Section 37 The record does not reveal that the prohibition imposed was
8(a)3(6) of the Act. necessary to preserve production or plant discipline . Cf. Hicks Ponder
Although there are apparently no allegations in the complaint Company, 168 NLRB No. 103.
M & M CHARTER LINES, INC. 619
would fall off `cause there was no set rate as to what the
other people could charge, and they would just under-cut.
THE WITNESS: Oh. No. Well, he [Gregory] said - yes,
he did, too He said that M & M right now has approximate-
ly all their buses on the road and still calling other com-
panies for more. He said that if it went Union, we would
probably have ours sitting in the yard and somebody else
would be calling for buses because they were just under-cut.
Q. (By Mr. Simpson) Did they explain how the
undercutting might come about?
A. They just bid lower on the job.
Q. Who would bid lower?
A. Who would bid lower? The people that own the
companies, the different companies, like California Charter,
so on and so forth.
Q. These would be companies other than M & M; is that
right?
A. Yes, sir.
Q. And did he say why he thought they could bid
lower?
A. Because they wouldn't have to pay the Union scale.
Q. And so, then, did he say what that would then lead
to as far as M & M drivers are concerned?
A. Probably would be layoffs and a cut in hours.
Q. Did he say why that might happen?
A. If a man doesn't have any work, he can't put you to
work. In other words -
Q. Did he say that?
A. Something to that effect. If there is no work for Mr.
Mannino to give you, then he can't go out on the road.
This testimony which was substantially corroborated by
Gregory is credited. It is concluded that Gregory's statements,
in view of the explanation of the economic bases therefor,
constituted predictions within the protection of 8(c) of the
Act.
(16) Don Mannino's threats to Diehl in early February that
if the Union came in, the drivers would only be getting 40
hours a week.
Diehl testified that he had a conversation around the first of
February with Don Mannino in which Mannino asked him if he
were going to quit if the company "goes Union," and that he
said no; that Mannino asked him if he had been contacted by
the Union to which he replied in the affirmative; that Mannino
said there were two or three drivers "who were going to quit"
if the company did go Union; that he asked Mannino "Who
would be crazy enough to do that?"; that Mannino named two
drivers; and that he told Mannino that he would not quit,
"that he was going to ride it out; he couldn't drive me off," to
which Mannino replied, "Well I sure hope not." Diehl's
testimony continues as follows:
I believe the man was encouraging me to stay rather than
to quit. And he also told me that they had a Union in San
Francisco. He could live with the Union; that they had a
good bunch of boys in San Francisco. But he went on to
say that we would only be getting 40 hours a week if we
went Union, because the rates didn't warrant any overtime
pay, their competitive rates didn't warrant it.
And on that note, that was the way the conversation
ended, as near as I can remember.
It is concluded that Mannino's statement about cutting to 40
hours constituted an economic prediction within the protec-
tion of Section 8(c) of the Act.
(17) Gregory's threats to Robert Jackson in mid-February
that if the Union came in, the drivers would be limited to
40 hours a week.
Jackson testified to a conversation he had with Gregory in
mid-February at the window of Gregory's office. His testi-
mony is as follows:
A. Well, Bill asked me if I could live on 40 hours a week,
and I told him at the time, "Hell, yes. I'm living on less than
that now."
TRIAL EXAMINER: Was there anything else that was
said either before or after to explain what he meant by his
statement?
THE WITNESS: Well, I believe the way I understand it,
that if the Union came in, there would only be 40 hours.
TRIAL EXAMINER: Did he say anything about it?
THE WITNESS: No.
TRIAL EXAMINER. He just blurted out if you could
live on -
THE WITNESS: Yes, sir.
Jackson's testimony is credited. It is concluded that Gregory's
blunt question as to whether he could live on 40 hours a week
without explanation constitutes a threat in violation of Section
8(a)(1) of the Act.
(18) Allen's threats to Gonzales during a number of
conversations, beginning at the time the petition was filed
until shortly before the election, that the employees would
hurt themselves by "going union" and their hours would be
cut.
Gonzales testified that he had "numerous" conversations
with Allen during the organizational campaign. His testimony
as to the gist of these conversations is as follows:
A. Talk got around to the Union. He asked me if I was
for the Union, which I would always say yes. He would
reply how stupid we were to think a Union could do us any
good. And he'd actually run down-well, he'd just talk
against it. How we were hurting ourselves. How we would
get cut down by the hours, and how they could hire better
drivers if they had to pay a little more money, could hire
better drivers than what he had there now. And this
continued on day after day, almost the same line of
conversation.
Allen testified that he did have numerous conversations with
Gonzales about the possibility of unionization and that they
"would just banter back and forth." Allen did not categori-
cally deny the above-quoted testimony of Gonzales which is
credited. Based upon the above analysis of Board Decisions
involving statements with respect to the economic conse-
quences of unionization, it appears from the above-credited
testimony of Gonzales that Respondent did engage in threats
violative of Section 8(a)(1) of the Act.
(19) Gregory's threats to Gonzales during a number of
conversations, beginning after the petition was filed until
shortly before the election, that if the Union came in,
commuter runs would be cut and nobody would work more
than 40 hours a week.
Gonzales testified to various conversations he had with
Gregory with respect to the Union, all of which were similar in
nature. His testimony as to the gist of these conversations is as
follows:
Came in one night, and Gregory told me how I felt about
the Union, and I told him I was for a Union and I didn't
have nothing to hide, and then he started telling me how a
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union would affect our place where we work there, spoke
out against it, and said-I was on a commuter run at that
time-he said it would be cut ; that the Company wouldn't
be able to afford to pay us to run these buses if a Union
came in.
And I told him-he told us nobody would work more
than 40 hours a week , and that was the same type of
conversation we had three or four times I talked with him
about it.
