Tuskegee Area Transportation System

National Labor Relations Board - Board Decisions

Aug 14, 1992

308 N.L.R.B. 251 (N.L.R.B. 1992)

251
308 NLRB No. 47
TUSKEGEE AREA TRANSPORTATION SYSTEM
1 We have not considered the evidence submitted with the Re-
spondent’s exceptions to the judge’s supplemental decision and brief.
That evidence is outside the record.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Additionally, the Respondent asserts that the judge’s findings are
a result of bias and prejudice. After a careful examination of the en-
tire record, we are satisfied that this allegation is without merit.
In agreeing with the judge’s jurisdictional findings, we note that
the issue of whether the Respondent filed Federal income tax returns
is now a matter of public record and best left to the Internal Reve-
nue Service, which will be furnished a copy of this decision. See
Original Oyster House, 281 NLRB 1153 fn. 1 (1986), enfd. 822
F.2d 412 (3d Cir. 1987); Hacienda Hotel & Casino, 279 NLRB 601
fn. 4 (1986).
3 We agree with the judge’s conclusion that the Respondent’s
March 31, 1989 conduct with respect to employee Oliver Hooks vio-
lated Sec. 8(a)(3) and (1) of the Act, but we find that Hooks was
indefinitely suspended rather than discharged.
4 We shall amend the judge’s conclusions of law and remedy and
modify his recommended Order to conform to the violations found.
5 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
6 The Respondent also operated a charter bus service.
7 The Respondent also employed drivers who were able to drive
both shifts.
8 All dates are in 1989 unless otherwise indicated.
9 The record contains copies of the letters sent to Hammond and
Huff, the text of which is set forth in full in the judge’s supple-
mental decision. Mobley testified that he received a letter like that
sent to the other MARTA employees.
Tuskegee Area Transportation System and Oliver
Hooks, Jr. and Amalgamated Transit Union,
Local 1600. Cases 10–CA–24176 and 10–CA–
24554
August 14, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 7, 1991, Administrative Law Judge Philip
P. McLeod issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. On Novem-
ber 19, 1991, the Board remanded the proceeding to
the administrative law judge for further findings and
the issuance of a supplemental decision. On March 6,
1992, the judge issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 as modified and to adopt the rec-
ommended Order as modified.4
The judge, citing Lapeer Foundry & Machine, 289
NLRB 952 (1988), found that the Respondent violated
Section 8(a)(5) and (1) by unilaterally changing its
work rules to require employees to work both the
morning and afternoon shifts, thereby effectively termi-
nating employees Lewis Mobley, Jerome Hammond,
and Jorge Huff. Although finding merit in the General
Counsel’s contention that a discriminatory motive was
at least part of the reason for the Respondent’s unilat-
eral change, the judge found that it was not necessary
to determine whether, under an 8(a)(3) analysis,5 the
employees might have been terminated even in the ab-
sence of an unlawful motive because ‘‘it is clear that
employees would have been terminated . . . unilater-
ally and still in violation of Section 8(a)(1) and (5) of
the Act.’’ The judge concluded that the Respondent
violated Section 8(a)(5), (3), and (1) by discrim-
inatorily and unilaterally changing the work schedules
of the employees, which resulted in their terminations.
We agree with the judge’s conclusion that the Re-
spondent’s unilateral change in shift schedules and the
resulting terminations violated Section 8(a)(5) and (1),
but we do so only for the reasons set forth below.
At all relevant times, the Respondent subcontracted
with Greyhound Lines, Inc. to provide morning and
afternoon rush hour bus service on two routes of the
Metropolitan Atlanta Rapid Transit Authority
(MARTA).6 To obtain qualified drivers, the Respond-
ent employed drivers who worked full time for
MARTA and who, depending on their schedules,
would drive either the morning shift or the afternoon
shift for the Respondent.7 These MARTA drivers in-
cluded employees Mobley, Hammond, and Huff.
The Union was certified as the collective-bargaining
representative of the Respondent’s unit employees on
September 18, 1989.8 About November 16, the Re-
spondent received notice of an increase in its work-
men’s compensation insurance premiums. Thereafter,
on November 28, the Respondent sent a letter to each
of its MARTA employees stating, in pertinent part,
that due to the increased cost of insurance, ‘‘we must
cut back in staff by employing persons who can work
both, the morning and evening, shifts.’’9 The MARTA
employees were not able to work both shifts, and their
employment with the Respondent ceased.
As found by the judge, the Respondent sent this let-
ter without giving the Union prior notice or an oppor-
tunity to bargain. There can be little doubt that the
matter of shifts is a mandatory subject of bargaining.
Georgia Pacific Corp., 275 NLRB 67, 69 (1985) (cit-
ing Meat Cutters Local 189 v. Jewell Tea Co., 381
U.S. 676, 691 (1965)). Although the Respondent con-
tends that its decision to require employees to work
two shifts was an economic one based on ‘‘a fair pre-
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Respondent has not demonstrated compelling economic cir-
cumstances as of November 28 that would justify its changing shift
requirements unilaterally, without giving the Union an opportunity to
bargain over a proposed change. Cf. Aquaslide ‘N’ Dive Corp., 281
NLRB 219 fn. 2 (1986).
11 In denying enforcement, the court did not disagree with the
Board’s test for determining whether discharges violate Sec. 8(a)(5).
Rather, the court found that the respondent lawfully adopted the ap-
pearance guidelines as part of a program to upgrade its public image.
12 We find it unnecessary to pass on the complaint allegation that
the terminations also violated Sec. 8(a)(3) and (1) as the remedy
would not substantially be affected. Cf. Chef’s Pantry, 274 NLRB
775 fn. 6 (1985).
diction of the natural consequences of being unable to
pay the increase in Workers Compensation insurance
and salaries,’’ we note that an employer’s obligation to
bargain about changes in wages, hours, and terms and
conditions of employment is not excused by economic
expedience, even in good faith. Master Slack, 230
NLRB 1054 (1977), enfd. 618 F.2d 6 (6th Cir.
