United Services for the Handicapped

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 823 (N.L.R.B. 1980)

UNIT ll) SRVICT S F()R 1IIF tIANI)ICAPPIAt'I)
United Services for the Handicapped and Joseph
McHenry and Kevin Ward arid United Food
and Commercial Workers International Union,
Local No. 698, AFL-CIO t. Cases 8-CA-11710,
8-CA-11756-3, and 8-CA-11762
August 27, 1980
DECISION AND ORDER
B CHAIRMAN FANNING ANI) MFliBI:RS
JENKINS ANI) TRUF.SDAI-E
On October 9, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief. Respondent
subsequently filed cross-exceptions, a brief in sup-
port thereof, and an answering brief to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.3
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) of the Act by dis-
charging employees Adrian Coleman, Mary Gattis,
Elvis Hollinger, Joseph McHenry, Richard Ter-
rass, and Kevin Ward for engaging in union activi-
ties. Additionally, the Administrative Law Judge
concluded that Respondent violated Section 8(a)(l)
of the Act during February and March 1978 by the
following conduct: (1) Director of Transportation
Joseph Scherer's statement to McHenry that the
union movement would cause Respondent to close
down; (2) Supervisor Melvin Owens' separate
threats of discharge to employees Guy Boles,
Miller Horns, Ward, and Coleman if they became
involved in protected activities; (3) Owens' coer-
' The name of the Charging Party, formerly Retail Clerks Internation-
al Union. ILocal No 698. AFL-CIO. is amended to reflect the change
resulting from the merging of Retail Clerks International Un itand
Amalgamated Meatcutters and Butcher Workmen of North America. on
June 7 1979.
i Respondent has excepted to certain credibility finldiig, niade hby tI
Adminlistrativec I a Juldge is the Board's essablished policy not to
overrule an adminlstralle las judge's resolulions with rlecl to redi-
nility unless the clear prepolllerance of all of the relevant evidcnce coin-
,inces us that the reslutlllons aIre incorrect Standurd Dr,, Ifall ProdliL
Inc. 91 NRB 544 (1950). enfd lX, F 2d 362 (d Cir 1951) We hae
carefully examined Ihe record and find no basis fr reversing his flidings
:' he General Counsel hae xcepted to the Adrilliliril ise l.as
Judge's failure to recomnmend hat itelcrest ilI hackpa) should b cnomput-
ed at the rle of perlent per annln We fiutilt lo merit i1 this coitei-
tlon See Iorid Seel Crporltliotl. 231 NRB I 651 (19771
Member Jenkins sould aard lltcrest on the backpa, due i a.ccord
ance wsith his dTisseit i Ovinpw icdwal (orporauio, 25t NI R N II
(198))
251 NLRB No. 117
cive interrogation of employee Jessica King as to
why she became involved in protected activities;
and (4) Operations Supervisor Janet Holeman's im-
plied threats to Terrass that, as a probationary cnl-
ployee, he would lose his job if he engaged in pro-
tected activities. We adopt these findings of the
Administrative Law Judge.
The General Counsel has excepted to the Ad-
ministrative Law Judge's failure to find additional
8(a)(1) and (3) violations, and to his failure to rec-
ommend a bargaining order remedy. As discussed
below, we find merit in these exceptions.
The Administrative Lacw Judge did not consider
certain conduct engaged in by Respondent which.
according to the General Counsel, further violated
Section 8(a)(l) and (3) of the Act. Although those
activities alleged as unlawvful by the General Coun-
sel were not described with specificity in the com-
plaint, the matters were fully litigated at the hear-
ing. We have long held "that when an issue relat-
ing to the subject matter of a complaint is fully liti-
gated at a hearing . . . the Board [is] expected to
pass upon it even though it is not specifically al-
leged to be an unfair labor practice in the com-
plaint."4 Accordingly, we find that Respondent
further violated Section 8(a)(l) and (3) of the Act
as follows:
1. The record establishes that employee
McHenry drafted a petition on behalf of employees
for improved working conditions5 which he
handed to his supervisor on February 7, 1 97 8 .