Gregory testified that his conversations with Gonzales were in
the nature of "joking." Gregory testified as follows.
Moe used to carry on with a lot of the drivers , and Moe
would say, "Yeah , I'm voting for the Union." And I'd say
to Moe, "Wonderful , Moe. Wonderful . Wonderful, Moe.
We'll all live on eight hours a day." That's the exact words I
said to Mr. Gonzales.
The testimony of Gonzales is credited and it does not appear
from his credited testimony that the conversations could
reasonably be characterized as "joking." However, according
to Gonzales' testimony , Gregory did explain the economic
basis for his opinion that the hours would have to be cut and,
therefore , it is concluded that his statements with regard
thereto were economic predictions within the protection of
Section 8(c) of the Act.
(20) Gregory's threats to Fogle and Blando in early
February that if the Union got in, there would be no
guarantees and employees would be cut to 40 hours a week.
Fogle testified that at the beginning of February he had a
conversation with Gregory at his office window , that Blando
and someone else were present, and that they "were talking
about the Union ." Fogle testified as follows:
Mr. Gregory said that anyone who had any full-time
school runs would not be guaranteed the amount of
guarantee that they were now receiving , and that I, having a
six-hour guarantee a day, would not have a six-hour
guarantee any more, and that Mr . Mannino was not in the
position to support a Union when it came in.
THE WITNESS : Well, he said if the employees voted the
Union in, all employees would be knocked off, because Mr.
Mannino wouldn ' t be able to guarantee anything , because
the Union would ask too much of a wage.
Blando testified that he overheard part of the conversation but
it cannot be ascertained in what context the statements he
heard were uttered. Therefore, it is deemed inappropriate to
consider his testimony . Gregory testified that Fogle stayed at
his window every day and talked to him about the Union but
he could not remember the content of their conversations.
However, subsequently , Gregory testified as follows:
Q. How did these conversations normally commence?
A. Well, he would come up there at the window, and he
would start the conversation , "I wish they 'd leave me alone.
I'm happy with my job here. I don't want no Union here. I
don't think we need one here." He says, "I'm real happy. I
wish they'd leave me alone." He'd walk away from the
window a couple few minutes, and he'd come back up and
say something else, sir. But part of it I didn't pay any
attention to, because I had quite a bit of work to do.
There is no conflict in their testimony and consequently
Fogle's testimony is credited as is Gregory's. It is concluded
that Fogle frequently solicited Gregory's opinion as to the
effect of unionization and that this was the case with respect
to the above conversation to which Fogle testified . In such
circumstances and in view of the fact that Gregory attempted
to explain the economic reasons for cutting down on
guarantees , it is concluded that General Counsel has not
sustained the burden of proof of the allegation to which
Fogle's testimony is related.
(21) Gregory 's threats to Fogle on or about February 10,
that if the Union got in, Fogle wouldn 't work any more
than 40 hours a week.
Fogle testified that he called Gregory on a Friday night
during the course of a weekend run to report mechanical
difficulties with his bus . Fogle testified further to their
conversation as follows:
And then he came into the conversation by saying
that-he said , "You like weekend work like this, don't
you?"
And I said , "Yes, I do."
And he said , "Well, if we go Union, you will not receive
any more than 40 hours a week." At that time I was getting
in between 50 and 55 hours a week.
Gregory testified that their conversation was as follows:
Mr. Fogle says , "Boy, I really better enjoy myself up
here this weekend . It will probably be the last weekend I'll
ever get back up here again."
And I says, "Well , what do you mean by that, Bob?"
And he says , "Well, the Union will come in and they'll take
my hours away from me."
I says, "Bob, it might be the last trip you'll ever get up
there. We all might die. We don 't know." I can remember
this. "This is costing me money. Let's get off the phone."
It is evident from a study of the record that Fogle vacillated in
his opinion as to the desirability of having union representa-
tion and that he was concerned as to what effect it might have
on the number of hours he would work. Furthermore, it
appeared to the Trial Examiner that Gregory was a more
convincing witness as to this particular incident . Consequently,
Gregory's testimony is credited and it is concluded that
General Counsel has failed to sustain the burden of proof of
the allegation relating to this contention by the General
Counsel.
(22) Allen's threats to Fogle in early February that the
runs would be cut if the Union came in.
Fogle testified as follows to a conversation he had with
Allen around the first part of February.
Well, there was three of us standing there-Moses Gonzales,
Garth Shomler , and myself-and we were kicking around
the fact of the Union. And I says, "Well , I don't see how
Mr. Mannino could cut any runs that were already set up
and guaranteed, just because the Union took over.
And Allen told them that he would do what he wanted,
that no Union could tell the Employer what to do. And he
said there should-that there sure would be, that all the runs
would be cut.
Allen testified that he did not recall any conversation with
Fogle in which the subject of the Union was discussed in the
presence of Gonzales and Shomler. Fogle's above-quoted
testimony is credited, since this aspect of his testimony
appeared convincing to the Trial Examiner and it is consistent
with Allen's outspoken antagonism toward the Union. Conse-
quently, it is concluded that, based upon the above-credited
testimony of Fogle, Respondent , through Allen , threatened
economic reprisal in violation of Section 8(a)(1) of the Act.
(23) D. Mannino's threats to Blando on February 20 that if
the Union got in, the employees would be cut to 40 hours a
M & M CHARTER LINES, INC. 621
week and there would be no more commuter runs.
Blando testified that on February 20 he had a conversation
with Don Mannino during the course of which Mannino asked
him "Can you live on 40 hours a week." His testimony as to
what ensued is as follows:
And I said, "Why?"
And he says, "Well, if the Union gets in, that's what
you're going to have to do. There will be no more
commuter runs; they'll all be split up"-which they pay 10
hours right now; they will be all split up eight hours,
maybe. He says, "What are you going to do then?"