1980).10 We therefore find, in agreement with the
judge, that the Respondent violated Section 8(a)(5) and
(1) by unilaterally changing its work rules to require
employees to work both the morning and afternoon
shifts.
The Board has applied the following test for deter-
mining whether discharges or other forms of discipline
violate Section 8(a)(5) of the Act: if an employer’s un-
lawfully imposed rules or policies were a factor in the
discipline or discharge, then the discipline or discharge
violates Section 8(a)(5). See Equitable Gas Co., 303
NLRB 925 at 931 fn. 29 (1991), enf. denied on other
grounds 140 LRRM 2521 (4th Cir. 1992); Great West-
ern Produce, 299 NLRB 1004 (1990). In Equitable
Gas Co., above, the Board applied this test where, al-
though the complaint did not specifically allege that
employee McHale’s discharge violated Section 8(a)(5),
the complaint alleged and the General Counsel proved
that the relevant appearance guidelines were unlaw-
fully and unilaterally implemented in violation of Sec-
tion 8(a)(5). In view of the evidence that McHale was
disciplined and discharged pursuant to those guide-
lines, the Board further found that the Respondent’s
discipline and discharge of McHale also violated Sec-
tion 8(a)(5).11
Here, the complaint did not specifically allege that
the terminations of employees Mobley, Hammond, and
Huff violated Section 8(a)(5). However, as in Equi-
table Gas Co., above, the complaint alleged and we
have found that the Respondent violated Section
8(a)(5) by unilaterally changing its work rules to re-
quire its employees to work two shifts. We further
find, for the reasons set forth by the judge, that the un-
lawfully imposed work rules were a factor in the ter-
minations. In this regard, the judge in his decisions re-
jected the Respondent’s contentions that its November
28 letter to the MARTA employees was intended only
to generate discussion, that the Respondent intended to
retain all the MARTA drivers but to place them on
charter bus routes, and that the MARTA drivers were
never terminated but were permanently replaced when
they went on strike in early December. Rather, the
judge found that the November 28 letter effectively
terminated the employment of the MARTA drivers
who were unable to work both shifts. Under the cir-
cumstances, we find that the Respondent violated Sec-
tion 8(a)(5) and (1) by terminating employees Mobley,
Hammond, and Huff. See Equitable Gas Co. and
Great Western Produce, above.12
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 6
and 7.
‘‘6. The Respondent indefinitely suspended em-
ployee Oliver Hooks because of his activities on behalf
of and his support for the Union in violation of Section
8(a)(3) and (1) of the Act.
‘‘7. After the Board certified the Union on Septem-
ber 18, 1989, as the exclusive collective-bargaining
representative of its unit employees, the Respondent,
without notifying the Union or giving it an opportunity
to bargain, unilaterally changed its work rules to re-
quire employees to work both the morning and after-
noon shifts, thereby terminating employees Lewis
Mobley, Jerome Hammond, and Jorge Huff in viola-
tion of Section 8(a)(5) and (1) of the Act.’’
AMENDED REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(5), (3), and
(1) of the Act, we shall order it to cease and desist,
and to take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing its
work rules to require employees to work both the
morning and afternoon shifts, we shall order the Re-
spondent to cease and desist from unilaterally institut-
ing any such work rule. Affirmatively, we shall order
the Respondent to rescind the rule and to bargain with
the Union about any future implementation of any
such work rules governing employees represented by
the Union.
We shall also order the Respondent to fully restore
the status quo ante by expunging from the files of em-
ployees all memoranda, reports, and other documents
that were given as a result of the changed rule and no-
tify the affected employees, in writing, that this action
has been taken. We shall also order the Respondent to
offer Lewis Mobley, Jerome Hammond, and Jorge
Huff immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
253TUSKEGEE AREA TRANSPORTATION SYSTEM
13 As discussed in Great Western Produce, above, 299 NLRB
1004, a respondent employer may avoid having to reinstate and pay
backpay to an employee discharged pursuant to an unlawfully insti-
tuted rule or policy if the employer demonstrates that it would have
discharged the employee even in the absence of that rule or policy.
The circumstances surrounding the terminations of Mobley, Ham-
mond, and Huff have been fully litigated. In view of our adoption
of the judge’s findings that the November 28 letter effectively termi-
nated the employees—including his rejection of the Respondent’s
defenses—we find that Mobley, Hammond, and Huff are entitled to
reinstatement and backpay.
However, in view of the alleged closure of the Respondent’s busi-
ness in July 1991, matters regarding backpay and reinstatement shall
be left to compliance. Also in view of the alleged closure, we shall
require the Respondent to mail to each of the unlawfully terminated
employees a copy of the attached notice marked ‘‘Appendix.’’
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
or any other rights or privileges previously enjoyed,
and to make them whole for any loss of earnings and
other benefits suffered as a result of the changed work
rule, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).13
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by indefinitely suspending
employee Oliver Hooks because of his union activities,
we shall order the Respondent to offer him full and
immediate reinstatement and to make him whole for
any loss of earnings or other benefits he may have suf-
fered as a result of the discrimination against him, as
prescribed in F. W. Woolworth Co., above, with inter-
est as computed in New Horizons for the Retarded,
above.
ORDER
The National Labor Relations Board orders that the
Respondent, Tuskegee Area Transportation System,
Atlanta, Georgia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activi-
ties and sentiments, and the union activities and senti-
ments of other employees.
(b) Threatening employees with plant closure or
other reprisals for engaging in union activity or choos-
ing Amalgamated Transit Union, Local 1600 to rep-
resent them for purposes of collective bargaining.
(c) Soliciting grievances from employees and prom-
ising or impliedly promising to remedy the grievances
in order to dissuade employees from engaging in union
activities.