;
McHenry's uncontroverted testimony is that laiter
that day he was warned that drivers would not be
able to tolerate the additional work rules Respond-
ent planned to impose if they selected a union as
their bargaining representative. He was also given
a verbal warning for excessive tardiness and absen-
teeism. The following day, although he arried at
work early, McHenry was given a written repri-
mand and placed on 90 days' probation, allegedly
for the same offenses. Previously, McHenry had
been orally warned about tardiness once in January
but had received no other reprimands.
With respect to the General Counsel's allegations
concerning these incidents, we note that the record
is replete with evidence of Respondent's animus
toward its employees' exercise of their Section 7
rights. Indeed, McHenry's unrebutted testimony es-
tablishes an unlawful threat directed to him on
February 7 to use more onerous working condi-
tionF, if employees selected the Union, a threat
I llfof r, Ied SIru. 112 NI R II lii t. 1137 l h5;l)
1 iet petitionl as igned hy it driv etrs .ainld speciiitld 'i1e rod .
s.liich inludCd a As.lgC Ilicre.. oveIrilmc pay. proper u.llIilllell , .1
huskes .ld dl. , vlo ntiti ' hasmcitll. to be met inin tlditelX
All L.lc, lhereill ie ill 117S. utlles othersisc illIdCi.ilt
s2 "
824 DI). CISI()NS ()1: NA I()NAL. .ABO(R RELATIONS BOARD)
which was coupled with Respondent's oral repri-
mand concerning tardiness. Given the evidence of
Respondent's animus, its knowledge of McHenry's
activism on behalf of his fellow employees, and the
timing of Respondent's disciplinary action, we are
satisfied that the General Counsel has made out a
primna Jaicie case that Respondent's reprimand and
its decision to place McHenry on probation were
in retaliation for his protected activity and hence
violated Section 8(a)(l) of the Act. Additionally,
we conclude that Respondent further violated Sec-
tion 8(a)(l) by threatening its employees with more
stringent work rules in the event they selected a
union to represent them.
2. Driver Gattis testified that, on or about Febru-
ary 7, Owens told her that all those employees
who had signed the employee petition would prob-
ably lose their jobs. Linda Wiley, another driver,
also stated that Owens had made a similar remark
to her that same day. Since O)wens did not testify
at the hearing, this testimony is uncontrovcrted,
and we find that ()Owenls' relmarks constituted a
threat to discharge employees for engaging in pro-
tected activities in violation of Section 8(a)(1) of
the Act.
3. Wiley further testified that Director of Trans-
portation Scherer told her, on or about February 8,
that even if the Union did win the election, the
Company would go bankrupt, and all the employ-
ees would lose their jobs anyway. Additionally,
Wiley stated that on two other occasions Scherer
threatened her with reprisals, including discharge,
if she continued her involvement in union activi-
ties. Although Scherer denied having any conver-
sations with Wiley concerning the employees'
union activities, the Administrative Law Judge dis-
credited his testimony in other respects. Thus, we
credit Wiley's testimony and find that Respondent
violated Section 8(a)( 1) by threatening to close
down operations or to discharge employees be-
cause of their union activities.
4. Terrass testified that, on February 24, Scherer
told a group of striking drivers, "I hope you realize
that you have blown your free coffee." Scherer
stated that, in January, he had indicated to employ-
ees that he would try to get coffee for them, but
claimed that he did not mention anything concern-
ing this matter during the employees' strike. Since
the Administrative Law Judge resolved other con-
flicts between the testimony of Terrass and Scherer
in favor of Terrass, we credit Terrass' testimony
concerning this incident. Accordingly, we find that
Respondent, by threatening employees with loss of
benefits in retaliation for their work stoppage, vio-
lated Section 8(a)(l) of the Act.
