North Atlanta Coach and Transportation, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1975

219 N.L.R.B. 1026 (N.L.R.B. 1975)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Atlanta Coach and Transportation , Inc. and
General Teamsters Local Union No. 528. Case 10-
CA-11003
August 8, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
On March 28, 1975, Administrative Law Judge Al-
mira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Atlanta, Georgia, January 22 and
March 3, 1975. A copy of the charge, filed December 3,
1974, was served on the Respondent December 14, 1974.
The amended charge was filed and served December 30,
1974. The complaint was issued January 2, 1975.
The issues are whether or not the Respondent violated
Section 8(aXI) of the National Labor Relations Act, as
amended, by interrogating its employees, and violated Sec-
tion 8(aX3) by discharging Roy F . Hurt and refusing to
employ Alton M. Baxter because of their union activities.
Upon the entire record, including my observation of the
demeanor of the witnesses, ' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Georgia corporation. Its office and
place of business is located in Chamblee, Georgia, where it
is engaged in the transportation of passengers and parcels
between a car-parking area in north Atlanta and Hartsfield
International Airport in south Atlanta, Georgia, a distance
of some 30 miles each way. The complaint alleges and the
answer admits that the Respondent commenced operations
October 28, 1974. During the months of November and
December 1974, which period is representative of all times
material herein, the Respondent received more than
$50,000 for transporting passengers and parcels to and
from Hartsfield International Airport.
Based on the agreed facts set forth above, I find that the
Respondent's operations constitute an essential link in the
transportation of passengers and commodities in interstate
commerce , and conclude that it is therefore engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction in
this proceeding.2
It. LABOR ORGANIZATION
The record shows, and I find, that the Charging Party,
General Teamsters Local Union No. 528, herein referred
to as the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 3
A. Background
As indicated above, the Respondent took over this busi-
ness operation October 28, 1974. Prior to that date, the
business was run by Northside Air Terminal, Inc., which
began operations in June 1974. Northside is not charged
with any unfair labor practices and the Respondent is not
alleged to be a successor of Northside.
About a month or 6 weeks after Northside began opera-
tions, Robert J . Stanifer became operations manager, with
authority for hiring and firing and for "running the trans-
portation end" of the Company. Ronald T. Baron was a
consultant . He testified that, as such , he was engaged solely
in handling lost luggage , passenger complaints , and install-
ing signs at the airport, as requested by Mike Goldgar,
The parties waived the filing of briefs
2 HPO Service, Inc., 122 NLRB 394 (1958). See also William S. Shurett,
d/b/a Greyhound Terminal, 137 NLRB 87 (1962), enfd. 314 F.2d 43 (C.A. 5,
1%3).
3 Much of the testimony regarding relevant events is vague and contradic-
tory. Except where specifically discussed below , the reason for this appears
to be lack of information and imprecise recall , and I have based the factual
findings as to such events on the probabilities in light of the record as a
whole.
219 NLRB No. 168
NORTH ATLANTA COACH AND TRANSPORTATION 1027
president of Northside . During that period , Baron was full-
time vice president and general manager of Atlanta Air-
port Transportation Company, a subsidiary of Greyhound,
in which position he handled , among other things, all hir-
ing and firing of personnel for that company.
Alton Baxter and Roy Hurt were hired as bus drivers by
Northside in June and July 1974, respectively. Both had
been longtime union advocates and soon became engaged
with other employees in promoting union representation at
Northside . Baxter and a driver named Elliot went to Stani-
fer sometime in August and told him they were organizing
the drivers. Stanifer responded that the Company was not
financially able to have a union . The men stated they were
going ahead anyway . Stanifer thereafter told Hurt that
Baxter was "trying to put them out of business " by pushing
the Union , and that Stanifer "didn't think now was the
time to do it, that they needed a little while to get their feet
on the ground ." After taking the matter up with the Union
Representative , Hurt told Stanifer the Union would look at
the Company 's financial condition as the employees would
not want to put the Company out of business . Stanifer told
him, "knowing you what I would say wouldn 't make any
difference , you would proceed if you wanted to anyhow."
