R & E Transit, St. Louis

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 959 (N.L.R.B. 1977)

R & E TRANSIT, ST. LOUIS
R & E Transit, St. Louis, A Division of American
Transit, Inc. and Miscellaneous Drivers and
Helpers Union, Local 610, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Fulton Mitchell and Ken Burris
Miscellaneous Drivers and Helpers Union, Local 610,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and its Agents, Barney Vaughn, John
Metz and Harlan Horn and R & E Transit, St.
Louis, A Division of American Transit, Inc.
Miscellaneous Drivers and Helpers Union, Local 610,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Daniel J. Hayden. Cases 14-CA-
9070, 9071, 9127, and 14-CB-3178, 3189
May 24, 1977
DECISION AND ORDER REMANDING
PROCEEDING TO REGIONAL
DIRECTOR
On July 21, 1976, Administrative Law Judge Paul
L. Harper issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and supporting briefs.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to remand this proceeding to
the Regional Director.
The Administrative Law Judge found that R & E
Transit violated Section 8(a)(3) by refusing to
reinstate Larry Green, an economic striker, and
Section 8(a)(l) by interrogating and threatening
Gerald and Geneva Merritt, respectively. Local 610
was found to have violated Section 8(b)(l)(A) and
(B) by threatening and later fining Daniel Hayden, a
supervisor at R & E Transit.
R & E Transit contends that the Administrative
Law Judge erred by asserting jurisdiction herein.
Local 610 contends that because Hayden was not
threatened for reasons related to either his superviso-
ry or union activities and was only fined for
performing struck work, neither Section 8(b)(l)(A)
nor 8(b)(1)(B) was violated.
Contrary to the Administrative Law Judge, we
believe Roesch Lines, Inc., l controls the jurisdictional
issues raised herein.
The record shows that R & E Transit provides bus
service for certain St. Louis public schools. Under
Roesch Lines, Inc., that part of R & E Transit's
' 224 NLRB 203 (1976) (Chairman Fanning and Member Jenkins
dissenting in part).
229 NLRB No. 142
operations which is public school-related is exempt
from the Act.
The record further shows that R & E Transit
provides bus service for parochial schools and runs
private bus charters. No evidence, however, was
introduced regarding the gross income derived from
these parochial school and charter bus operations.
Nor was any evidence introduced regarding the
amount of time, if any, Larry Green, Gerald Merritt,
Geneva Merritt, and the other full-time and part-
time employees spent performing work related to
these parochial school and charter bus operations.
Lacking this evidence, we cannot now decide
whether jurisdiction lies with respect to the com-
plaint's allegations. We shall, therefore, remand this
case to the Regional Director for further proceedings
consistent with the Board's Order herein.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to the Regional Director for
Region 14 and that an Administrative Law Judge to
be designated by the Chief Administrative Law
Judge shall take such action as is required in light of
our decision that the record is insufficient to decide
the jurisdictional issues raised herein.
CHAIRMAN FANNING, dissenting:
R & E Transit is under contract with the St. Louis
school system to provide bus transportation for
certain public high school students. R & E also
provides bus transport for parochial schools and runs
private charters. R & E's gross volume for the last 4
months of 1975 was $195,000 or $585,000 projected
to an annual basis.
American, which runs an interstate commuter and
sightseeing bus service, owns R & E, decides what
work R & E will bid for, and controls R & E's labor
policies. American has a direct inflow into the State
of $50,000 and a gross annual income that exceeds
$250,000.
I would apply the jurisdictional standard for transit
systems to R & E's operations. As the record shows
that American and R & E are a single employer for
jurisdictional purposes, I would find that R & E's
operations affect commerce and satisfy the jurisdic-
tional standard for transit systems.2 Further, there is
no showing that the St. Louis school system controls
R & E's labor relations to the extent that R & E
could not bargain effectively and independently
about the working conditions of its employees. I
would therefore assert jurisdiction.
2 Charleston Transit Company, 123 NLRB 1296(1959).
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS, dissenting:
The record shows that American satisfies the
jurisdictional standards for transit systems; i.e.,
$250,000 gross income and $50,000 direct inflow.3 As
American and R & E are, for the reasons stated by
Chairman Fanning, a single employer for jurisdic-
tional purposes, I would, under We Transport, Inc.
and Town Bus Corp., 4 assert jurisdiction over R & E's
entire operations. I would also affirm the Adminis-
trative Law Judge's other findings.
:' Id
4 215 NLRB497(1974).
DECISION
STATEMENT OF THE CASE
PAUL L. HARPER, Administrative Law Judge: Subject
consolidated cases were heard on April 20, 21, and 22,
1976, in St. Louis, Missouri. The complaint and order
consolidating Cases 14-CA-9070 and 14-CA-9127 was
issued on March 26, 1976, alleging the discriminatory
discharge of Larry Van Tassel and Fulton Mitchell in
violation of Section 8(a)(3) and (I) of the Act; refusal to
reinstate alleged unfair labor practice strikers Ken Burris,
Charles Williams, William Hayes, and James Kinkead
between about February 19, 1976, and about March 19,
1976, and continuing refusal to reinstate Larry Green; and
numerous alleged acts and conduct in violation of Section
8(a)(1) of the Act. Respondent, in its answer, admitted
certain allegations but denied the commission of any unfair
labor practices.