5. Terrass also testified that, while on strike in
late February, he and two other employees went to
the local headquarters of United Cerebral Palsy,
one of Respondent's largest clients, to meet with
that organization's executive director, Betty Raven-
scroft. The employees asked Ravenscroft for per-
mission to solicit union authorization cards from
Respondent's nonstriking drivers who might be
waiting for patients outside the building. Raven-
scroft granted the request. As Terrass and the
others were discussing the Union with several non-
striking drivers, Scherer arrived at the entrance of
the building. Scherer asked one of the drivers,
Mary Davis, whether the strikers were interfering
with her work. After Davis replied that they were
not, Scherer asked the strikers what they were
doing there. The strikers responded that they had
gotten permission from Ravenscroft to meet with
the nonstriking drivers in front of the building.
Scherer remarked, "Well, we'll see about that,"
shook his head, and left. In his testimony, Scherer
not only corroborated Terrass' version of the inci-
dent, but also admitted that someone might have
told him that the strikers were passing out union
cards in front of the United Cerebral Palsy build-
ing. Based on these facts, we find that Scherer
went to the United Cerebral Palsy headquarters to
determine the identities of the strikers who were
soliciting cards and to interrogate them concerning
their union activities. Thus, we conclude that Re-
spondent engaged in unlawful surveillance and in-
terrogation of its employees in violation of Section
8(a)(1) of the Act.
6. After unlawfully discharging Terrass for dis-
criminatory reasons on March 1, Respondent subse-
quently recalled him to part-time work at the end
of the month. In early July, as the Administrative
Law Judge found, Terrass complained to Scherer
that newly hired drivers under the Comprehensive
Employee Training Act (CETA) were working full
time while he continued to work only 2 or 3 hours
per day. Terrass subsequently informed CETA offi-
cials that Respondent was not complying with its
regulations. Thereafter, on July 28, Respondent's
administrator, Rick Miller, issued a written warn-
ing to Terrass for his failure to follow the griev-
ance procedure established by Respondent. Ac-
cording to Miller's memorandum, "[T]his violation
occurred when [Terrass] went directly to Coy
Stewart of CETA with [his] complaint without
taking the proper steps outlined in the grievance
procedure which [Terrass] signed." Miller also
stated that Respondent would take disciplinary
action, including suspension or termination, if Ter-
rass continued to engage in such activities. The
personnel committee of Respondent's board of
UNITED SERVICES FOR 'I HE HANI)I('APPEI'iD s
trustees subsequently denied Terrass' request that
the written reprimand be removed from his person-
nel records.
The Board has held that, when an employee
makes a complaint concerning working conditions
to a governmental agency, he is acting not only in
his own interest, but is also attempting to enforce
governmental regulations for the mutual aid and
protection of all employees.7 Thus, Terrass' action
in protesting his part-time status to CETA officials
plainly constituted protected concerted activities
within the meaning of Section 7 of the Act. We
therefore conclude that Respondent has further
violated Section 8(a)(l) of the Act by issuing Ter-
rass a written reprimand and by threatening to dis-
charge him for engaging in such activity.
7. The record further shows that Wiley was due
for a semiannual wage increase in April. After
Scherer denied her raise, Wiley asked him why he
had done so. Wiley testified that Scherer stated she
would not get a raise because of her union activi-
ties. According to Scherer, he did not recommend
Wiley for a pay raise due to her failure to cooper-
ate with supervisors. For the reasons set forth
above, we credit Wiley's version of this conversa-
tion. Accordingly, we conclude that Respondent
has violated Section 8(a)(3) of the Act by refusing
to grant Wiley a wage increase for discriminatory
reasons.
Finally, we find, contrary to the Administrative
Law Judge, that Respondent has refused to recog-
nize and bargain with the Union in violation of
Section 8(a)(5) of the Act. We find that this viola-
tion, as alleged in the complaint, occurred on Feb-
ruary 27 when the Union, with a card majority, de-
manded recognition and bargaining, and Respond-
ent refused. We further find that the unfair labor
practices Respondent committed preclude the hold-
ing of a fair election and that the lingering effects
of Respondent's past coercive conduct render un-
likely the possibility that traditional remedies can
insure a fair election. We therefore conclude that
the Union's card majority provides a more reliable
test of employee representation desires and better
protects employee rights than would an election,
and that the policies of the Act will be best effectu-
ated by imposition of a bargaining order to remedy
such violations.