Stanifer frequently asked Hurt after that about their pro-
gress , and both Hurt and Baxter kept Stanifer posted on
the union campaign . The two employees agreed , however,
that Stanifer eventually told them he had no objection to
the Union, and Hurt even signed up men in Stanifer's pres-
ence . Stanifer testified that in his conversations with Hurt,
Baxter, and others before September 29, he "asked them if
they were trying to organize a union , if they felt they need-
ed a union and if there wasn't someway that we could sit
down and come to some kind of agreements about the
union at the present time because we couldn't afford it."
Late in September , Stanifer and three or four of the
other supervisors met with President Goidgar and one of
the stockholders , a Mr. Margoe . The group decided that,
because of financial difficulties , they would lay off the
drivers in order to get enough capital to operate for the
time being . Stanifer called a meeting of the employees Sun-
day, September 29, which Hurt and Baxter attended, and
announced the decision . He explained that the Company
was up for sale and suggested that all employees who
wished to be reemployed make out applications . Many did
so, including Hurt and Baxter . Stanifer testified that at that
time he "felt like somebody would come along and take the
company and make it go." Effective the following Wednes-
day, October 2, all 25 drivers were laid off . The driving was
done immediately thereafter by the dispatchers and three
drivers who were recalled on a part-time basis.
On October 8, 1975 , Attorney Leonard Snyder of Mary-
land came to Atlanta with a Mr . Baldwin to investigate the
possibility of purchasing all or part of Northside. Four
days later , on October 12, Snyder and Baldwin bgught
two-thirds of the stock of Northside , which was insolvent,
and put up enough money to meet its payroll. There was
then a recall of all the drivers who wished to return , except
Baxter and a driver named Turner who were not recalled.
Stanifer testified that the reason Baxter was not recalled
was that Baron told him he could not call Baxter or Turner
"because he had dealings with them at Airport Transporta-
tion and that they were union agitators and he didn't want
them over there." Hurt testified that upon his return to
work he asked Stanifer when he was going to call Baxter
back, and that Stanifer told him Baron "won't let me bring
him back . . . there is some old trouble they had had back
at the airport out there and he just put thumbs down on
him."
The record shows that Baxter was employed as a bus
driver by Atlanta Airport Transportation Company for a
2-year period prior to 1971 while Baron was general man-
ager there . Baxter testified that he was assistant shop stew-
ard for the Union at Airport Transportation and had occa-
sional meetings with Baron over grievances and such
matters, and that some of the meetings were pleasant and
some were not.
Baron denied discussing Baxter with Stanifer, and de-
nied that he was involved with Stanifer in the hiring and
firing of Northside drivers prior to taking over as executive
vice president and senior operations officer of the Respon-
dent November 18, 1973 . Baron said that the drivers and
mechanics at Airport Transportation were represented by
separate unions ; that, although he had differences with
them , he negotiated contracts with both unions ; and that
no unfair labor practice charges were filed against him at
Airport Transportation.
On October 24, 1974, the Union advised Northside by a
letter addressed to Baron that its employees were engaged
in organizing, and named the following as active on the
Union 's behalf : Rufus Avery, Ezeriel Davis, Roy F. Hurt,
James M. Thomas , and George G. Williamson.
Stanifer testified that he mentioned the Union to Hurt at
least three times after his recall , asking Hurt how the union
drive was coming along and how many employees he had
signed up . Hurt testified that , after Stanifer's original ob-
jection, he did not discourage the union activities, and that
Stanifer told him , "the new bunch has some money, they
had more money than the old bunch did, and that he didn't
have too much against a Union."