I said, "Well, I'll go get something else." Well, I meant
part-time work. So he says, "Well, you're going to-this
place up and then go someplace else."
Q. Do you recall anything else that was said?
A. Oh, he said-I says to him, "What can I do, Don?"
He says, "Well, you're going to vote," he says, "and your
vote counts. That's one vote."
I just walked out, laughed and walked out.
Mannino testified to their conversation as follows:
Q. In your conversation did the subject of the union
come up?
A. Yes.
Q. What was said , and by whom?
A. Well, I don't recall how we got on the subject, but I
told him I found it very difficult to understand why the top
men-particularly him, who earned between $175 and $250
a week, would even entertain the idea of the union, and he
said, "Well, we got a few gripes."
And I said, "I don't know of any major ones. No one has
ever come in with a major one." You know, they habitually
beef at work, you know.
He wanted time and a half. I said, "Well, that is another
world." I didn't know how many others of my competitors
paid time and a half. I didn't know that very many of them
had, and I said, "You know, basically, it certainly isn't my
criteria or reference to assume, but basically they represent
a 40-hour week."
And I told him-I think at that time we were paying
$2.50 on charter. I said, "Even if you got a 50 cents an
hour raise, how would you live on 40 hours at $3 an hour?"
TRIAL EXAMINER You said something about your
understanding was the union was 40 hours a week?
THE WITNESS: I told him that basically the union has
the reputation for instituting 40-hour weeks. They do that
by an overtime provision for time and a half over 40 hours.
TRIAL EXAMINER This is what you told him?
THE WITNESS Yes. I said, "When you go for an
overtime provision, generally speaking, you have created a
40-hour week." This was the message I was trying to get
across to
Q. (By Mr. Simpson) What did you say to him?
A. I think this is what I said to him. And I said, "Even if
you got a 50-cent raise-the union can negotiate for you a
50-cent raise -how in the world would you live on 40
hours?"
I am talking to a man that takes home $200 a week.
Q. What did he say to that?
A. He just shrugged his shoulder. He had no answer.
Q. Was there any discussion at that time about the
union in San Francisco?
A. No.
Q. Was there any other discussion between you and him
on the subject of the union at that time?
A. Not that I recall.
Q. How about the election?
A. No. We never talked about the election.
In the Trial Examiner's opinion Mannino was the more
convincing of the two witnesses as to this incident. Further-
more, Mannmo's version of what was said appeared to be the
more likely of the two versions, in view of the evident care
which Mannino generally took during the period material
herem to explain the economic problems. Consequently,
Mannino's testimony is credited and it is concluded therefrom
that his statements to Blando as to the effect of union
representation were predictions within the protection of
Section 8(c) of the Act.
(24) Gregory' s threats to Jiminez , a week prior to the
March 17 election, that the drivers would not benefit by
joining the Union because their hours would be cut.
Betty Jo Jiminez testified that during the early part of
March 1967, she went into Gregory's office to ask him about a
charter trip and that at that time he asked her what she
thought about the Union. Her testimony continues as follows:
I told him I didn't know. I have never been Union
before. And I was not familiar with it, and just didn't really
know.
A. Well, at that time he says the drivers would not
benefit by joining the Union because of their hours would
be cut down.
* * * * *
A. And I did ask him what would happen if we did go
Union, because the school bus drivers if they should go on
strike, how would this affect the Company. And as far as
the school routes were concerned.
And he said that they wouldn't necessarily need school
bus drivers to cover their runs; that they could get anyone
from the Union Hall with a Class 2 license and cover the
school bus runs and run them as a charter to get the kids to
school.
Her testimony is credited and it is concluded therefrom that
Respondent, through Gregory, engaged in unlawful interroga-
tion and a threat of economic reprisal in violation of Section
8(a)(1) of the Act. However, it does not appear that his last
statement to her was violative of the Act, since it was, in
answer to her question of what would happen if there were a
strike, an explanation that the Company could hire replace-
ments.
(25) Allen's threats to the employees at the February 9
meeting at the Hacienda that if the Union got in, the
Company would cut down all the hours; the 9-hour run
would be cut to 6; the 6-hour run, to 4; the handicapped
buses would be cut off, the last eight people hired would be
laid off; and the women wouldn't get more than 40 hours a
week.
The record reveals that Allen attended a breakfast meeting
of a group of the women drivers to give them his opinion with
respect to the effects of union representation, and that he did
so at their request. The record further reveals that it was made
clear to the group assembled that he was not speaking for
management but was giving his personal opinion. In view of
these circumstances, the social nature of the meeting, and in
further view of the fact that, although Allen was found to be a
supervisor within the meaning of the Act, he served as a
supervisor only in a minor capacity, it is concluded that the
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements he made in the course of the meeting were not
coercive, but rather were within the category of opinions
protected under Section 8(c) of the Act. Toma Studs Co., Inc.,
170 NLRB No. 48. It is noted that, while Allen did pay for the
breakfasts and was reimbursed thereafter by Mannino, it is
deemed that this is not of sufficient significance to alter the
finding that his statements could not reasonably have had a
coercive effect upon the women drivers.
(26) Selvin's threats to the employees at the March 15
meeting at Luigi's that she wouldn't sign a contract with the
Union, and she would hold up a contract indefinitely.
The Respondent held a dinner meeting of its employees at a
restaurant on March 15, 1967, 2 days prior to the election.
Mayfield testified that Gladys Selvin, labor consultant em-
ployed by Respondent, who spoke at the meeting, stated that
she had been fighting the unions for years and that she would
not sign anything until she got what she wanted and that it
might take months. Betty Jackson testified that Selvin stated
at one point that "she had never been able to agree with the
union and sign a contract38 and that she held up one company
for 3 years." Robert Jackson testified that Selvin said she was
definitely against unions and that she could hold up a union
contract indefinitely.