(d) Indefinitely suspending employees because of
their activities on behalf of or support for the Union.
(e) Unilaterally changing work rules by requiring
employees to work both morning and afternoon shifts,
and thereby effectively terminating employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and cease giving effect to the November
28, 1989 change in work rules requiring employees to
work both the morning and afternoon shifts, and bar-
gain with the Union about any future implementation
of any such rule.
(b) Remove from its files any reference to the un-
lawful indefinite suspensions or terminations of Oliver
Hooks, Lewis Mobley, Jerome Hammond, and Jorge
Huff, and notify the employees in writing that this has
been done and that it will not use the evidence re-
moved against them in any way.
(c) Offer Oliver Hooks, Lewis Mobley, Jerome
Hammond, and Jorge Huff immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits resulting
from their indefinite suspensions or terminations in the
manner set forth in the amended remedy section of the
decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Mail to each of the terminated employees a copy
of the attached notice marked ‘‘Appendix.’’14 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 10, after being signed by the Re-
spondent’s authorized representative, shall be mailed
by the Respondent immediately upon receipt.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate employees about their
union activities and sentiments, and the union activities
and sentiments of other employees.
WE WILL NOT threaten employees with plant closure
or other reprisals for engaging in union activity or
choosing Amalgamated Transit Union, Local 1600 to
represent them for purposes of collective bargaining.
WE WILL NOT solicit grievances from employees and
promise or impliedly promise to remedy the grievances
in order to dissuade employees from engaging in union
activities.
WE WILL NOT indefinitely suspend employees be-
cause of their activities on behalf of or support for the
Union.
WE WILL NOT unilaterally change work rules by re-
quiring employees to work both morning and afternoon
shifts, thereby effectively terminating employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind and cease giving effect to the No-
vember 28, 1989 change in work rules requiring em-
ployees to work both the morning and afternoon shifts,
and we will bargain with the Union about any future
implementation of any such rule.
WE WILL remove from our files any reference to the
unlawful indefinite suspensions and terminations of
Oliver Hooks, Lewis Mobley, Jermone Hammond, and
Jorge Huff and we will notify them in writing that this
has been done, and that we will not use the evidence
removed against them in any way.
WE WILL offer immediate and full reinstatement to
Oliver Hooks, Lewis Mobley, Jerome Hammond, and
Jorge Huff to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from their indefinite suspensions and termi-
nations, less any net interim earnings, plus interest.
TUSKEGEE AREA TRANSPORTATION-
SYSTEM
Frank F. Rox Jr., Esq., for the General Counsel.
Velma L. Jackson, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard
these cases on August 1 and 2, 1990, in Atlanta, Georgia.
The charge in Case 10–CA–24176 was filed by Oliver Hooks
on June 7, 1989. A complaint and notice of hearing issued
on August 22, 1989, alleging that Tuskegee Area Transpor-
tation System (TATS or Respondent) violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). On
January 18, 1990, Amalgamated Transit Union, Local 1600
(the Union) filed a charge in Case 10–CA–24554. This was
later amended on January 31 and February 23, 1990. On
March 2, 1990, an order consolidating cases and consolidated
complaint issued in Cases 10–CA–24176 and 10–CA–24554
alleging, inter alia, that Respondent violated Section 8(a)(1),
(3), and (5) of the Act by interrogating employees about their
union activities, threatening employees, soliciting employee’s
grievances, discharging Oliver Hooks, and unilaterally chang-
ing the work schedules of employees, thereby resulting in the
terminations of Lewis Mobley, Jerome Hammonds, and Jorge
Huff. In its answer to the consolidated complaint, Respond-
ent denied having engaged in any conduct which would con-
stitute an unfair labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Following the close of the
trial, counsel for the General Counsel and Respondent both
filed timely briefs with me which have been duly considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACTS, ANALYSIS, AND CONCLUSIONS
I. JURISDICTION
Tuskegee Area Transportation System began business in
1986 by establishing a system of three buses in Tuskegee,
Alabama. In July 1988, TATS entered into a minority sub-
contract agreement with Greyhound Lines, Inc., to provide
rush hour bus service on two routes of the Metropolitan At-
lanta Rapid Transit Authority (MARTA). TATS also operates
a charter bus service with frequent trips in and between
Georgia and Alabama. Respondent admits and stipulated to
the Board having statutory jurisdiction. Respondent asserts,
however, that it does not meet the Board’s discretionary ju-
risdictional standards. While Respondent attempted to de-
velop this issue to some extent at trial, its posttrial brief is
virtually silent on this issue.
Based on the record, I find that Respondent is precluded
from raising a lack of discretionary jurisdiction as a defense.
255TUSKEGEE AREA TRANSPORTATION SYSTEM
1 When questioned by me on the point, Wright claimed that no in-
come tax records exist reflecting revenue for the business since 1989
because he has not filed income tax returns for at least the past 2
years. I encourage the Board to refer this matter to the Internal Rev-
enue Service to determine whether Wright and/or TATS have filed
required income tax returns. If not, I would encourage them to take
appropriate action. If, on the other hand, Wright has in fact filed re-
quired returns, then I would encourage the Board to consider appro-
priate action against Wright for perjury before me.
The Union filed a petition for an election among Respond-
ent’s employees in Case 10–RC–13901. Thereafter, a hearing
was conducted to resolve any issues relating to the represen-
tation case. At the trial, John Wright, Respondent’s owner,
claimed that he did not receive the petition or notice of the
representation case hearing. Wright persisted in his denial
even though he was shown that he had corresponded with the
Board’s Regional Office approximately 10 days prior to the
representation case hearing. Following the hearing, the Re-
gional Director of Region 10 issued a Decision and Direction
of Election. Wright denied ever receiving this, although he
admitted receiving election notices from the Board. Wright
concedes, too, that he was present for the Board-conducted
election held on September 6, 1989. Wright also attempted
to claim that he did not receive service of the charges under-
lying this unfair labor practice proceeding. He claimed, for
example, that he does not sign for certified mail. Even after
being confronted with his signature on the return receipts for
the amended charge in Case 10–CA–24554 and the consoli-
dated complaint, Wright equivocated concerning service of
these documents. Simply stated, Wright is one of the least
credible witnesses ever to appear before me.