B. Events on and After October 28, 1974-the Alleged
Unfair Labor Practices
On October 28, 1974, Northside ceased to exist; and the
Respondent was organized as a new company- by stock-
holders Snyder, Baldwin, and Stanifer , taking over the op-
eration under emergency authority granted by the Georgia
Public Service Commission. The Respondent was a new
corporation with new capitalization , a new office, and new
vehicles . Stanifer remained as operations manager , his po-
sition , he said, being under that of Baron . He testified that
he was given permission toastaff the new company with
new people and operate it along with . Baron . As stated
above, Baron denied taking a direct role in operating the
Respondent before November 18, when, he said, he be-
came executive vice president and senior operations offi-
cer. In any event, all employees on the payroll at that time
were terminated , invited to file applications for employ-
ment, and, as far as the record shows , all were rehired as
new employees.
When Baxter heard about the new company taking over,
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he attempted , unsuccessfully , to reach Baron by telephone
to ask for his job back. He did speak to Stanifer over the
phone , but Stanifer said Baron would not permit his return.
Baxter never visited the Respondent's premises to apply for
work. He was not notified to submit a new written applica-
tion for employment with the Respondent, as the drivers
who were on the payroll were, and Stanifer said the appli-
cation which Baxter made out the Sunday before his layoff
was in the files in the old Northside office unless someone
had moved it.
Hurt was terminated by a letter with the Respondent's
letterhead dated November 8, 1974, over Stanifer's signa-
ture as operations manager . November 8 was Stanifer's last
day with the Respondent also, as he left to join a compet-
ing organization . Stanifer testified , and Baron denied, that
Baron prepared the letter and instructed Stanifer to sign it.
The record shows that a decision was made by Snyder,
Baldwin , and Stanifer to reduce bus service from 24 to 20
hours, to cut the drivers' schedules from three 8-hour shifts
to two 10-hour shifts, and to reduce the complement from
the 12 or 15 who had returned at the time of the previous
recall to 10. Baron denied taking part in this decision, and
Snyder said it was only casually discussed with Baron.
Stanifer testified that Baron not only took part in the deci-
sion to cut back, but also instructed Stanifer a few days
before November 8 to take Hurt off the roster of regular
drivers and list him as an extra because "he was one of the
union agitators whose name had appeared in the list from
the union hall that they had sent out there ... " Snyder
claimed that none of the drivers had any real seniority, that
union activities were not a factor in the selection , and that
upon review of the drivers' histories Hurt was selected for
layoff because he had had a driving incident which in-
volved a breach of the safety regulations.
The driving incident was testified to by Baron. Baron
said he was driving in a line of cars in the right-hand lane
of the airport highway when he observed one of the
Respondent's buses make a right-hand turn from the left
lane. That afternoon he described the driver to Stanifer,
Stanifer pointed to Hurt, and Baron said , "that's the one."
After questioning Hurt about the incident, Baron said, he
turned the matter over to Stanifer. Stanifer testified that
Hurt was not clearly identifiable as the driver involved in
the incident, as Baron's description fit Thomas as well as
Hurt and that both had been driving that day.
Hurt testified that when Baron accused him of the safety
violation he remembered making the right-hand turn re-
ferred to but insisted he had entered the right lane in plenty
of time to make a safe exit from the highway. Hurt said
that Baron and Stanifer both denied selecting him for the
extra list, each blaming it on the other, and that Hurt ac-
cused Baron of selecting him because his name was includ-
ed as a union advocate in the Union's October 24 letter.
C. Conclusions
1. The alleged violations of Section 8(a)(1)
It is without dispute that Stanifer, who clearly was a
supervisor within the meaning of Section 2(11) of the Act
for both Northside and the Respondent, interrogated Hurt,
Baxter , and perhaps other employees about their union ac-
tivities . However, the evidence fails to show that any of
Stanifer's interrogation occurred on or after October 28,
when the Respondent came into existence , as alleged in the
complaint . I conclude , therefore , that this allegation must
be dismissed.
2. The alleged violations of Section 8(a)(3)
The evidence clearly establishes that it was Stanifer who
rejected Baxter's oral application over the telephone for
employment with the Respondent, and that it was Stanifer
who signed the letter terminating Hurt's employment with
the Respondent . Although Stanifer was well aware of
Baxter's and Hurt's union activities , there is no convincing
evidence of discriminatory motive on his part. On the con-
trary, there is general agreement that, after initially voicing
objections to unionization because of Northside's financial
difficulties , Stanifer dropped his objections on and after
the improvement in that company's financial situation and
thereafter said nothing to discourage the employees' union
activities . Moreover , the refusal to employ Baxter and the
termination of Hurt occurred in a context otherwise free of
unfair labor practices or union animus by the Respondent.