Selvin testified that she told the employees at the dinner
meeting that the union and the employer have the obligation
to bargain in good faith and, if they came to an agreement, to
sign a contract; that neither the union nor the employer is
compelled to accept the proposal of the other party and make
concessions; that in one case involving the Crown Coach
Company she bargained with the Union for 3 years and after 3
years the union charged that she had not bargained in good
faith, and that, after a hearing on the complaint, the Board
found that she had bargained only in bad faith on one minor
issue (the duties of the supervisors). She further testified that
she told the employees that if the Union won, she would
bargain in good faith; that she had negotiated a number of
contracts with the Union on behalf of other employers and she
said that she "had been dubbed by a Trial Examiner as a tough
negotiator which he said was permissible."
It appears from the above-credited testimony of the three
employees and Selvm that the employees attending the
meeting reasonably understood that, while she would bargain
with the Union if it won the election, she intended to prolong
the negotiations for a contract. It is concluded that such an
intent is contrary to the meaning of bargaining in good faith
under Section 8(a)(5) of the Act, and that by conveying such
an intent she attempted to discourage their adherence to the
Union and thereby interfered with, restrained and coerced
employees within the meaning of Section 8(a)(1) of the Act
(27) Don Mannino's threats to the employees at the March
15 meeting that (1) he knew some companies that were
put out of business because of the Union and his statement
to the effect you never know what might happen to
Respondent, (2) that if the Union came in, he would have
to raise prices, charge more for buses and, therefore, they
would lose business and he would have to shut down; (3)
and that they would have to wear uniforms if the Union
came in.
38This portion of Jackson 's testimony is not credited , since the Trial
Examiner is of the opinion that it was what she understood was said
rather than what Selvin stated.
In his brief General Counsel summarized the testimony
which he believes supports this contention as follows.
Don Mannino, in response to questions, said the unions
couldn't do much more for them than he could and that if
the Union came in, he would lose business because he
would have to raise his prices. Don Mannino said that he
wasn't saying that a union would put them out of business,
but he knew some companies that were put out of business
because of the Union. He said that he wasn't saying that the
same thing would happen to them, but "you never know."
Mannino went into considerable detail to explain the economic
reasons for his statements and it is concluded that his
statements during the course of the meeting fall within the
category of opinions or economic predictions protected under
Section 8(c) of the Act.
(b) The posting of antiunion propaganda: The record
reveals that subsequent to the filing of the petition for an
election two antiunion pictures were posted briefly on the
company bulletin board in the drivers' waiting room One was
a picture of James Hoffa with a noose drawn around his neck
and the other was a picture of women picketing. The record
reveals that Respondent attempted to prevent the posting of
any propaganda either for or against the Union on the bulletin
board. The record does not clearly disclose who was
responsible for posting the aforesaid pictures on the bulletin
board. However, it appears that subsequent to removal of the
second picture from the bulletin board, it was posted on the
inside of the window of the school bus division office so that it
would be seen from the drivers' waiting room. It appears from
the record that Allen was responsible for its posting in the
window. The picture and caption underneath it were from a
newspaper. The picture was that of women wearing masks
picketing the Sacramento offices of a Teamster local. The
caption explained that the women "were protesting irregular-
ities in the local and national leadership for their working
husbands." There had been added to the newspaper picture
and caption the handwritten statement "This could be your
wife." In his brief, the General Counsel contends, "The import
of the picture was clear-that if the Union got in a strike was
inevitable." There appears to be little merit to this contention.
It is far from reasonable to assume that a picture of women
picketing a Teamster local's headquarters because of union
irregularities would convey to the drivers that, if the Company
were unionized, a strike against the Company would be
inevitable. It is concluded that the posting of the photo and
caption clipped from a newspaper with the handwritten
warning was no more than campaign propaganda and did not
constitute interference, restraint or coercion within the
meaning of Section 8(a)(1) of the Act.
(c) Unlawful surveillance of a union meeting: The record
reveals that on the evening of March 14, 1967, the Union held
an organizational meeting at the union hall on Locust Street in
Long Beach. At a time when a number of the employees were
standing in front of the hall just before the start of the
meeting, Gregory drove by in his car. One of the employees
recognized him and called the fact of his presence to the others
who were gathered on the sidewalk. Betty Jackson testified
that Gregory was looking at the employees as he drove by. The
record also reveals that employee James Stafford was a
passenger in the car at the time. Stafford testified that as they
drove past the union hall he recognized it and that he also saw
several men standing on the sidewalk. He further testified that
he recognized one of the men and that he mentioned to
M & M CHARTER LINES, INC.
Gregory that they had just passed the union hall. Gregory
testified that he had no recollection of driving past the union
hall. Both Gregory and Stafford testified that Stafford had
been talking to Gregory about getting a job with Greyhound,
that Gregory had invited him to meet two of Gregory's friends
who worked for Greyhound with whom he had an appoint-
inent, and that they were to meet at a Greyhound parking lot
which was at the end of Locust Street. However, a study of the
maps of the area shows that Locust Street is not a through
street, and it was stipulated that just beyond the union hall it
becomes a one-way street in the opposite direction to the one
in which Gregory and Stafford were proceeding. In the opinion
of the Trial Examiner it would be overextending the long arm
of coincidence to credit the testimony of Gregory and Stafford
that they inadvertently drove by the union hall, particularly in
view of the circumstances that Locust Street was not the
logical thoroughfare to use to reach their planned destination
and that they drove by the union hall just before the meeting
was scheduled to start. Furthermore, their testimony in
explanation of the coincidence was not convincing. Conse-
quently, it is concluded that Gregory's action was not
inadvertent and that it constituted unlawful surveillance, or
created the impression of surveillance, in violation of Section
8(a)(1) of the Act.