In so finding, we find unpersuasive the Adminis-
trative Law Judge's analysis that a bargaining
order is not warranted because Respondent's offi-
cials had a "dual purpose" for engaging in unlawful
conduct in that they "were as well concerned with
the public welfare as they were with the statutory
concept of collective bargaining." We find, con-
7 Rodalt', Ixtpros. Inc, 217 Nt R 27. 27 (197 '5)
trary to the Administrative Law Judge, that Re-
spondent's status as a nonprofit charitable organiza-
tion cannot excuse its pervasive unfair labor prac-
tices. Whether or not Respondent genuinely feared
that its employees' involvement in union and other
protected activities would tend to discourage
public contributions, such fears are irrelevant to the
employees' right to engage in conduct protected by
the Act, and are insufficient cause for us to deviate
from our normal standards for fashioning a remedy
for Respondent's extensive and egregious unfair
labor practices. As the Administrative Law Judge
found, Respondent violated Section 8(a)(1) by re-
peatedly threatening employees with discharge and
by engaging in coercive interrogation; and violated
Section 8(a)(3) by discharging six employees he-
cause of their union activities. We have concludled
that Respondent further violated Section 8(a)(1) of
the Act in other instances when it threatened em-
ployees with discharge and additional work rules if
they supported the Union, withdrew its promise to
provide employees with free coffee, engaged in co-
ercive interrogation and surveillance of employees'
union activities, and issued written reprimands to
employees and placed them on probation for en-
gaging in protected concerted activities: and violat-
ed Section 8(a)(3) by discriminatorily denying an
employee a wage increase. It is our opinion that
Respondent's employees, regardless of the work
they perform, have the same Section 7 right to
engage in union or other protected activities as do
employees of commercial enterprises and, thus, are
entitled to any remedial measures, including the im-
position of a bargaining order, which may be re-
quired to remedy unlawful interference with such
rights.
We note that the unfair labor practices described
above were committed by Respondent's supervi-
sors at all levels, including its administrator, direc-
tor of transportation, and operations supervisor.
Moreover, the consistent repetition of the same un-
lawful conduct, e.g., various threats of discharge,
suggests, and we so find, that the violations were
part of a general campaign to destroy employee
support for union and other protected activities. It
is also clear that many of these violations were of
an extremely serious nature. The Board and the
courts long ago determined that threats to close a
facility because of union activity are among the
most serious forms of interference with protected
employee rights,8 and the Supreme Court has
noted that they are among the most effective
means for destroying election conditions for a
s l;.'xth '0rl. 'Ar lcrs ,Unt,, cr . , Mrl xl )arrugrm. AI.fJnu M !fr,,.la ' ( .
ISO LI S 263 (1I6'5) lrwg N I , ) d h IrR ' %I.rkr . 17t1 NLRII S2
(lt969)2. tuffd 434 : 2d 1051 tlN h lr 17Till
tI)tCISIO(NS ()1 NA I ()NAI. I AIi()R RI.A I I()NS l()ARI)
longer period of time than any other unfair labor
practices. Furthermore, Respondent's conduct in
threatening to discharge and discharging employees
because of their protected activity constitutes un-
lavful activities which have long been classified as
misconduct going "to the very heart of the Act.""'
These unfair labor practices make it clear to the
employees that the penalties for engaging in union
or other protected activities will be severe. Thus,
applying the criteria set forth by the Supreme
Court il Gissl. supra, we conclude that the possi-
bilitv of erasing the effects of the past unfair labor
practices and ensuring a fair election by the use of
traditional remedies is slight. Rather, the employee
sentiment expressed through the authorization
cards is a more reliable indicator of the employees'
desire for representation and will be better protect-
ed by a bargaining order.