Complaint and order consolidating Cases 14-CB-3178
and 14-CB-3189 was issued on March 26, 1976, alleging
that Respondent Union, through its agents Jack Kuper and
Glenn Boyer, threatened Daniel Hayden, a supervisor of R
& E Transit and an employee of Berberich's Delivery
Service, with physical harm and other acts and conduct in
violation of Section 8(b)(1)(A) and (B) of the Act.
Respondent Union, in its answer, admitted certain allega-
tions but denied the commission of any unfair labor
practice.
THE UNFAIR LABOR PRACTICES
The Issues
In the consolidated CA cases the primary issues are as
follows:
1. Whether Larry Van Tassel was discriminatorily
discharged because of his union membership and/or
activities in violation of Section 8(a)(3) of the Act, or for
the reasons asserted by Respondent Employer.'
2. Whether or not the strike beginning February 10,
1976, and ending February 20, 1976, was an unfair labor
At the close of the General Counsel's case complaint allegations
relating to the discharge of Fulton Mitchell were dismissed, without
objection by General Counsel, since Mitchell failed to appear and testify at
the hearing and the evidence of record was insufficient to support such
allegations.
2 See We Transport, Inc. and Town Bus Corp., 215 NLRB 497 (1974).
Subsequent to the close of hearing and the time within which to file briefs
herein, the Respondent filed with me a supplemental brief in which it urged
practice strike, as alleged in the complaint, and Respon-
dent's failure and/or refusal to reinstate certain strikers
upon their unconditional application constitutes a violation
of Section 8(a)(3) of the Act.
3. Whether or not Respondent, through its general
manager, Hayden, engaged in numerous acts of interroga-
tion and threats constituting interference with, and re-
straint and coercion of, its employees in violation of
Section 8(a)(1) of the Act.
Issues in the consolidated CB cases will be discussed
under a separate section.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
The Business of the Employer
R & E Transit, St. Louis, A Division of American
Transit, Inc., is a wholly owned division of American
Transit, Inc., is engaged in providing school bus transpor-
tation for the City of St. Louis, Missouri. During the period
of time the Respondent Employer has been in business in
St. Louis, up to the time of the original charge herein, it
received gross revenues from its operations in excess of
$200,000. American Transit, Inc., admittedly is engaged in
multistate operations. I find that R & E Transit is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.2
The Labor Organization Involved
Miscellaneous Drivers and Helpers Union, Local 610,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
The Discharge of Larry Van Tassel
Van Tassel was employed as a schoolbus driver for R &
E Transit from September 2, 1975, until his discharge on
February 4, 1976, General Counsel contends because of his
union activity - Respondent, because he had been found
responsible for two "chargeable" accidents.
I find the evidence of record to be insufficient to support
the complaint allegations and contentions of General
Counsel that Van Tassel was discriminately discharged
because of his union activities. In the first place Van
Tassel's union activities were quite limited. He signed a
union authorization card and attended a union meeting on
February 3, 1976. He was discharged the following day but
I find the timing entirely coincidental. There is no evidence
in the record that Respondent knew anything about Van
Tassel's union interest before his discharge. Van Tassel's
testimony concerning remarks about the Union attributed
the Board's recent decision in Roesch Lines, Inc.. 224 NLRB 203 (1976) as
"mandatory authority" for the denial of jurisdiction in the subject case.
Thereafter the General Counsel filed a motion for permission to file
supplemental brief and supplemental brief in response to Respondent's
supplemental brief. I find Roesch Lines factually distinguishable from both
We Transport and the subject case and accordingly adhere to my finding
that jurisdiction is assertible under the guidelines of We Transport.
960
R & E TRANSIT, ST. LOUIS
to Hayden in his phone conversation with Van Tassel on
the day of the discharge is discredited for reasons noted
below. Moreover, I find the evidence establishes that Van
Tassel was discharged for the reason asserted by the
Respondent.
On February 4 Van Tassel while at work received a
phone call from Hayden in which Hayden advised Van
Tassel he had just learned from the employer's liability
insurance carrier's agent that the insurance company's
investigation of Van Tassel's accident in December 1975
revealed it to be Van Tassel's fault and the insurance
company therefore intended to pay off the claim. Hayden
explained to Van Tassel that this was his second chargeable
accident and accordingly he was being terminated. Con-
cerning Hayden's alleged remarks about the Union, Van
Tassel testified as follows:
Q. Did he say anything about a union in this
conversation?
A. Yes, he did. He said that all of us had wanted to
join a union and that his boss had told him that he
could use any means in his power to prevent it. I told
him that I was not everybody and he said it did not
make any difference because I was not the only one he
was going to let go.
Hayden denied making any remark about the Union in
this conversation and I credit his denial. The basis of my
finding in this respect is Van Tassel's almost complete
disregard of the truth about the manner in which the
accident occurred and his failure to timely report the
accident. According to credible composite testimony in the
record the accident occurred on December 18, 1975. The
collision involved the bus Van Tassel was driving and a
blue Chevelle owned and operated by David Vanmill. The
accident occurred on the Vandeventer Overpass in St.