5. The discharge of Robert Fogle
Robert Fogle was discharged on March 10, 1967. Consider-
able testimony was introduced into the record concerning the
events leading up to the discharge of Fogle. Rather than set
forth the various versions as to the incidents which precipi-
tated the discharge, there is set forth hereinbelow an account
of what occurred based upon those portions of the testimony
which the Trial Examiner credits.39
Before setting forth said account, the following facts should
be noted: on a number of occasions prior to his discharge,
Fogle indicated to management his opposition to the Union; it
does not appear that Respondent believed or suspected he was
active on behalf of the Union, however, shortly before the date
of his discharge, Fogle protested to Allen the posting of
antiunion propaganda.
On the morning of March 10, Fogle protested the
newspaper clipping that was posted on Allen's window and
threatened to tear it off, and Allen warned him not to do so
Fogle left the building, and went into the street where he
spoke to Billodeaux, the Union's business agent. Billodeaux
asked him if any NLRB election notices were posted and Fogle
told him that there were not. Billodeaux gave Fogle some
copies of the election notices. Fogle then returned to the
drivers' waiting room with the notices and attempted to post
one. Allen informed him that if he attempted to hang it up, he
would tear it down, that it was the responsibility of Mannino
to post it. Fogle said he would hang it on his locker, and Allen
replied that Fogle could not do so because it was also company
property. Fogle then approached the bulletin board and
started to post one of the election notices. Allen reached over
39There is little contradiction in the testimony, except as to the
force of Fogle 's blow and as to whether Allen stated he had been
looking for a reason to discharge Fogle. Fogie 's testimony that_he
623
Fogle's shoulder and ripped part of the notice from Fogle's
hand, bumping him slightly in the process of doing so. Fogle
immediately swung around and struck Allen in the face with
the back of his left hand in which he was holding other copies
of the election notice. Allen shouted that Fogle was fired.
Fogle said that he would not leave until he got his paycheck,
and that he would hold the keys of the bus until he was paid.
Allen then called Don Mannino and reported the incident to
him. Mammno instructed him to give Fogle's run to another
driver and to have Fogle wait until he arrived. Mannino arrived
about an hour later and asked Fogle to come into his office.
Fogle inquired whether he was fired. Mannino asked hun what
had happened Fogle told hum that he had attempted to post
the election notice he had obtained from Billodeaux, that
Allen had ripped it down and that he had hit Allen with some
paper. Fogle insisted on knowing whether he was fired and
wanted his check. Mannino informed him that he would not
make a determination until he investigated the incident. Since
Fogle insisted on being paid, Mannino gave him a check for the
amount it was figured was due to Fogle up to that date.
Mannino then interviewed several of the drivers who had
witnessed the incident. Fogle called Mannino on two occasions
that day to ascertain his decision. On the first occasion,
Mannino told him that he had not made up his mind, that he
was still investigating the matter. On the second occasion, he
told Fogle that he had decided to fire him for striking Allen.
It is concluded that General Counsel has failed to sustain
the burden of proof that the discharge of Fogle was unlawfully
motivated within the meaning of Section 8(a)(3) of the Act or
that he was refused reemployment in violation of said Section.
It is found that the motivation for the discharge was Fogle's
striking of Allen and this act was not seized upon as a pretext
for discharging him. The General Counsel argues that Fogle's
conduct was "provoked" by Allen's attempt to prevent Fogle
from posting the election notice. Granted that Fogle's striking
of Allen was in retaliation for Allen's tearing the election
notice from Fogle's hand, nevertheless the retaliation was an
excessive response to the "provocation." In any event, the
issue is not whether Fogle was or was not justified in striking
Allen, but rather whether the discharge was unlawfully
motivated. In view of Mannino's thorough investigation of the
incident before coming to the decision to discharge Fogle and
the entire circumstances, it is concluded that the discharge was
for disciplinary reasons and that there is no basis for
concluding that Allen attempted to goad Fogle into attacking
him in order to provide Respondent with a cause for his
discharge in concealment of an unlawful motive.
6. The termination of Mayfield's employment
On or about March 24, 1967, Eleanor Mayfield, a school
bus driver, gave Frank Mannino, head of the school bus
division, 2 weeks' notice that she was leaving Respondent's
employment. On April 3, she told Mannino that she had
changed her mind about leaving and would like to continue her
employment. On April 7, the end of the 2 weeks of her
merely brushed Allen's face with the paper he was holding and that
Ailed made the aforesaid statement is not credited.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid notice, she was notified that the Respondent would
not reverse its acceptance of her resignation and that it
"cannot grant" her reemployment. The General Counsel
contends that "the real reasons and moving cause of Mayfield's
termination were her known union activities."
Although the record does not reveal that Mayfield was
active on behalf of the Union, the record will support a finding
that Respondent suspected her of, at least, being pro-union.
She attempted to promote the idea of a debate between
representatives of management and Union, and it was found
hereinabove that she was one of the individuals whom Don
Mannino unlawfully told to stop discussing union matters in
the drivers' waiting room. However, despite these findings, it is
concluded that Respondent's acceptance of her resignation and
refusal to reconsider her employment were not unlawfully
motivated.