Tti R.MIi)Y
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(l), (3), and (5) of the Act,
we shall order that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the purposes of the Act.
Thus, having found that Respondent has unlaw-
fully refused to bargain collectively with the
Union, we shall order that Respondent, upon re-
quest, recognize and bargain collectively i good
faith concerning rates of pay, wages, hours, and
other terms and conditions of employment with
United Food and Commercial Workers Internation-
al Union, Local No. 698, AFIL-CIO, as the exclu-
sive bargaining representative of the employees ii
the unit found appropriate, and, if an understanding
is reached, embody such understanding in a signed
agreemient. Further, we shall require that Respond-
ent offer Adrian Coleman, Mary Gattis, Joseph
NMcHcnryv, and Kevin Ward immediate and full re-
instatement to their former positions or, if such po
sitions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
any other rights and privileges. Respondent will
also make whole these employees, together with
Elvis Hollinger. Linda Wiley, and Richard Terrass,
for any loss of earnings they may have suffered by
reason of Respondent's discrimination against them
in the manner prescribed in Af W Woolworth Com-
pany, 90 NLRB 289 (1950), together with interest
as provided in F'lorida Steel Corporation, supra. I I
We shall further direct that Respondent expunge
"%I R B s (o I P, ( Im 195 Lt S 75 ( I'4)
IG Sc. cS. \ / R I:.n, wh , t% nu/a, ii.. i (G', 12() I: 21 5s2.
A6 (411 (l I 941 )
' S-. gnrall I Plmlwhn l & llcumlm (o, 18 NRB 716 (1 62)
from its records any documents relating to the
written reprimands issued to employees Richard
Terrass and Joseph MctHenry. Finally, we shall
issue a broad cease-and-desist order since the wide-
spread misconduct engaged il by Respondent
clearly "demonstrates a general disregard for [its]
employees' fundamental statutory rights."12
CONCI C:SIONS ()I IAW
1. The Respondent, United Services for the
Handicapped, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. United Food and Commercial Workers Inter-
national Union, Local No. 698, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By the following conduct, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(I) of the Act:
(a) Threatening employees with reprisals, includ-
ing discharge, if they supported the Union.
(b) Threatening employees that Respondent
would be bankrupt and that all employees would
lose their jobs if they selected the Union as their
collective-bargaining representative.
(c) Threatening employees with additional work
rules if they selected a union to represent them.
(d) Interrogating employees about their union ac-
tivities and sympathies.
(e) Engaging in surveillance of its employees'
union activities.
(f) Creating less favorable working conditions for
employees by revoking privileges previously grant-
ed in order to induce them to refrain from support-
ing the Union.
(g) Issuing written reprimands to employees, and
placing them on probation, for engaging in union
or other protected activities.
4. By discharging employees Adrian Coleman,
Mary Gattis, Elvis Hollinger, Joseph McHenry,
Richard Terrass, and Kevin Ward for engaging in
union activities, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
5. By refusing to grant employee Linda Wiley a
wage increase because of her union activities, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
6. All full-time and regular part-time bus drivers,
dispatchers and maintenance men, but excluding all
office clerical employees and professional employ-
ees, guards and supervisors as defined in the Act,
l! Sc Iti /t [ -du . 1rc .I 242 NI RH 1357 (1979)
8 2 (
UNItIEI) SF:RVICEtS )R tit IIANI)I(A I'I'II)
constitute a unit appropriate for the purposes of
collective bargaining wvithin the meaning of Section
9(b) of the Act.
7. Since February 27, 1978. the Union has been
the duly designated representative of a majority of
the employees in the collective-bargaining unit de-
scribed above.
8. By refusing to recognize and bargain with the
Union as the exclusive collective-bargaining repre-
sentative of its employees in the above-defined unit,
Respondent, since February 27, 1978, has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Services
for the Handicapped, Akron, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discrimi-
nating against employees because of their union or
other protected activities.