Louis. The collision between the bus and Vanmill's car was
witnessed by a third party driver, Sharon Adams, who was
immediately behind Vanmill at the time. After the collision
Van Tassel continued until he reached a stop signal about a
mile or so from the overpass. Vanmill followed Van Tassel
and Adams followed both vehicles to the stop sign where
she parked momentarily behind the bus. Van Tassel got out
of his car, approached Adams, and asked if she witnessed
the accident. She answered in the affirmative and gave
identification information to Vanmill. Vanmill then ap-
proached Van Tassel and exchanged information. Van
Tassel nevertheless failed to report the accident until
instructed to do so by Hayden who learned about the
accident through Respondent's insurance agent. Van
Tassel admits that his first accident, a month or so earlier,
was his fault. The accident report on the second accident
signed by Van Tassel and dated December 31, 1975,
describes the accident as follows:
Emergency stop on eastbound Highway 40, Vande-
venter Overpass. I stopped suddenly, swerving to the
left to keep from colliding with car in front of me. This
caused the car along side of me to stop, when David
Vanmill stopped, his car was hit in the rear by another
car.
Sharon Adams, apparently a completely unbiased wit-
ness to the accident, testified she was driving in the lane of
moving traffic directly behind Van Tassel's bus when the
Vanmill car passed her car on the left. She estimated
Vanmill was going only "two or three miles an hour" faster
than vehicles in her lane. She testified, "He [Vanmill came
around me, starting to pass and the bus came out and he
went over, trying to avoid the bus, into the guard rail and
the bus hit him and he went into the guard rail. It all
happened at the same time." Adams stated she saw neither
turn signals or brake lights on the bus before the collision.
The bus continued on after the accident and both Vanmill
and Adams followed it about a mile to an intersection
where the bus had stopped at a traffic signal. Adams
testified her car made no contact with any other vehicle.
As stated above Adams appeared to be a completely
disinterested witness as far as the accident was concerned
and certainly with respect to these proceedings. I fully
credit her testimony concerning the manner in which the
accident occurred. Van Tassel's obvious disregard of the
truth with respect to the accident and his completely and
apparently purposeful distortion of the facts concerning it,
both in his report to the employer and his testimony in this
proceeding, constrain me from placing any reliance on his
other testimony concerning his phone conversation with
Hayden. I find, based on my observation of Van Tassel's
demeanor while testifying, and for the reasons noted
above, that Hayden did not make the remarks concerning
the Union attributed to him by Van Tassel. Moreover, it is
clear to me and I find that Van Tassel was discharged
because of his responsibility for two "chargeable" acci-
dents. There is ample evidence in the record that the
Respondent Employer consistently discharged drivers who
were involved in a similar situation. As the evidence does
not establish Van Tassel was discharged because of his
union membership or activity I recommend this portion of
the complaint be dismissed.
The Alleged Unfair Labor Practice Strike
As noted above, the strike began on February 10, 1976,
and ended February 19, 1976, when all strikers, except
Larry Green, according to the stipulation of the parties,
made unconditional offers to return to work. Respondent
contends that Larry Green quit his employment and
therefore made no application for reemployment. The
General Counsel and Union, to the contrary, contend that
Green did make such application and did not quit his
employment.
There is considerable testimony in the record, much of it
conflicting, regarding the reasons the Union called the
strike. Some testimony indicates the primary reason was
employee complaints about work assignments (particularly
with reference to charter runs) and other conditions of
employment; some testimony indicating the discharges of
Van Tassel, Mitchell, and others (not named in the
complaint) were at least part of the reason. It appears
unnecessary to resolve this conflict as I have found the
discharge of Van Tassel not to constitute an unfair labor
practice; Mitchell's case was dropped as he did not appear
and testify at the hearing; and there is no unfair labor
practice allegation or contention that Respondent other-
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise violated the Act concerning the alleged employee
complaints about conditions of employment. Accordingly,
I find the strike occurring between February 10 and 19,
1976, was not occasioned by unfair labor practices on the
part of Respondent. Furthermore, as all strikers (except
Larry Green) were reemployed to available jobs upon
application and thereafter returned to their former jobs at
the first opportunity, I find none of the strikers (except
Larry Green) are entitled to backpay from the date of their
unconditional application on February 19 to the date of
their return to their former positions on or about March 19,
1976.
As to Larry Green I find that he did not quit his
employment as contended by the Respondent. As the
Union made an unconditional application to return to
work on behalf of Green along with other strikers I find
that Green should have been reemployed on or about the
same time as the other strikers to the first available job and
then to his former position when it became available. As it
is not clear from the record when Green's former job
became available, the exact date he should have been
reemployed, and the amount of backpay, if any, to which
he may be entitled, will be left to the compliance stage of
this proceeding.
Green testified that, besides the Union's general applica-
tion on behalf of all strikers, he made such an application
on his own behalf at the end of the strike. He testified he
was told he would be put on the extra board but thereafter
received no call to come to work. He testified he spoke the
first time with an office clerk by the name of Judy and on a
second occasion to an office clerk known to him only as
Marlene. He also spoke to Hayden on one occasion but
Hayden told him he had learned Green had phoned in and
quit. Green denied telling anyone that he had quit.