The record reveals that she did not have a good record as a
driver. On March 9, she was warned of two cases of excessive
tardiness in making her assigned runs, a failure to appear for an
assigned run and two "chargeable accidents." It further
appears that she was excessively tardy for another assignment
subsequent to the letter of March 9. She testified that on April
3, when she told Mannino that she would like to remain in
Respondent's employ, Mannino told her that they were glad to
have her because there was no one to replace her, since the
man who was supposed to do so never called back. Mannino
testified that sometime prior to April 3 he notified her
replacement, who was Robert Keenum, that he should arrange
for qualifying for employment, that he was given some
training, a physical examination and arrangements were made
for him to obtain his license. The parties stipulated that
Keenum applied for employment on March 19, 1967, and was
hired on April 3, 1967, the very day that Mayfield testified she
was told by Mannino that he would be glad to have her back
because her replacement had not reported. The record reveals
the existence of the practice of the Respondent to require
training (where necessary), physical examination and obtaining
of a license before hiring which corroborates Mannino's
testimony that her replacement was being processed prior to
April 3. There is no basis for inferring that Keenum was not
hired as Mayfield's replacement. Therefore, Mayfield's testi-
mony as to the statements Mannino made to her on April 3
cannot be credited. Mannino testified, and his testimony is
credited, that he did tell her on April 3 that he would think
over her request to withdraw her resignation.
Mayfield received a letter on April 7 notifying her that the
Company would not reconsider the acceptance of her
resignation because her replacement had been hired and
because of deficiencies in her driving record. The said reasons
were well documented and it does not appear that there is a
sufficient basis to draw the inference that they were merely
pretextual. Consequently, it is found that the General Counsel
has failed to sustain the burden of proof of the allegation that
Mayfield's employment was discriminatorily terminated or
that she was refused reemployment, in violation of Section
8(a)(3) and (1) of the Act.
40In addition the record indicates that on a number of occasions
during these nine pay periods Pottorff either refused assignments or was
unavailable for assignments . Quite a few of such occasions are set forth
7. The termination of Pottorff's employment
By letter dated April 11, 1967, Pottorff, with the aid of the
Union, wrote as follows to Respondent:
At this time, due to discrimination against me, I wish to
tender my resignation as of this date. The discrimination
against me is for supporting union activities in the recent
NLRB election. I consider this a constructive discharge
rather than a voluntary termination by me.
Please be advised that I wish to resume employment
when you cease discrimination against me. I can be reached
at my home address and telephone number which is listed
below.
It appears that on April 11, 1967, Pottorff applied to Airport
Transit for employment and was hired. It further appears that
the letter was not mailed until April 14 and was not delivered
until Monday April 17. The letter was sent by certified mail
and apparently an unsuccessful delivery was attempted on
April 15, when notice was left. Also on Monday, April 17,
Respondent received a letter from Airport Transit indicating
that Pottorff had been employed by that company. On April
20, Respondent sent Pottorff a letter stating that it considered
that Pottorff had voluntarily terminated his employment and
that it would not consider his reemployment.
General Counsel contends that Pottorff was constructively
discharged by reason of the discriminatory treatment Respon-
dent gave Pottorff after its discovery of his union activities and
pro-union sentiment on or about February 8, 1967. Pottorff
testified that after said discovery his hours were cut in half,
that he was given a disproportionate amount of undesirable
charter trips and that he was frequently assigned inferior buses
In addition, the General Counsel contends in his brief that two
other employees who were hired after Pottorff received
considerably more work than Pottorff. A review of the record
reveals the following facts: Pottorff's average earnings for 7
day periods up to the one ending February 11, 1967, were
$62.25 per week. For the following 9 pay periods after the
discovery of his pro-union activity and sentiments to the end
of his employment Pottorff averaged $60.60 per week 40
Thus, it is found that there was no significant difference in
Pottorff's work hours after Respondent's discovery of his
union activities and sentiment.
It appears from Pottorff's cross-examination and the
records of the Company that Pottorff did not receive such a
significantly large number of assignments of undesirable runs
and inferior buses as to permit the inference that he was
discriminated against by Respondent in these matters. Further,
it does not appear that there is much merit to General
Counsel's contention that Pottorff was unlawfully discrimi-
nated against by virtue of the fact that he received less work
than Kirksey and Stafford who, General Counsel claims, were
hired after him. It should be noted that neither of the two was
a new employee; from Gregory's credited testimony, it appears
that both Kirksey and Stafford had previous periods of
employment with Respondent. Furthermore, for the seven pay
periods preceding the discovery of Pottorff's union activities
in the aforesaid letter from the Respondent to Pottorff dated April 20,
1967 . It should be noted, however , that the Trial Examiner does not
rely on the letter as proof of the truth of its contents.
M & M CHARTER LINES, INC.
and sentiment on February 8, Stafford consistently earned
considerably more than did Pottorff, as did Kirksey for the
approximately 3 weeks he worked prior to the discovery of
Pottorff's prounion activities and sentiment. It is also noted
that for the first full pay period after February 8, Pottorff
received the second highest weekly paycheck of those he
received for the last 16 pay periods he worked.
Consequently, it is concluded that the General Counsel has
failed to sustain the burden of proof that Pottorff was
constructively discharged or refused reemployment in violation
of Section 8(a)(3) and (1) of the Act.
8. Warning notice to Ed Blando
Blando testified that on March 12, 1967, he told Gregory
that the posted picture of women picketing had just bought a
"yes vote" for the Union, and that when Gregory asked him if
he was going to vote for the Union, he replied that he was.
Gregory admitted that the conversation took place but could
not remember the date. Blando further testified that on the
following day, March 13, he received a warning notice. The
warning notice, however, was dated February 13 which date he
crossed out and substituted that of March 13 for it. The notice
referred to three matters, occurring December 16, 1966,
January 15 and February 11 or 13, 1967.4 i Blando's above
testimony is uncontradicted and is credited. When Don
Mannino was questioned with respect to the issuance of
written warning notices he testified that with the advent of the
Union the "rules of the game" were changed. In view of all of
the foregoing, particularly the timing of the notice one day
after his prounron attitude was discovered covering matters
which occurred a month to 3 months earlier, it is concluded
that the issuance of the warning notice to Blando was
discrimmatorily motivated and violative of Section 8(a)(3) and
(1) of the Act. Lifetime Door Company, 160 NLRB 319, 323.