(b) Threatening employees with closure of its op-
erations in retaliation for their union activities.
(c) Threatening its employees with discharge be-
cause of their union or other protected activities.
(d) Threatening its employees with additional
work rules if they select a union to represent them.
(e) Coercively interrogating its employees con-
cerning their union sympathies and activities.
(f) Engaging in the surveillance of its employees'
union activities.
(g) Creating less favorable working conditions
for its employees by revoking job-related privileges
because of their union activities.
(h) Issuing written reprimands to employees, and
placing them on probation, because of their in-
volvement in protected activities.
(i) Refusing to grant its employees wage in-
creases in retaliation for their involvement in union
and other protected activities.
0i) Refusing to recognize and bargain in good
faith with United Food and Commercial Workers
International Union, Local No. 8)X, AF L-CIO. as
the excluLsive representati ive of its enlploces iii the
following appropriate unit:
All full-time anid regular part-time bus drivers.
dispatchers and ainitenrance men, but exclud-
ing all office clerical eiployces ad profes-
sional eploees. guards and super- isors is
defined in the Act.
(k) Ini any other manner interfering itnh. r-
straiinig. or coercing eniployees in tile exercise ()f
their right to self-organization to form, joinl, o,
assist United Food and Commercial Workers Inicr-
national Union, Local No. 698, AFL.-CI(). or a,
other labor organization, to bargain collectivcl5
through representatives of their own choosing and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mnltual aid or
protection, or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Adrian Coleman Mary Gattis, Joseph
McHenry, and Kevin Ward immediate and full re-
instatement to their former jobs or, if those jobs no
longer exists, to substantially equivalent positions
without prejudice to their seniority or any ohrc
rights and privileges previously enjoyed.
(b) Make whole the employees named abovcc, to-
gether with Elvis Hollinger, Richard Terra.s, and
Linda Wiley, for any loss of earnings they maN
have suffered by reason of the discrimination prac-
ticed against them, in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Expunge from its records all documents relat-
ing to the written reprimands given to Richard
Terrass and Joseph McHenry in retaliation for
their involvement in protected activities.
(d) Upon request, recognize and bargain collec-
tively in good faith concerning rates of pay, xsagcs.
hours, and other terms and conditions of empllo!-
ment with United Food and Commercial Workers
International Union, Local No. 698, AFL-CI(). as
the exclusive bargaining representative of the emii-
ployees in the appropriate unit, and, if an under-
standing is reached, embody such understandinig il
a signed agreement. The appropriate collecti c-hal-
gaining unit is:
All full-time and regular part-time bus drix -rs.
dispatchers and mainternance mien. butl cxclud
ing all office clerical employees anid profes-
sional employees, guards ad supervisors as
defined in the Act.
(e) Preserve and, upoin request. lllake available to
the Board or its agents. for exainatiion and cop!-
ing. all payroll records. social security paylnlClll Ire-
cords, tillitecar-ds. persoiInl records illd repot'lls,
and all other records mlecCCsar\ to ilvly/C tc
amount of ;ackpa dluti under the ells o(1 thls
(rder.
t) Post iat its place of businescs in Akron. ()hio,.
copic's of Ic attached notiCe Illilke 'Al'ppii-
, 11
X2X I)ECISIONS ()F NATI()NAL LAI()R RELATIONS BOARI)
dix." :' Copies of said notice, on forms provided by
the Regiona! Director for Region 8, after being
duly signed by its representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, 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.
(g) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I l Ih cc l Ihatl l (his ()rdcr is enforced by a Judgment of a United
Stlat. , C l't of Appeals, the wods i the notice reading "Posted hy
Order of( the Natialll I.ahir Relltiontlh Bl ard" shall read "Polsted Pursu-
Alit i I .a lIudgIl IIl 1' o lihc lnited States Court il' Appeals Enforcing all
()i1 li 1 of 1th1 Naionlil [.lllr Relatills B;kard
APPENDIX
No-rici: TO EMPLOYEES
POSTF.I) B ORDERI) OF THE
NATIONAI. LABOR RgI' ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage ill self-organization
T'Io form, join, or assist any union
''o bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WEi wlli NO-I discharge or in any other
manner discriminate against employees because
of their union or other protected activities
W'I Wll NOT' threaten our employees with
the closure of our operations in retaliation for
their union or other protected activities.