Ray Rand, a busdriver and part-time office clerk,
testified Green phoned in on February 10, the first day of
the strike, and told Rand "he would not be in to work any
more." Rand wrote a note to this effect on a scrap of
adding machine tape and placed it on a spindle, presum-
ably for Hayden's information. Rand's further testimony
reveals he received another phone call from Green on or
about March 10 wherein Green "explained to me what he
meant the morning that he called me. He said ... 'you just
misunderstood me. I did not quit.'" The next day,
according to Rand, he learned that Hayden was preparing
to send mailgrams to various strikers offering them
reinstatement to their former jobs. Rand said he raised the
question as to why Hayden was preparing such a mailgram
for Green, relating his phone conversations with Green to
Hayden. Hayden apparently had not seen the note on the
spindle. On the basis of Rand's statement, Hayden did not
forward a mailgram to Green.
Although it might be argued that Hayden acted on
information from Rand, a rank-and-file employee, who
apparently did not accurately convey Green's portion of
the phone conversation, such argument fails in the light of
subsequent events. Hayden acknowledges that a few days
later, about March 15, he received another phone call from
Green. This time Green made it clear to Hayden he had
not meant to convey to anyone any intention on his part to
quit his employment. Notwithstanding this last effort by
Green to clarify any prior misunderstanding about his
application for reemployment, Hayden remained adamant
in his refusal to reemploy Green along with the other
strikers on or about March 19. Based on the testimony of
Hayden, Rand, and Green, which is not in substantial
conflict, except for interpretation (or misinterpretation) of
the various conversations, I find that Green did not in fact
quit his employment at any material time herein. Respon-
dent offered no other reason not to reinstate Green. It is
clear Respondent's refusal to reinstate strikers whose jobs
became available after their unconditional application,
easily calculated to discourage such employees in the
exercise of their statutory right to strike, would constitute a
violation of the Act. It is equally true in the case of an
individual striker, in this case, Larry Green. Accordingly, I
find Respondent Employer's refusal to reinstate Larry
Green to constitute a violation of Section 8(a)(3) of the
Act.
Alleged Interference, Restraint, and Coercion
The complaint alleges numerous acts of interrogation
and threats of economic reprisal by and through Respon-
dent Employer's general manager, Daniel J. Hayden. At
the close of General Counsel's case, however, several of
these allegations, along with the allegation of discriminato-
ry discharge of Fulton Mitchell, were dismissed at the
suggestion and without objection of the General Counsel.
The General Counsel contends that Manager Hayden's
remarks to employee Ken Burris on or about February 6,
1976, shortly before the strike, created an impression of
unlawful surveillance. Burris testified that on this occasion
Hayden approached him as he was about to leave the office
and said to him, "I know you're one of the shit heads that
is starting this union and that you said I had been
discriminating against you." Burris continued, "That was
just about the opening conversation. It was no hostile type
thing, to me it was only a joking fashion, it was just the way
he said it at that particular time, he said 'I know you were
the shit head starting the stuff but I am going to start giving
you some extra work so you can't say I'm discriminating
against you.' The following day our union meeting came
about and we went on down the line." Burris further
admitted that "extra work" usually meant "charter runs"
and that Hayden not only promised him a charter run but
assigned him one scheduled for February 10. The strike
intervened before Burris could make the charter run,
however. I find such evidence insufficient to sustain a
finding of unlawful surveillance. Accordingly, I recom-
mend this portion of the complaint be dismissed.
In support of an allegation of unlawful interrogation the
General Counsel presented the testimony of Gerald Merritt
who testified that on February 3, 1976, shortly after 1 p.m.
Manager Hayden asked Merritt where he and his wife were
at 1 p.m. Respondent argues in its brief that it strains belief
that Hayden, while overseeing the departure of 34 buses in
freezing rain, would ask such a question under such
circumstances. Although not the most convincing witness
Merritt testified with a sufficient degree of certainty for a
finding that the remark was made. I so find. Hayden
admittedly was aware of the 1 p.m. union meeting and
admittedly harbored certain hostility towards the Union
962
R & E TRANSIT, ST. LOUIS
although he was a reluctant member due to a union-
security clause in the Union's contract with Hayden's part-
time employer, Berberich's Delivery Service. Therefore I
find Respondent, by Hayden's interrogation of employee
Merritt, violated Section 8(aX)(1) of the Act. Merritt also
testified that on February 6, 1976, Hayden remarked to
him that "he did not see how the union could help them."
Hayden admitted making the remark. However, Hayden
testified, without contradiction, that his remark followed
Merritt's assertion to him that "If they (employees) want a
union around here they are going to have one." In those
circumstances, I find nothing unlawful in Hayden's
response to Merritt on this occasion.
The General Counsel contends that sometime in October
1975 Hayden, in a conversation with Geneva Merritt, after
asking her if she had heard anything about a union, stated
to her that R & E Transit Company would install a
timeclock if employees became represented by a union.
Hayden denied making the remark. However Hayden
admittedly was aware of union activity in October 1975
and admittedly had discussed the possibility of installing a
timeclock with his immediate supervisor. I find he made
the statements attributed to him by Merritt. Under the
circumstances prevailing at the time, the import of the
remark is clear. The employees were being paid on the
basis of a 40-hour week and routinely worked a less
number of hours. To be "put on the clock" would
necessarily involve less pay. I find the remark to constitute
a threat of economic reprisal in violation of Section 8(a)(1)
of the Act.