The General Counsel 's case therefore is based substan-
tially on Stanifer 's testimony that he acted on Baron's in-
structions which Baron told him were based on Hurt and
Baxter being "union agitators ." Upon careful review of the
entire record , I recognize the strong attraction of the theo-
ry that Stanifer's testimony was trustworthy because as
part of management he was in a position to know the rea-
sons for the Respondent 's conduct toward these two men,
and because having left the Respondent he has no incen-
tive to conceal those reasons . Attractive as it is, however, I
cannot accept this theory.
The main factor against acceptance of Stanifer 's testimo-
ny is the unlikelihood that Stanifer was in an inferior posi-
tion to Baron and obligated to carry out his instructions at
either company . Thus, the evidence shows that Stanifer
was both a stockholder and operations manager of the Re-
spondent . Baron was not a stockholder, and he remained a
consultant until November 18 when he took over responsi-
bility for the Respondent 's operations , undoubtedly a re-
placement for Stanifer in this respect . Similarly, before the
advent of the Respondent , Stanifer conceded that Baron
was a consultant for Northside and that he , Stanifer, was
responsible for "running the transportation end" of that
company.
Baron 's description of his duties as consultant, and
Snyder's credible testimony that Stanifer participated in
the cutback decision which was only casually discussed
with Baron , are much more plausible than Stanifer's con-
tention that Baron had authority over him and made all the
critical determinations.
In addition, although Baron had knowledge of Hurt's
and Baxter's union adherence, there is no evidence, other
than Stanifer's testimony as to Baron 's alleged antiunion
remarks directed specifically to the employment of Baxter
and Hurt, of any antiunion bias harbored by Baron. Even
Baxter, in describing his meetings as an assistant union
steward with Baron at Airport Transportation, described
NORTH ATLANTA COACH AND TRANSPORTATION 1029
their meetings as sometimes pleasant and sometimes not,
which conforms largely with Baron's testimony to the ef-
fect that, despite differences with the unions there, he ne-
gotiated contracts with them. Moreover, although Stanifer
named Baron to Hurt and Baxter at the time as the one
responsible for the Respondent's conduct toward them,
Stanifer's failure to tell them about Baron's alleged motive
to rid himself of union agitators suggests that it was an
afterthought. It is further clear that at the time Stanifer
turned down Baxter's telephone application he knew the
Respondent was engaged in cutting down its driver person-
nel and already had more drivers than it needed. This sug-
gests that the Respondent would not in any event have had
a vacancy for Baxter.
I am similarly more inclined to believe Baron's rather
than Hurt's account of the safety violation because I am
convinced that Hurt was not entirely candid and that he
did in fact make an unsafe right turn from the left lane. I
note that Stanifer's attempt to cast doubt on Baron's iden-
tification of Hurt as the driver who did so was weakened
by Stanifer's final concession that Baron's description fit
only one driver other than Hurt, and that that driver was
Thomas. However, Thomas' name was also listed in the
Union's October 24 letter as a union advocate, and Baron
is not shown to have suspected that Hurt was more active
in the union movement than Thomas, or any of the others
listed in the Union's letter, all of whom, except Hurt and
one other who left of his own accord, are still employed by
the Respondent.
In all these circumstances, I credit Baron's denial of the
authority and antiunion statements attributed to him by
Stanifer, and find that, although the evidence leaves some
unsolved mysteries , the allegations that the Respondent
was motivated by antiunion considerations in its treatment
of Baxter and Hurt are not supported by a preponderance
of the credible evidence, and conclude that these allega-
tions should also be dismissed.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I issue the following rec-
ommended:
ORDER4
The complaint herein is dismissed in its entirety.
4In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.