Respondent did not file a request for review of the Re-
gional Director’s assertion of jurisdiction in the Decision and
Direction of Election. It is well settled that although the ex-
istence of statutory jurisdiction may be raised at any time,
the issue of discretionary jurisdiction must be timely raised.
When Respondent has not sought to contest the Regional Di-
rector’s assertion of jurisdiction by filing a request for review
of his decision, an employer may not raise the issue of dis-
cretionary jurisdiction during a subsequent unfair labor prac-
tice proceeding. Pollack Electric Co., 214 NLRB 970 (1974);
see also Pickle Bill’s, Inc., 229 NLRB 1091 (1977).
Even if Respondent could assert lack of jurisdiction as a
defense at this late date, I would find counsel for the General
Counsel has carried its burden of proof on that issue. The
gross annual value of Respondent’s contract with Greyhound
to operate the two MARTA routes is $222,333. The record
is clear that Respondent receives substantial revenues from
the operation of charter bus services. Wright himself admit-
ted that charters for two schools in Alabama alone gross an
average of $30,000. Wright failed to produce subpoenaed
documents which would reflect revenue received from its
charter business. His only explanation for not doing so was
that his business office in Tuskegee, Alabama, was destroyed
by fire in July 1989.1 Considering the gross annual value of
the contract between Respondent and Greyhound for the two
MARTA routes, and in view of Wright’s own admission
concerning gross revenues received from seasonal charters, I
would find that counsel for the General Counsel has met its
burden of proof and that Respondent meets the Board’s
$250,000 discretionary standard.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Amalgamated Transit Union, Local 1600, is, and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Since entering into the minority subcontract agreement
with Greyhound Lines, Inc. in July 1988, TATS has provided
morning and afternoon rush hour bus service on MARTA
routes 148 and 718 in metropolitan Atlanta. During the in-
terim between the morning rush hour and the afternoon rush
hour, TATS has no work for the drivers. In order to obtain
qualified drivers, Respondent hired full-time MARTA driv-
ers, who, depending on their driving schedules with
MARTA, would drive either the morning or the afternoon
schedule with Respondent. Full-time afternoon or evening
drivers with MARTA would drive the morning rush hour for
Respondent, while MARTA drivers with morning routes
worked the afternoon rush hour for Respondent.
B. Union Activity
It is undisputed that Oliver Hooks was the driving force
behind the union organizing campaign of Respondent’s em-
ployees. In November 1988, Hooks spoke with several of
Respondent’s drivers about the possibility of union represen-
tation. As a MARTA driver, Hooks had been job steward for
Local 732 of the Union for about 2-1/2 years. Hooks talked
to Respondent’s drivers, solicited support, and made what-
ever contacts were necessary with the Union. In March 1989,
after securing union authorization cards, the Union demanded
recognition from Respondent.
I credit Hooks that in November 1988, he informed
Wright he was signing up employees for the Union. Hooks
told Wright that employees of Greyhound Transit that run
MARTA routes were discussing a union. Hooks testified can-
didly that Wright at first replied, ‘‘go ahead and do it. Grey-
hound’s got plenty of damn money.’’ According to Hooks,
he went on to tell Wright that ‘‘all the employees,’’ includ-
ing those of Greyhound subcontractors were signing up to
show solidarity. I do not credit Wright’s claim that he was
unaware Hooks was involved with the Union prior to Hooks’
March 1989 termination. I do, however, credit Wright to the
limited extent that he was unaware union activity was di-
rected at his own employees until he received the Union’s
demand for recognition on March 29, 1989. Wright admitted
he was aware of organizing activity as early as December
1988, but he testified he was assured by Hooks that the orga-
nizing campaign would not be directed toward his employees
but only toward Greyhound. Whether he was told this by
Hooks, or by other employees, or was simply mistaken, I
find that Wright was unaware union activity involved his
employees until March 29.
The remaining discriminatees, Lewis Mobley, Jerome
Hammonds, and Jorge Huff, all supported the Union and
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I credit Reggie Wall’s testimony that in a conversation with
Wright, Wright asked if discriminatees Mobley, Hammond, and Huff
knew Oliver Hooks or if they were ‘‘tied up with this union mess.’’
signed authorization cards. All three employees were full-
time MARTA drivers.
C. The Union’s Demand and Respondent’s
Interrogation of Employees
The Union sent Respondent a letter dated March 27, 1989,
demanding recognition. This letter was received by Respond-
ent on March 29.
Immediately after receiving the Union’s demand letter,
Wright telephoned employees at home. Employee McKinley
Woods, who testified about his conversation with Wright, in-
correctly placed this conversation on March 28, while the de-
mand was not received until March 29. I do not place any
great significance on this minor discrepancy since it is clear
from the testimony of both Woods and Wright that the con-
versation did take place and occurred after Wright received
the Union’s demand. Woods testified credibly that Wright
asked if he ‘‘was aware that a union was being formed’’ and
whether Woods was ‘‘for the union coming in against [Re-
spondent].’’ Woods told Wright he supported the Union.
Wright told Woods that he could not understand why the em-
ployees would support the Union in light of Wright’s ‘‘open-
door policy.’’ Woods testified credibly Wright stated that Re-
spondent did not ‘‘need anybody coming in telling [him]
what to do because it would only cause attitudes and fric-
tion.’’ Wright then told Woods, ‘‘I am the boss of the com-
pany and I can close it down.’’ During this conversation,
Wright also asked Woods if there were ‘‘any problems at
TATS.’’ Woods replied that he would like to know how
Wright comes up with the pay scale. As Woods pursued the
issue, Wright told Woods that he could not discuss anyone
else’s pay. Woods testified that he never received an answer
to his question about the pay scale.