The CB Cases
The charge in Case 14-CB-3189 was filed on March 9,
1976, by Daniel J. Hayden, as an individual, alleging
Respondent Union violated Section 8(bXIXA) of the Act
in restraining and coercing employees of Berberich's
Delivery Service (viz, Hayden) by threats of force and
violence. A comparison case, 14-CB-3178, was filed on
March 23, 1976, by R & E Transit, St. Louis, A Division of
American Transit, Inc., alleging violations of Section
8(b)(l)(A) and (B) of the Act. Order consolidating cases,
complaint and notice of hearing alleging 8(b)(1)(A) and (B)
violations was issued March 26, 1976. The consolidated
complaint alleges, at paragraph 6, subparagraphs A
through O, violations of Section 8(b)(1)(A); at paragraph 6,
subparagraphs A and C through O, violations of Section
8(b)(1)(B). Thus only subparagraph B relates solely to
Section 8(b)( I)(A).
Daniel J. Hayden performed a dual role of functioning as
general manager for R & E Transit and, during his off-duty
hours at R & E, as an employee for Berberich's Delivery
Service. On an average he worked about a 40-hour week at
R & E with varying working hours from day to day; at
Berberich's some approximate 30 hours a week also with
somewhat varying working hours depending on the day of
the week.
The parties are in agreement that Hayden was a
supervisor within the meaning of the Act's definition while
performing his duties of general manager at the R & E's
place of business, a rank-and-file employee while perform-
ing his duties of delivery driver for Berberich's Delivery
Service. Hayden became a member of Local 610 as a
condition of his employment with Berberich's under a
union-security agreement between Berberich's and Local
610. Thus, in view of his supervisory status with the
Respondent Employer, at all times material herein Hayden
was a supervisor-member of Local 610.
The events pertinent to the issues herein occurred at the
premises of Pulitzer Publishing Company where Hayden
regularly picked up his newspapers, The Globe Democrat,
for delivery. The strike, as noted above, occurred between
February 10 and 19, 1976. Some of the incidents involved
occurred during this period of the strike. At the end of the
strike, on or about February 19, 1976, intraunion charges
were filed against Hayden "because he performed supervi-
sory duties at the Employer's terminal during the course of
the strike." The complaint further alleges that on or about
March 10, 1976, the Respondent Union "brought Hayden
to trial on the intra-union charge described above in
subparagraph L" and on or about March 17, 1976, the
Union found Hayden guilty of the intraunion charges and
"fined him $2,000." Such conduct is alleged to be violative
of Section 8(bXIXA) and (B) of the Act.
The Events of February 13, 1976, Occurring on
the Premises of Pulitzer Publishing Company
According to the testimony of Hayden he had, as was his
custom, gone to the dock of Pulitzer to pick up his
newspapers for delivery on the evening of February 13,
1976. Hayden had first reported at Berberich's garage,
clocked in about 8:45 p.m., picked up his delivery truck,
and proceeded to the Pulitzer dock. After parking his truck
in the usual manner Hayden testified that three union
representatives, Harlan Horn, John Metz, and Barney
Vaughn, approached and introduced themselves. Hayden
recognized Metz as president of Local 610. After attending
to certain details with the Pulitzer dispatcher Hayden
walked back towards his truck. Horn said the weather was
"a little bit nippy" and suggested they all get in Hayden's
truck. Hayden, aware of company rules against nonem-
ployees occupying a company vehicle, said "No" but on
Horn's retort, "Let's get in the truck," testified he "felt that
I had better get in the truck, on my own, for my own safety
and as I walked around to get in the truck . . . I'm not
saying allegedly who pushed me but I was pushed against
the step of the truck." All three union agents then entered
the van. Metz, according to Hayden, said, pointing his
finger, "Come here I want to talk to you." At this point
Vaughn got out of the van and stood in front of it a short
distance away. Metz then brought up the subject of the
strike and also complained to Hayden that he had heard
"that you have been bad mouthing Harlan and I, down
here" to "These dock hands." Hayden denied he had been
"bad mouthing" anyone but admitted he had complained
about the "leadership of the union." The argument
continued and Metz, according to Hayden, got angry and
said to Hayden, "I ought to beat your ass..,. you are a
union man and you should . . . not be acting that way."
More discussion followed about the strike and the fact that
Horn had "sanctioned" it as well as Joint Council 13.
Again Metz said to Hayden, "You come here, you want to
fight, I ought to whip your ass now." Hayden testified that
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metz made remarks with "fists clenched." Hayden testi-
fied, rather vaguely, that something was mentioned about
his job but he didn't know if the reference was to his job
with Berberich's or R & E Transit. Horn then stepped out
of the van and Vaughn entered angrily and, according to
Hayden, said, "I ought to whip your ass right now, why
don't you shut up . . . you are going to give those people
their jobs back." During the ensuing altercation, Hayden
testified that at one point Metz grabbed him by his shirt
collar, at another point Vaughn "grabbed my shirt and
then he took his finger and he pointed at my face and he
said, 'Do you want to step outside of this truck, why don't
you shut up right now.' "
Horn testified concerning the February 13 events as
follows. He went to the Pulitzer dock on February 13 to
meet with Hayden because he "had a personal matter to
discuss with him." The personal matter, according to Horn,
was a matter that had been reported to him "by dock
hands that had heard from other people that he (Hayden)
was bad mouthing us, calling us a bunch of crooks, stealing
the union's money, wasting the union's money." Horn
testified this was the only reason he went to see Hayden on
this occasion. Horn met with Metz and Vaughn at the
scene. He testified that, after approaching Hayden, he and
Metz got into Hayden's van along with Hayden. He
testified, contrary to Hayden, that he and Metz got in the
truck on the opposite side from Hayden since Hayden had
to go around to the driver's side, unlock the truck, and then
reached across and unlocked the door on the opposite side
to permit entry by Horn and Metz. Horn denied that either
Metz or he pushed Hayden.