9. Alleged unlawful refusal to bargain
In view of the finding hereinabove that the General Counsel
has failed to prove that at any time material herein, and
particularly on February 11, 1967, the Union represented a
majority of the "eligible voters" in the appropriate bargaining
unit, it is concluded that Respondent was under no obligation
to recognize and bargain with the Union. Consequently, it is
concluded that the Respondent did not violate Section 8(a)(5)
and (1) of the Act, as alleged in the complaint.
10. The objections to the election
By order dated October 16, 1967, the Board directed that a
hearing be held in the aforesaid Case 31-RC-473 on the issues
raised by objections 2 through 10 filed therein by the Union.
The following are said objections and conclusions with regard
thereto.
2. Since on or about March 10, 1967, the Employer has
discouraged membership in the Petitioner by discharging,
and by refusing to employ Robert Fogle, its employee, and
by discriminating in employment opportunities tendered to
41 The third matter is referred to in the first paragraph as having
occurred on the day the letter was dated , February 13, but is again
referred to in the next to the last paragraph as having occurred on
February 11.
625
John (Garland) Pottorff, its employees, because of their
membership in, and activities in behalf of the Petitioner.
In view of the findings hereinabove that the Company did not
discriminatorily discharge Fogle and did not discriminate
against Pottorff in his employment opportunities, it is
concluded that this objection is without merit.
3. The Employer informed employees that if the Union
came in he would cut them to forty hours of work per
week.
In view of the several findings hereinabove that the Respon-
dent violated Section 8(a)(1) of the Act by threats of
economic reprisal such as the cutting down of the workweek,
it is concluded that this objection is meritorious.
4. The Employer stated to employees that he had hired
a "union buster".
Although there is testimony that Mannino made a statement to
an employee that he had hired a union buster, said testimony
is not credited and it is concluded that this objection is
without merit.
5. The Employer accused employees of having been
responsible for bringing the Union in.
It appears that there is credited testimony which tends to
support this objection.42 Therefore it is concluded that it is
meritorious.
6. The Employer has interrogated employees regarding
why they wanted the Union.
In view of the findings hereinabove that the Company has
unlawfully interrogated employees, it appears that this
objection is meritorious.
7. The Employer forbade employees to engage in
activities in behalf of the Union while on Company
property, even if such activities were conducted on the
employees' own time.
In view of the findings hereinabove that both Don Mannino
and Frank Mannino instructed drivers, and two in particular,
not to discuss union activities while they were in the drivers'
waiting room which was during their nonworking time and in a
nonworking area, it is concluded that this objection is
meritorious.
8. The Employer stated to employees that he knew the
identity of the employees who were the "ring leaders,"
naming them.
It is found that this objection is without merit, since there is
no credited testimony which would support it.
9. The Employer stated to employees that he should fire
the employees who were active on behalf of the Union.
In view of the finding heremabove that Allen stated to Rust
that he would be fired if he were a "union rabble-rouser," it is
concluded that this objection is meritorious. This objection is
also supported by the credited testimony of White that Allen
threatened that a number of employees "won't be worrying
about jobs," if the Union does not get in.
10. The Employer stated to the employees that he did
not intend to furnish the Excelsior list, his purpose being to
stall off certification of the Petitioner by the N.L.R.B. as
long as possible.
There is some testimony with respect to a statement
supposedly made by Mannino with regard to not furnishing
42 The testimony which appears to relate to this objection is that of
Pottorff, who testified that he admitted to Mannino that he was
soliciting cards for the Union after he was accused of doing so by
Mannino.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names to the Labor Board. However, the testimony is too
vague to support a finding that this objection is meritorious.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent, set forth in
section III, above, occurring in connection with its operations
set forth 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 commerce and the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered to
cease and desist from engaging in the unfair labor practices
found herein and take certain affirmative action, as provided in
the Recommended Order below, designed to effectuate the
policies of the Act. It having been found that certain of the
Objections to the Election filed by the Union in Case
31-RC-473 are meritorious, it will be recommended that the
election be set aside and a second election be held.
Upon the basis of the foregoing findings of fact and upon
the entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. All bus drivers, including regular part-time drivers,
employed by the Company at its Harbor City operations,
excluding all other employees and all supervisors as defined in
the Act, constitute an appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(b) of the
Act.
4. John Allen is a supervisor within the meaning of the Act.
5. General Counsel has failed to sustain the burden of
proof of the allegation that Thomas Nicolello is a supervisor
within the meaning of the Act.
6. As of February 11, 1967, 70 employees in the
above-described bargaining unit were in the category of
"eligible voters."
7. Of the aforementioned 70 eligible voters only 30 had
validly designated the Union as of February 11, 1967, as their
collective-bargaining representative.
8. The General Counsel has failed to sustain the burden of
proof of the allegation in the complaint that on or about
February 11, 1967, and at all times thereafter the Union
represented a majority of the employees in the above-described
bargaining unit.
9. Respondent interfered with, restrained, and coerced
employees within the meaning of Section 8(a)(1) of the Act by
engaging in the following conduct:
(a) Unlawfully interrogating employee Robert Jackson in
early February 1967 through its agent Frank Mannino,
employee Loyal Diehl on or about February 9, 1967, through
its agent Willard Gregory, and employee Betty Joe Jimmez in
the early part of March 1967 through its agent Gregory.