Wright admitted telephoning employees about the Union.
Wright admitted further that the purpose of these calls was
to ask what were ‘‘the reasons for’’ the Union’s demand let-
ter and to find out ‘‘if [employees] were participating’’ in the
organizing campaign. Wright admitted, ‘‘I asked if they were
participating.’’ According to Wright he did this because he
had been assured by employees and by Hooks that the union
organizing campaign would not be directed toward his em-
ployees but only toward Greyhound. Although Wright denies
threatening employees or engaging in any unlawful activity
in these telephone calls, Wright even corroborates Woods’
testimony to some extent. Wright confirms he mentioned his
‘‘open-door policy’’ and further admits telling employees
that Respondent would ‘‘be willing to hear what they have
to say or hear any complaints and move accordingly.’’
Wright attempted to soften his statement about closing of the
business by claiming that he was merely predicting economic
consequences of unionization.
To the extent there is a discrepancy between Woods and
Wright, I credit Woods. Regardless of his personal motiva-
tion for calling the employees, I find that Wright individually
interrogated employees concerning their union activities and
sympathies as well as those of other employees.2 I find as
well that Wright solicited grievances from Woods and
impliedly threatened plant closure. In its posttrial brief, Re-
spondent argues that there was no solicitation of grievances
and no violation of the Act since Woods admitted he was not
able to receive an answer to his question about the pay
scales. Whether employees have their questions answered is
simply not relevant. The violation stems from Respondent
soliciting the grievances and impliedly promising to remedy
them, whether or not it actually remedies them.
After telephoning employees individually and asking them
if they were participating in the union campaign, Wright pre-
pared a document dated March 31, 1989, which he distrib-
uted to employees requiring them to sign a statement either
confirming or denying their support for the Union. Employee
Woods testified credibly that even after he indicated his sup-
port for the Union and returned the statement form to
Wright, Wright questioned him further about why he would
want a union.
I find that both the poll of employees and the further ques-
tioning of Woods constitutes further unlawful interrogation
of employees about their union activities and sentiments. Re-
spondent’s subjective motivation for interrogating employees
is not determinative of its lawfulness. The act of interrogat-
ing employees individually about their union activities and
sentiments must be viewed objectively as itself being intimi-
dating and coercive to employees. The Board has recognized
certain exceptions to this general proposition, of course,
where such interrogation is directed at known union adher-
ents whose activities are open and notorious. Such is not the
case here, where Respondent was under the impression that
union activities were not being directed toward nor, or en-
gaged in, by its own employees. I find that Wright’s interro-
gation of employees violated Section 8(a)(1) of the Act.
D. Termination of Oliver Hooks
On or about December 8, 1988, Respondent received a
memorandum from MARTA concerning a customer com-
plaint about Oliver Hooks. Hooks was given an informal
warning. As a result of a later complaint, on March 16, 1989,
Wright suspended Hooks as the regular driver on Route 718
and placed him on the ‘‘extra-board.’’ After March 16 and
before Hooks’ termination on March 31, however, Wright
used Hooks on several occasions to drive Route 718. On
March 31, 2 days after receiving the Union’s demand letter,
and after interrogating other employees and requiring them to
sign the poll indicating whether they supported the Union,
Wright terminated Hooks.
Wright testified that he terminated Hooks because of the
customer complaints against Hooks and not because of any
union activity. In fact, Wright testified at one point he was
not even aware that Hooks was involved with the Union
prior to Hooks’ suspension. I do not credit Wright in this re-
gard. Elsewhere Wright admitted that Hooks was ‘‘the cause
of the Union coming.’’ More significantly, Wright testified
that prior to receiving the Union’s demand, ‘‘I had been in-
formed by Oliver Hooks and the other workers . . . that they
had agreed . . . they would not organize against TATS be-
cause they had no grievances or problems with TATS Cor-
poration.’’ It is quite apparent from Wright’s testimony he
was fully aware Hooks was heavily engaged in union activ-
ity, but was under the impression that it was not directed at
his own employees. When Wright received the Union’s de-
mand, he was obviously shocked. He interrogated individual
employees and required each employee to sign a poll ac-
257TUSKEGEE AREA TRANSPORTATION SYSTEM
3 I note, too, that Wright’s statements to employees clearly reflect
that a change had been made and that Wright was not simply look-
ing for ideas. Employee Lewis Mobley testified credibly that when
he asked Wright if the letter meant he was fired, Wright replied,
‘‘well, unless you can work out something where you can work in
the evening time.’’ On cross-examination, Mobley again testified
credibly that Wright informed him, ‘‘I got to let you go. We’ve got
to cut back.’’
knowledging whether they supported the Union. He also took
immediate action to terminate Hooks.
Wright not only testified that he terminated Hooks because
of the customer complaints, but that the was required to ter-
minate Hooks because of an ‘‘ultimatum’’ he received from
the prime contractor, MARTA, to terminate Hooks. This ulti-
matum to discharge Hooks allegedly came from Darice Gam-
ble, MARTA’s contract services coordinator. Gamble was
called as a witness by counsel for the General Counsel on
rebuttal. Gamble unequivocally denied instructing Respond-
ent to terminate Hooks. Gamble testified that after referring
the customer complaint to Respondent, she was not informed
of the results of the alleged investigation by Wright. Nor was
Gamble aware that Hooks had been discharged. After being
questioned by both counsel for the General Counsel and
counsel for Respondent, I also questioned Gamble once
more:
Q. [The Court] Are you absolutely positive that you
did not instruct Wright to discharge Mr. Hooks?
A. [The Witness] Absolutely positive. I did not in-
struct them to terminate him.