After entering the van, Horn stated to Hayden "That we
had heard he was saying things about us, that we were
stealing the union's money, wasting the union's money and
that we were thieves, and that he had better be able to
prove it, or he better keep his mouth shut." Hayden denied
Horn's accusations. Horn testified that Metz told Hayden
he felt the same way as Horn about Hayden saying bad
things about them. According to Horn it was Hayden who
brought up the subject of the strike at R & E Transit. Horn
told Hayden "we were not there to discuss that." Horn
admitted he told Hayden the Union would probably place
charges against him. He stated he asked Hayden to take a
neutral position regarding the strike and "that regardless of
whether he liked it or not that them people, by law, had a
right to vote whether they wanted a union or not, and that
whatever he tried to do he could not stop them from doing
it." Horn denied making any reference to Hayden's job
with Berberich's. He denied telling Hayden the Union
knew how to handle men like him but admitted he told him
"the executive board might do more than fine him." He
testified he had in mind the board might expel or suspend
Hayden from union membership. On March 10, according
to Horn, a hearing was conducted on the union charges
against Hayden. The pertinent portion of the charge reads
as follows:
Daniel Hayden had been working behind legal picket
line and crossing the picket line on numerous occasions
until February 19, 1976.
On March 17, 1976, the Union informed Hayden by letter
that the executive board had found him guilty of violating
several specific paragraphs of the Union's constitution and
bylaws and that he was fined a total of $2,000 ($100 for
each of four sections and $200 a day for each of 8 days the
picket line was established).
With respect to the conduct of Metz, Horn testified that
Metz gave no appearance of being intoxicated but did
show that he was angry at Hayden and threatened to fight
Hayden "If he (Hayden) wanted to .. ." He testified he
was not in Hayden's truck at the same time with Vaughn.
Metz testified concerning the events of February 13 at
the Pulitzer dock much in the same vein as Horn. Metz had
driven with Vaughn in Vaughn's car from the Local's office
to the Pulitzer dock for the purpose -of talking with
Hayden. He confirmed Horn's testimony that none of the
three union agents pushed Hayden before entering the
truck. Metz testified his purpose in visiting Hayden was to
discuss with him reports from brother members that
Hayden "was going around saying I was a crook and was
misusing union funds and things of that sort." He
confirmed Horn's testimony concerning what was first said
to Hayden but testified he interrupted Horn and "told Mr.
Hayden that if he was calling me a thief and he was saying
I was misusing funds, I was going to beat his fucking head
in." Hayden, according to Metz, denied saying such things.
Like Horn, Metz testified it was Hayden who brought up
the subject of the strike at R & E Transit; and that he
guessed the Union would bring charges against him. Metz
testified he tried to reassure Hayden that was not the
purpose of their visit. Metz admitted saying to Hayden
several times that he wanted to fight Hayden and was only
calmed down by Hayden's protestations that he had not
been guilty of"badmouthing" the union agents.
Vaughn's testimony largely corroborates that of Horn
and Metz. He stood outside in front of Hayden's van while
Horn and Metz were inside the van with Hayden. He
testified "as soon as John got out, Mr. Metz got out, Mr.
Hayden started raising his voice and getting rather, I
thought, angry, acting up, and I did not like it. From where
I was standing you could hear him and I got mad because
he was yelling at Mr. Horn and I got into the truck ... I
told him that if he could not speak in a civilized manner
and keep his voice down and not to open his mouth or I
would put my fucking fist in it." Vaughn admitted
grabbing Hayden by the arm but said it was only after
Hayden "started raising his hand." Vaughn testified, "I just
grabbed his arm with my left hand and held it." He then
asked Hayden "about three times if he understood me."
Hayden did not reply. When asked if he heard any of the
remarks between Horn and Hayden, Vaughn testified he
was about 15 feet from the van at the time and could not
hear what was being said. He acknowledged telling Horn
to step aside so he could enter the van and approach
Hayden.
Concluding Findings Regarding the Events of
February 13, 1976, at the Pulitzer Dock
I have no doubt thet Hayden somewhat exaggerated the
aggressive behavior of Metz and Vaugh; however, by and
large, I find his testimony to be the most accurate
964
R & E TRANSIT, ST. LOUIS
description of the February 13 events at the Pulitzer dock. I
find the testimony of Horn and Metz to the effect that it
was Hayden who broached the subject of the strike despite
their efforts to avoid the subject to be incredible. Even so,
Horn admitted he told Hayden he would probably be
brought before the executive board on charges and that the
Board might do more than just fine him. Hayden
considered this remark as a threat even though undefined. I
find this to be so. If Horn had wished to convey to Hayden
the possibility of expulsion or suspension he would have
said so.