We will not threaten our employees with
discharge because of their union or other pro-
tected activities.
Wi. wvii I NO[' threaten our employees with
additional work rules if they select a union to
represent them.
WE WIl.L NOT coercively interrogate our
employees concerning their union sympathies
and activities.
WI: Will. NO'I engage in the surveillance of
our employees' union activities.
WE Wll.l NOT create less favorable working
conditions for our employees by revoking job-
related privileges because of their union activi-
ties.
W: WIll NOT issue written reprimands to
our employees, or place them on probation,
because of their involvement in protected ac-
tivities.
WE WILL NOT refuse to grant our employees
wage increases in retaliation for their involve-
ment in union and other protected activities.
WE WILL NOT refuse to recognize and bar-
gain in good faith with United Food and Com-
mercial Workers International Union, Local
No. 698, AFL-CIO, as the exclusive repre-
sentative of our employees in the unit de-
scribed below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
join or assist United Food and Commercial
Workers International Union, Local No. 698,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collec-
tive bargaining and other mutual aid or protec-
tion, or to refrain from any or all such activi-
ties.
WE WL offer Adrian Coleman, Mary
Gattis, Joseph McHenry, and Kevin Ward irn-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without preju-
dice to their seniority or any other rights and
privileges previously enjoyed.
WE WlltI make whole each of the four
above-named employees, together with Elvis
Hollinger, Richard Terrass, and Linda Wiley,
for any loss of earnings they may have suf-
fered by reason of our discrimination practiced
against them, plus interest.
WE Will.l. expunge from our records all doc-
uments relating to the written reprimands
given to Richard Terrass and Joseph McHenry
in retaliation for their involvement in protect-
ed activities.
Wi. wii.i, upon request, recognize and bar-
gain collectively in good faith concerning rates
of pay, wages, hours, and other terms and con-
ditions of employment with United Food and
Commercial Workers International Union,
Local No. 698, AFL-CIO, as the exclusive
bargaining representative of the employees in
the appropriate bargaining unit, and, if an un-
derstanding is reached, embody such under-
UNITED SERVICES FOR THE HANDICAPPEI'D
standing in a signed agreement. The appropri-
ate bargaining unit is:
All full-time and regular part-time bus driv-
ers, dispatchers and maintenance men, but
excluding all office clerical employees and
professional employees, guards and supervi-
sors as defined in the Act.
UNITED SERVICES FOR THE HANDI-
CAPPED
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: A hear-
ing in this proceeding was held before me in Akron,
Ohio, on June 25-27, 1979, on complaint of the General
Counsel against United Services for the Handicapped,
herein called the Respondent. The complaint issued on
January 31, 1979, upon three separate charges-Case 8-
CA-11710 filed by Joseph McHenry, an individual, on
February 15, 1978; Case 8-CA-1762 filed by Retail
Clerks International Union, Local No. 698, AFL-CIO,
on March 6, 1978, herein called the Union; and Case 8-
CA-11756-3, filed by Kevin Ward, an individual, on
March 8, 1978. The issues raised are whether the Re-
spondent violated Section 8(a)(1) of the Act by making
coercive statements to employees, whether it violated
Section 8(a)(5) by illegally refusing to bargain with the
Union on request-and thereby subjecting itself to a re-
medial bargaining order now, and whether it violated
Section 8(a)(1) and (3) by discharging employees and by
discriminating against them because of their concerted
and/or union activities. Briefs were filed by the General
Counsel and the Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
United Services for the Handicapped is a nonprofit
corporation operating under the laws of the State of
Ohio. It is a United Way agency which operates both a
preschool for children aged 2-5 years old with learning
disabilities, and a transportation division, which services
its own school, The Akron Headstart Program, and the
clients of Akron area public services agencies. The
money which funds this service operation, in excess of
$800,000 in the year 1978, comes from governmental
sources, Federal and local, and from contributions made
by the public through charitable groups. The word "rev-
enue" in the complaint is a misnomer, there is no income
from investments here, or profits. The organization made
purchases directly from points located outside the State
of Ohio of at least $3,000 in 1978. During the same
period, the Respondent purchased goods valued in excess
of $50,000 indirectly from points located outside the
State. Of the $800,000 gross amount spent annually, ap-
proximately S620,(X) is allocated to the Respondent's
transportation department.