I found Gamble totally candid and credible. I conclude that
she never directed or even suggested to Respondent that it
terminate Hooks. I conclude as well that Wright simply lied
about that in order to try to build a smoke screen behind
which he might hide. The false testimony proffered by
Wright itself warrants an inference that his motive for termi-
nating Hooks was unlawful.
What evidence is available also reflects Respondent’s dis-
parate treatment in terminating Hooks. Wright himself admit-
ted that he has received customer complaints about other
drivers. When pressed, Wright admitted that employee Ada
Harmon received numerous complaints ranging from being
late for runs to failing to complete her routes. Despite this,
Respondent did not impose any discipline whatsoever on
Harmon. The only explanation advanced by Wright for the
difference was that he was not directed to take action against
her but that he was directed to discharge Hooks, a claim
which I find completely false. I note, too, that Respondent
failed to produce subpoenaed records in this case, including
‘‘customer complaints’’ about employees. Failing to produce
these subpoenaed documents precluded counsel for the Gen-
eral Counsel from further demonstrating disparate application
of discipline. Respondent’s failure to produce the subpoenaed
records warrants the drawing of an adverse inference against
Respondent that if they had been produced, the records
would not support its position but rather would demonstrate
further disparate treatment.
Considering all the evidence, I conclude that when Re-
spondent received the Union’s demand, Wright seized on the
customer complaint as a rationalization to terminate Hooks.
Wright had received the customer complaint at least 2 weeks
before the discharge, and during that time allowed Hooks to
work. Seizing on the customer complaint as reason to termi-
nate Hooks represents a classic case of pretext. Wright went
too far, however, in trying to shift the blame for the dis-
charge decision to someone else by claiming he had received
an ‘‘ultimatum’’ to discharge Hooks, a claim which was
shown to be patently false. I conclude and find that Respond-
ent discharged Hooks because of his union activity, and Re-
spondent thereby violated Section 8(a)(1) and (3) of the Act.
E. The Change in Schedules
Following a Board-conducted election in which employees
voted unanimously to be represented by the Union, the Board
certified the Union on September 18, 1989.
On or about November 16, 1989, Respondent received no-
tice through its premium statement of an unannounced in-
crease in Workers Compensation Insurance. Wright testified
that the increase in premiums was from approximately $2400
to $11,600. Documents introduced by Respondent, however,
reflects the actual premium cost to be only $6800, not
$11,600. Nevertheless, the fact that there was an increase is
not disputed.
Wright testified that he was immediately faced with the
decision to reduce expenses or go out of business. As Re-
spondent states in its posttrial brief, ‘‘one alternative to re-
ducing expenses . . . was to have drivers work both the
morning and afternoon shift.’’ (Emphasis added.)
By letter dated November 28, and distributed to employees
on that date, Wright informed the MARTA drivers, ‘‘Due to
the increased cost of worker’s compensation insurance . . .
we must cut back in staff. Therefore, it is regrettable but ef-
fective December 8, 1988, your position is being phased
out.’’ In its posttrial brief, Respondent argues that ‘‘this let-
ter was intended only to generate discussion.’’ Respondent
appears to argue by implication that the letter did not effect
a change in working conditions of employees. If indeed this
is Respondent’s argument, it is rejected. Nowhere did the let-
ter state or even imply that Respondent was only trying to
generate discussion. On its very face, the letter notified em-
ployees that Respondent ‘‘must cut back in staff.’’ It thanked
those employees to whom it was given ‘‘for the service you
have rendered’’ and wished them ‘‘the very best in your fu-
ture endeavors.’’ This letter quite clearly terminated their
employment, and I so find.3 There is no dispute that this
change in operation was made without notice to, or consulta-
tion with, the Union. Board law is clear that such unilateral
changes based on economic considerations violate Section
8(a)(1) and (5) of the Act. LaPeer Foundry & Machine, 289
NLRB 952 (1988). Counsel for the General Counsel con-
tends, however, that the change was also motivated by dis-
criminatory intent, and the parties spend considerable por-
tions of their posttrial briefs discussing the motive for Re-
spondent’s change in operations.
The November 28 change in operations affected only the
part-time MARTA drivers who also happened to be the
union supporters. Wright testified that it was his intent to re-
tain all the MARTA drivers, but to work them on charter bus
routes. I reject this claim altogether. It is not only inconsist-
ent with the letter to employees dated November 28, but
statements made by Wright to employees credited above. Be
that as it may, Wright claims that MARTA drivers were
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
never terminated but were simply permanently replaced when
they went on strike on December 4. Wright claimed that he
received a telephone call warning him that the MARTA driv-
ers were going to go on strike on December 4, and, as a re-
sult, Greyhound instructed him to ‘‘move the equipment.’’
Wright also testified that prior to any picketing activity, he
was informed by Greyhound to obtain replacement drivers to
take the jobs of MARTA drivers.
On cross-examination, Wright admitted that neither the
Union nor any of the discriminatees ever informed Respond-
ent that a strike was planned for December 4. Nevertheless,
when the discriminatees arrived to work on December 4, Re-
spondent had not only moved the equipment but already
hired replacements for the MARTA drivers. While there was
some confusion even among employee witnesses themselves
as to the exact time they began picketing, all of these wit-
nesses testified that picketing did not begin until after Wright
departed from Respondent’s facility carrying the replacement
workers to the hidden buses. Wright is simply not a credible
witness, and I reject his contrived testimony regarding the
strike. I find that Respondent unilaterally effected the change
in working conditions on November 28 which had the effect
of constructively terminating all of Respondent’s employees
who worked for MARTA effective December 8. I find that
the picketing by employees was actually the result of and in
protest of Respondent’s unlawful unilateral action. In its
posttrial brief, Respondent argues that ‘‘a dissident group of
employees, who are now the petitioners, unlawfully and
without notice to the Union went on strike on December 4.’’