Based on the credited testimony of Hayden and the
admissions of Horn, Metz, and Vaughn I find the following
facts to be established by the evidence. I find that Horn,
Metz, and Vaughn visited Hayden on the evening of
February 13, 1976, at the Pulitzer dock primarily because
of their extreme dissatisfaction with Hayden's conduct as a
supervisor with R & E Transit, especially the fact that he
performed certain busdriving and other functions during
the strike at R & E. Hayden admitted that he drove one
complete bus route on February 10 and thereafter
continued to fuel buses behind the picket line and then
placed them outside the picket zone for employees and
employee union members who wished to continue working
but did not want to cross through the picket line. The fact
of the alleged "badmouthing" I find to have been of only
secondary importance and perhaps lending some impetus
and urgency to their visit with Hayden for a "discussion"
with him. I find it significant that the Union, although
claiming to have received reports of Hayden's alleged
"badmouthing" from several brother members, presented
no testimony whatever from such witnesses who must have
been friendly and easily available. It is a fair inference,
which I make, that such testimony would not have been
favorable to the Union.
Although I find the union agents' threats of physical
violence directed toward Hayden on this occasion to be
related primarily to Hayden's supervisory functions with
the Respondent Employer R & E Transit, I nevertheless
find that such threats made to Hayden, since he was a
supervisor at R & E and an employee at Berberich's, to
constitute restraint and coercion of an employee in the
exercise of Section 7 rights and therefore violative of
Section 8(b)( )(A) of the Act.
The Union Charges and $2,000 Fine Levied by
Respondent Union Against Hayden
It is undisputed, the evidence establishes, and I find that
on or about March 10, 1976, Hayden was brought before
the Respondent Union's executive board on charges of
alleged violations of the Union's constitution and bylaws.
It is further undisputed and established in the record that
thereafter the Union fined Hayden the sum of $2,000.
It is also clearly established in the record, and I find, that
at all times material herein Hayden was a supervisor within
the definition of the Act. Moreover the record supports the
finding, which I make, that Hayden had the authority to
:' See The Newspaper Guild. Erie, Newspaper Guild. Lo(al 187. AFL-CIO
(Times Publishing Co.), 196 NLRB 1121 (1972).
I See e.g.. Northwest Publications. Inc.. supra; Sheet Metal Workers'
International Association, Local Union 49. AF. CIO (General Metal
act for management in the adjustment of employee
grievances and would in the normal course of his duties
represent management in any potential bargaining negotia-
tions. Accordingly, I find that Hayden, at the times
material herein, was a representative of his employer for
the purposes of collective bargaining within the meaning of
Section 8(bXIXB) of the Act.3
Having determined that Hayden was a supervisor as
defined by Section 2(11) of the Act and a management
representative within the contemplation of Section
8(b)(1)(IXB), the next question to be resolved is whether,
under the circumstances herein involved, Respondent
Union's disciplinary action against Hayden constitutes
restraint and coercion of R & E Transit within the meaning
of Section 8(bXIXB) of the Act.
It is well established that Section 8(bXI)(B) is to be
construed broadly to accomplish its intended objective, i.e.,
"to prevent . . . union interference with an employer's
control over its own representatives. .. .. "While Section
14(a) permits supervisors to be union members ...
Congress did not intend thereby to allow unions to subvert
the 'undivided loyalty' it clearly believed such management
personnel owe to their respective employers." It has been
consistently held that a union violates Section 8(bXI)(B)
when it disciplines a supervisor-member for reasons that
are related to, or grow out of, the performance of his duties
as a management representatives Moreover, union disci-
pline of a supervisor-member is viewed by the Board as
falling outside the proscription of Section 8(b)(1)(B) only
where the union offense occasioning the discipline involves
a matter purely of internal union administration, unrelated,
either directly or indirectly, to any dispute between the
union and the employer, or to the supervisor's relationship
and fidelity to his employer. (See Local 453, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL-
CIO (Syd Goudh and Sons, Inc.), 183 NLRB 187 (1970).)
Meat Cutters Union Local 81 of Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO
(Safeway Stores, Inc.) v. N.LR.B., 458 F.2d 794 (C.A.D.C.,
1972); San Francisco-Oakland Mailers Union No. 18,
International Typographical Union (Northwest Publications,
Inc.), 172 NLRB 2173 (1968).
In the case before me there is no doubt the union offense
for which Hayden was disciplined related to more than a
matter of purely union administration. The offense, as
spelled out in the minutes of the Union's executive board,
which charged, tried, and fined Hayden, was clearly stated
therein, i.e., Hayden's working behind and crossing a union
authorized and established picket line at R & E Transit.
Hayden testified, without contradiction, that, besides
hiring, firing, and disciplining drivers, it was his responsi-
bility "to make sure that R & E Transit . . . fills its
contract to the St. Louis public schools." It was in the
pursuit of these responsibilities that brought Hayden to
work behind the picket line and to cross through the line
on numerous occasions in order to provide his employer's
service of operating schoolbuses in fulfilling its contractual
Products. Inc.). 178 NLRB 139 (1969), enfd. 430 F.2d 1348 (C.A. 10. 1970);
Detroit Newspaper Prming Pressmen's Union No. 13,. International Printing
and Assistants' Union of North America, AFL-CIO (Detroit Free Press). 192
NLRB 106(1971).