(b) Communicating threats of economic reprisal for ad-
herence to the Union to employee Jackson in early February
1967 through its agent Frank Mannino, to employee John
Rust in the middle of February through its agent John Allen,
to employee Eugene White in early February and first part of
March through its agent Allen, to Robert Fogle on or about
February 10 through its agent Dominic Mannino, to employee
Fogle in early February and mid-February through its agent
Allen, to employee Garland Pottorff in mid-February through
its agent, Gregory, to employee Jackson in mid-February
through its agent Gregory, and to employee Moses Gonzales on
a number of occasions in February and March through its
agent Allen.
(c) Prohibiting employees from discussing union matters
while in the drivers' waiting room which is a nonworking area
where they spend their nonworking time.
(d) Threatening to prolong bargaining negotiations for a
contract, should the employees select the Union as their
bargaining representative through its agent Gladys Selvin on
March 15, 1967.
(e) Engaging in surveillance of a union meeting on March
14, 1967, or creating the impression thereof, through its agent
Gregory.
10. The General Counsel has failed to sustain the burden of
proof of all allegations in the complaint of independent
violations of Section 8(a)(1) of the Act, other than those
related to the above-described conduct which was found to be
violative of the said Section of the Act.
11. Respondent violated Section 8(a)(3) and (1) of the Act
by issuing a discriminatorily motivated warning notice to Ed
Blando on March 13, 1967.
12. General Counsel has failed to sustain the burden of
proof of the allegation in the complaint that Robert Fogle was
discriminatorily discharged and refused reemployment, in
violation of Section 8(a)(3) and (1) of the Act.
13. General Counsel has failed to sustain the burden of
proof of the allegation in the complaint that Respondent
discriminatorily discharged Eleanor Mayfield, and refused her
reemployment, in violation of Section 8(a)(3) and (1) of the
Act.
14. The General Counsel has failed to sustain the burden of
proof of the allegation in the complaint that Respondent
constructively discharged Garland Pottorff and refused him
reemployment in violation of Section 8(a)(3) and (1) of the
Act.
15. General Counsel has failed to sustain the burden of
proof of the allegations in the complaint that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain in good faith with the Union.
16. With respect to Objection Nos. 2 through 10 filed by
the Union to the election in Case 31-RC-473, Objection Nos.
3, 5, 6, 7, and 9 are found to be meritorious and Objection
Nos. 2, 4, 8, and 10 are found to be without merit.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, and upon the foregoing findings of fact and
conclusions of law, and the entire record in this proceeding, it
is ordered that M & M Charter Lines, d/b/a M & M Charter Bus
Lines, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees with respect to
their union sentiments and activities.
(b) Threatening employees with economic reprisals should
M & M CHAPTER LINES, INC.
they adhere to the Union or select the Union as their
bargaining representative.
(c) Prohibiting employees from discussing union matters in
nonworking areas and on nonworking time. -
(d) Threatening to prolong bargaining negotiations for a
contract should the employees select the Union as their
bargaining representative.
(e) Engaging in surveillance of the protected activity of its
employees or creating the impression thereof.
(f) Issuing discriminatorily motivated warning notices.
(g) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act-
(a) Withdraw and delete from its personnel records the
discriminatory warning notice given to Ed Blando.
(b) Post at its place of business in Harbor City, California,
copies of the attached notice marked "Appendix."43 Copies
of said notice, on forms provided by the Regional Director for
Region 31, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, includ-
ing 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.
(c) Notify the Regional Director for Region 31, in writing,
within 20 days from the receipt of this Decision, as to what
steps the Respondent has taken to comply herewith.44
IT IS RECOMMENDED that the allegations in the com-
plaint relating to the termination of the employment of
Robert Fogle, Eleanor Mayfield, and Garland Pottorff should
be and are hereby dismissed.
IT IS RECOMMENDED that the allegations in the com-
plaint relating to a violation by Respondent of Section 8(a)(5)
and (1) should be and are hereby dismissed.
I T IS RECOMMENDED that the allegations in the com-
plaint of independent violations of Section 8(a)(1) of the Act
other than those which were found hereinabove to have been
sustained should be and are hereby dismissed.
IT IS FURTHER RECOMMENDED that the Board set aside
the election of March 17, 1967, in Case 31-RC-473, and that a
second election by ballot be conducted for the employees in
the appropriate unit as promptly as possible, subject to the
Board's Rules and Regulations, as amended.
43In 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 enforced 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."
44In 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
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
627
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that we,
M & M Charter Lines, Inc. d/b/a M & M Charter Bus Lines,
violated the National Labor Relations Act, as amended, and
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative of their
own choosing
To act together for collective bargaining or other mutual
aid or protection
To refrain from any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully question employees as to how
they feel about the Union, Chauffeurs, Sales Drivers &
Helpers, Local 572, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or
as to whether they are engaging in activities on behalf of the
Union.
WE WILL NOT threaten employees with any action that
will affect their employment or their working conditions
because they are in favor of the Union, or because they
decide to have the Union represent them.
WE WILL NOT prohibit employees from discussing any
union matters while they are in nonworking areas and on
nonworking time.
WE WILL NOT threaten to stretch the time required to
negotiate a contract, if the employees select the Union as
their bargaining representative.
WE WILL NOT attempt to observe what employees
attend union meetings or give employees the idea that we
are doing so.
WE WILL NOT give a warning notice to an employee
about his work performance because he is in favor of the
Union.
WE WILL withdraw from our personnel records the
discriminatory warning notice we gave to Ed Blando.
M & M CHARTER LINES, INC.
d/b/a M & M CHARTER BUS LINES
(Employer)
Dated By
(Representative) (Title)
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from compliance with its provisions, they may communicate
the date of posting, and must not be altered, defaced, or covered directly with the Board's Regional Office, 10th Floor, Bartlett
by any other material. Building, 215 West Seventh Street, Los Angeles, California
If employees have any question concerning this Notice or 90014, Telephone 688-5850