Respondent makes no clear argument in what way the strike
or picketing was unlawful. Quite obviously the Union and
Respondent have never negotiated any ‘‘no-strike’’ contract
provision, and the mere fact that employees did not get per-
mission from or notify the Union does not make their strike
unlawful. Contrary to Respondent’s argument that the strike
was unlawful, it was quite clearly a spontaneous unfair labor
practice strike precipitated by Respondent’s unlawful unilat-
eral change in the work schedules of employees which re-
sulted in the termination of MARTA drivers who worked for
Respondent and who supported the Union.
Wright’s own testimony also evidences that the November
28 change in operations was motivated at least in part by a
discriminatory intent. When asked if the change in operations
was due solely to the insurance increase, Wright replied in
the negative. Wright testified:
A. [By Wright] That’s because of the morale of the
drivers had dropped to the point where there was a lot
of harassment going on and a lot of other intimidating
activities going on. So I had to make a move at that
particular time.
Q. [By counsel for the General Counsel] What kind
of intimidating activities were going on, Mr. Wright?
A. The non-MARTA drivers were being called in-
competent fools, dummies and this kind of thing from
the MARTA drivers because they did not—
Q. Join the Union?
A. Right.
It is clear from Wright’s testimony that the union activity of
MARTA drivers was considered by Respondent to be caus-
ing morale problems. As Wright stated, ‘‘so I had to make
a move at that particular time,’’ and he did so by issuing the
letter dated November 28. I find merit to counsel for the
General Counsel’s argument that an unlawful and discrimina-
tory motive was at least part of the reason for Wright’s ac-
tion on November 28 which resulted in termination of
MARTA drivers. In the circumstances of this case, it is not
necessary to determine whether the employees might have
been terminated in any event even without an unlawful mo-
tive since their termination was unilateral and also violated
Section 8(a)(1) and (5) of the Act. Stated differently, one
could say it is clear that employees would have been termi-
nated even without regard to an unlawful motive since, with-
out the unlawful motive, they were terminated for economic
reasons but unilaterally and still in violation of Section
8(a)(1) and (5) of the Act. I find that on November 28, 1989,
Respondent discriminatorily and unilaterally changed the
work schedules of employees which resulted in the termi-
nation of employees Mobley, Hammonds, and Huff, and Re-
spondent thereby violated Section 8(a)(1), (3), and (5) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, Tuskegee Area Transportation System,
is, and has been at all times material, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Amalgamated Transit Union, Local 1600 is, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. John Wright interrogated employees about their union
activities and sentiments, and the union activities and senti-
ments of fellow employees; and Respondent thereby violated
Section 8(a)(1) of the Act.
4. John Wright threatened employees with reprisals, in-
cluding plant closure, for engaging in union activities; and
Respondent thereby violated Section 8(a)(1) of the Act.
5. John Wright solicited grievances from employees and
impliedly promised to remedy them in order to discourage
employees from engaging in union activities; and Respondent
thereby violated Section 8(a)(1) of the Act.
6. Respondent terminated employee Oliver Hooks because
of his activities on behalf of, or support for, the Union; and
Respondent thereby violated Section 8(a)(1) and (3) of the
Act.
7. After the Board certified the Union on September 18,
1989, as the exclusive bargaining representative of its em-
ployees, Respondent unilaterally changed the work schedules
of employees and thereby terminated employees Lewis
Mobley, Jerome Hammonds, and Jorge Huff, without notify-
ing the Union or giving it an opportunity to bargain about
such matters; and in part because the named employees sup-
ported the Union; and Respondent thereby violated Section
8(a)(1), (3), and (5) of the Act.
8. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce within the meaning of Section 2(6) and
(7) of the Act.
259TUSKEGEE AREA TRANSPORTATION SYSTEM
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Board held in Lapeer Foundry, supra, that an unlaw-
ful failure to negotiate over a layoff decision in violation of
Section 8(a)(5) of the Act requires that the employer’s back-
pay liability run from the date of the layoffs until the date
the employees are reinstated to their same or substantially
equivalent position or have secured equivalent employment
elsewhere. Backpay shall be based on the earnings that the
employees normally would have received during the applica-
ble period, less any net interim earnings, with appropriate in-
terest.
Respondent shall be ordered to restore the status quo ante
by restoring the conditions it unilaterally changed and by
continuing them in effect until it fulfills its bargaining obli-
gation, and to make employees whole for any loss of wages
or other benefits due to Respondent’s unilateral actions, with
interest, in accordance with Ogle Protection Service, 183
NLRB 682 (1980).
[Recommended Order omitted from publication.]
Frank F. Rox Jr., Esq., for the General Counsel.
Velma L. Jackson, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. On May 7,
1991, I issued a decision in this proceeding finding that
Tuskegee Area Transportation System (TATS or Respondent)
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). I found that Respondent did so by
interrogating employees about their union activities and sen-
timents, and the union activities and sentiments of fellow
employees; by threatening employees with reprisals, includ-
ing plant closure, for engaging in union activities; by solicit-
ing grievances from employees and impliedly promising to
remedy them in order to discourage employees from engag-
ing in union activities; by terminating employee Oliver
Hooks because of his activities on behalf of, or support for,
Amalgamated Transit Union, Local 1600 (the Union); by
unilaterally changing the work schedules of employees and
thereby terminating employees Louis Mobley, Jerome Ham-
monds, and Jorge Huff, without notifying the Union or giv-
ing it an opportunity to bargain, and in part because the
named employees supported the Union. I ordered that Re-
spondent cease and desist from such unlawful activities, and
I ordered Respondent to take certain affirmative action to
remedy these violations of the Act.