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligations to the St. Louis public school system. It was the
performance of such supervisory duties that was the subject
of the Union's charges and fine against Hayden. Based on
all the foregoing considerations I find that Respondent
Union by disciplining Hayden in the manner described
herein, including fining him $2,000, constitutes restraint
and coercion of R & E Transit in violation of Section
8(b)(1)(B) of the Act.
CONCLUSIONS OF LAW
I. Respondent R & E Transit, St. Louis, A Division of
American Transit, Inc., is an employer engaged in
commerce within the meaning of the Act.
2. Respondent Miscellaneous Drivers and Helpers
Union, Local 610, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and/or refusing to reemploy Larry Green,
upon his unconditional application, to his former job when
it became available, the Respondent Employer discrimi-
nated against Larry Green in violation of Section 8(a)(3) of
the Act.
4. By Supervisor Hayden's interrogation of employees'
whereabouts during a union meeting, and threatening to
install a timeclock in the event employees selected the
Union as their bargaining representative, Respondent
Employer engaged in conduct in violation of Section
8(a)(l) of the Act.
5. By threatening Daniel J. Hayden with physical
abuse, threatening to bring and bringing union charges and
thereafter fining Hayden $2,000 because he engaged in
activities protected by Section 7 of the Act, the Respondent
Union has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(l)(A) of the
Act.
6. By bringing union charges and fining Daniel J.
Hayden $2,000 because he engaged in activities protected
by Section 7 of the Act, the Respondent Union has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(B) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent Employer and Respondent Union have
not violated the Act in any other respect not specifically
found herein.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 5
A. Respondent Employer, R & E Transit, St. Louis, A
Division of American Transit, Inc., its officers, agents,
successors, and assigns, shall:
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the 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.
1. Cease and desist from:
(a) Interrogating employees concerning their attendance
at union meetings.
(b) Threatening employees with economic reprisals by
telling them Respondent will install a timeclock if they
select the Union as their bargaining representative.
(c) Refusing to reemploy Larry Green to his former job
he held before the strike of February 10, 1976.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Reemploy Larry Green, if he still desires reemploy-
ment, to his former job and pay him for any loss of
earnings he may have suffered as a result of the discrimina-
tion practiced against him.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amount of
backpay due under the terms of this recommended Order.
(c) Post at its St. Louis, Missouri, place of business copies
of the attached notice marked "Appendix A."6 Copies of
said notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
B. Respondent Union, Miscellaneous Drivers and
Helpers Union, Local 610, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the exercise of
rights guaranteed under Section 7 of the Act by threatening
any employee with physical abuse.
(b) In any other manner restraining or coercing employ-
ees in the exercise of rights guaranteed under Section 7 of
the Act.
(c) Restraining or coercing R & E Transit, St. Louis, A
Division of American Transit, Inc., in the selection of
representatives for the purpose of collective bargaining or
the adjustment of grievances by fining or otherwise
disciplining its general manager, Daniel J. Hayden, for
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
966
R & E TRANSIT, ST. LOUIS
performing his managerial duties and responsibilities
during the strike beginning about February 10, 1976, and
ending about February 19, 1976.
(d) In any like or related manner restraining or coercing
R & E Transit in the selection of representatives for the
purpose of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Rescind and expunge all records of the union charges,
trial transcripts and electronic recordings of the trial, and
fine levied against Daniel J. Hayden.
(b) Advise Daniel J. Hayden in writing that the said fine
has been rescinded, and that the records, electronic and
otherwise, of the charges, trial, and fine have been
expunged.
(c) Post at its offices copies of the attached notice
marked "Appendix B." 7 Copies of said notice, provided by
the Regional Director for Region 14, after being duly
signed by the Respondent Local 610's representative, shall
be posted immediately upon receipt thereof, and be
maintained by the Respondent Local 610 for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Local 610
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
7 See fn. 6. supra.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees concerning
their attending meetings of Miscellaneous Drivers and
Helpers Union, Local 610.
WE WILL NOT threaten our employees with installing
a timeclock because of their interest in or support of
Miscellaneous Drivers and Helpers Union, Local 610.
WE WILL NOT discourage membership in, or activities
on behalf of, Miscellaneous Drivers and Helpers
Union, Local 610, or any other labor organization, by
refusing to reemploy striking employees who have
made an unconditional offer to abandon the strike and
return to work.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL offer Larry Green full reinstatement to his
former job or, if such job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority and other privileges previously enjoyed, and
make him whole for any loss of pay resulting from the
discrimination practiced against him.
R & E TRANSIT, ST. LouIs,
A DIVISION OF AMERICAN
TRANSIT, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees in the
exercise of their Section 7 rights by threatening any
employee with physical abuse.
WE WILL NOT fine or otherwise discipline Daniel J.
Hayden, or any other supervisor of R & E Transit, St.
Louis, A Division of American Transit, Inc., who is a
member of this labor organization, for performing his
or their managerial duties and responsibilities at said R
& E Transit.
WE WILL NOT in any other manner restrain or coerce
R & E Transit, St. Louis, A Division of American
Transit, Inc., in the selection of representatives for the
purpose of collective bargaining or the adjustment of
grievances.
WE WILL rescind and expunge all records of the fine
levied against Daniel J. Hayden and expunge all
records, electronic and otherwise, of any and all union
proceedings relating to said fine.
MISCELLANEOUS DRIVERS
AND HELPERS UNION
LOCAL 610, AFFILIATED
WITH INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
967