Respondent filed exceptions to my decision with the
Board. On November 19, 1991, the Board issued an Order
remanding this proceeding to me for a limited purpose as in-
dicated below. The Board noted that in finding Respondent
had unilaterally changed the work schedules of employees,
thereby terminating Mobley, Hammonds, and Huff, without
notifying the Union or giving it an opportunity to bargain
about such matters, I quoted and relied in part on a letter
dated November 28, 1989, which was distributed to employ-
ees on that date. Such a letter was indeed distributed on that
date. In my decision, however, I mistakenly quoted not from
the letters distributed to employees but from a similar letter
given to Reginald Wall, who was a statutory supervisor.
Since I appeared to reach certain conclusions and make cer-
tain credibility resolutions on the bases of the letter quoted,
the Board remanded this proceeding to me for reanalysis of
the evidence ‘‘in light of all the letters sent by the Respond-
ent.’’
First, I note that the remand does not affect my findings
that Respondent unlawfully interrogated employees about
their union activities; threatened employees with reprisals, in-
cluding plant closure, for engaging in union activities; solic-
ited grievances from employees; or terminated employee Oli-
ver Hooks because of his activities on behalf of Amal-
gamated Transit Union, Local 1600. All of those findings are
undisturbed and serve as the backdrop for Respondent’s uni-
lateral change of employee work schedules.
I correctly stated in my earlier decision that on November
28, 1989, Respondent distributed a letter to employees noti-
fying them of a ‘‘cutback in staff.’’ The letter sent to Super-
visor Reginald Wall, which I quoted in my earlier decision,
is very similar to but slightly different from the letter given
to statutory employees. The letter to Supervisor Wall states
a specific date of December 8, 1989, on which his position
‘‘is being phased out.’’ The letters to statutory employees
Hammond and Huff state in their entirety:
I am writing this letter to inform you that due to the
increased cost of workmen’s compensation insurance
and TATS inability to secure an increase in operating
capital from GLI, we must cut back in staff by employ-
ing persons who can work both, the morning and
evening, shifts. If you feel that your schedule will allow
you to work both shifts, please contact me immediately
for consideration. If not, you will be allow [sic] to work
until a replacement if [sic] found.
I want to take this opportunity to thank you for the
service you have rendered to the Tuskegee Area Trans-
portation System, and I look forward to a continue [sic]
good working relationship.
As I stated in my earlier decision, Respondent argued in its
posttrial brief that ‘‘this letter was intended only to generate
discussion.’’ I noted that Respondent appears to argue by im-
plication that the letter did not effect a change in working
conditions of employees. I rejected that argument, and I do
so again. The letter to Hammond and Huff, as well as the
version given to Supervisor Wall, states on its face that Re-
spondent ‘‘must cut back in staff.’’ In the version of the let-
ter given to statutory employees, it states, ‘‘We must cutback
in staff by employing persons who can work both, the morn-
ing and evening, shifts.’’ As I found in my original decision,
TATS was awarded a minority subcontract to provide morn-
ing and afternoon rush hour bus service limited to only two
routes of MARTA (Metropolitan Atlanta Rapid Transit Au-
thority). Because Respondent has no work for drivers be-
tween the morning rush hour and the afternoon rush hour,
Respondent hired full-time MARTA drivers who would work
either morning or afternoons for Respondent when not sched-
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
uled to work with MARTA. There is no question Respondent
knew that by limiting employment to persons who could
work both the morning and evening shifts, its employment
of full-time MARTA drivers would be eliminated. That is
precisely why Respondent told employees, ‘‘If you feel that
your schedule will allow you to work both shifts, please con-
tact me immediately for consideration.’’ That Respondent
was in fact terminating these full-time MARTA drivers from
its employment is shown as well by the statement that if they
are able to meet Respondent’s time demands, they should
contact Respondent ‘‘immediately for consideration.’’ I reit-
erate my earlier finding that the letters distributed to employ-
ees on November 28 effectively terminated their employ-
ment. For the reasons stated in my earlier decision, I find
that this unilateral change violated Section 8(a)(1) and (5) of
the Act.
Also for the reasons stated in my earlier decision, I reject
the claim by John Wright, Respondent’s owner, that he in-
tended to retain all the MARTA drivers, but to work them
on charter bus routes. The letters to employees say absolutely
nothing about being retained in different positions. Further,
as I indicated in my earlier decision, this claim by Wright
is totally inconsistent with the letter to employees which
state that ‘‘Due to the increased cost of worker’s compensa-
tion insurance . . . we must cut back in staff.’’
Finally, I reject for the reasons stated in my earlier deci-
sion Respondent’s claim that MARTA drivers were never
terminated but were simply permanently replaced when they
went on strike on December 4. As I stated therein, Wright
is simply not a credible witness, and I reject his contrived
testimony regarding the strike. My assessment of Wright’s
credibility is in no way dependent on the phraseology or con-
tent of the November 28 letter to employees, but rather on
my observation of him as a witness. I withdraw my finding
that the letter to employees effectively terminated their em-
ployment as of December 8, but I reiterate my finding that
Respondent unilaterally effected the change in working con-
ditions on November 28 which had the effect of construc-
tively terminating all Respondent’s employees who worked
for MARTA. Further, I reiterate my finding that the picket-
ing by employees on December 4 was actually the result of,
and in protest of, Respondent’s unlawful unilateral action
which resulted in their termination. Finally, for the reasons
stated in my earlier decision, I find that the November 28
change in operations was motivated at least in part by a dis-
criminatory intent. The evidence supporting that conclusion
is discussed in my earlier decision and is in no way depend-
ent on the phraseology or content of the November 28 letter
to employees. In conclusion, therefore, I reiterate my earlier
finding that on November 28, 1989, Respondent
discriminatorily and unilaterally changed the work schedules
of employees which resulted in the termination of employees
Mobley, Hammonds, and Huff, and Respondent thereby vio-
lated Section 8(a)(1), (3), and (5) of the Act.
This supplemental decision does not require any modifica-
tion of my earlier decision regarding conclusions of law, the
remedy, the remedial Order, or the attached notice to em-
ployees. Accordingly, those matters remain unchanged.1