I find that the Respondent is engaged in commerce
within the meaning of the Act, and is subject to the juris-
diction of the National Labor Relations Board.
11. THE I AHOR ORGANIZATION INVOI VI)
I find that Retail Clerks International Union, Local
No. 698, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
InI. THE NFAIR I AHOR PRACTICES
A. . Picture of the Case
The dispute which gave rise to this case arose when
the approximately 25 bus and van drivers who were em-
ployed by the Respondent organization decided to take
joint action to improve their working conditions. They
first submitted a petition-signed by many of them-to
management on February 7, 1978, listing their complaints
and demands. Denied the opportunity to deal with the
managers collectively-i.e., as a group-they struck on
Friday, February 24. On Monday, February 27, still on
strike, they turned to the Union for support. That day,
and the next, the Union demanded recognition as exclu-
sive bargaining agent, but was rejected. Also on Tues-
day, February 28, all the strikers made unconditional
offers to return to work, and most of them in fact were
restored to their regular jobs the next day.
Apace with this, on February 27 the Respondent dis-
charged a striker named Kevin Ward. The complaint al-
leges that he was dismissed for having participated in the
concerted activities, and for having joined the strike, a
statutory violation. Denying illegal motive, the Respond-
ent asserts, in defense, that Ward was discharged for just
cause, because of his unsatisfactory performance as an
employee. On March 1, as the drivers were starting to
work again, Mary Gattis, one of the dispatchers, was
also discharged. Again the complaint alleges this dismiss-
al was a violation of Section 8(a)(3), the discharge of a
striker because she was a striker. Here the Respondent
admits-as indeed its personnel records show-the
reason for her release was the fact that she took part in
the strike. But in defense the Respondent contends she
was a supervisor within the meaning of the Act, and
that, therefore, it had a right to discharge her.
When the overall group of strikers presented them-
selves to start work on NWednesday, March 1, four of
them were told they had been replaced and were there-
fore no longer needed; these were Joseph McHenry,
Adrian Coleman, Elvis Hollinger, and Richard Terrass.
As to each, this denial of reinstatement that day is called
a violation of Section 8(a)(3). There came a time when
every one of these drivers was invited to come back.
Hollinger was recalled to his regular full-time job 1 week
later. McHenry was recalled on or about March 8, but
only given part-time work; he left in August because the
Respondent persisted in refusing to reinstate him to his
regular job. Terrass was recalled on about March 30, but
he too was only given part-time work; on July 17, the
Respondent did return Terrass to his regular job. Cole-
8 29
.~0 I) ISIO)NS ()1F NAI I()NA I ABOR RELATIONS OARKI)
man was recalled on April 1, also to do only part-time
work: he protested in aill and 3 days later left to seek
work clsevlhere because of the denial of his regular clm-
ployment.
This refusal, or ailure tlo reinstate all four of tlhese
drivers to their old, full-time jobs, is called a multiple
violation of Section (a)(3) in the complaint. The theory
in support is tofold The first is that this was an unfair
labor practice strike, if not from its inception cerlaiily
from Monday on, at least a protest against the illegal
firing of one of the ringleaders-Kevin Ward. Alterna-
tively, the argument goes, if it was no more than an co-
nomic strike, the strikers were entitled to reinstatement
anyway, and it is not true that any of the men had really
been replaced before that morning on Tuesday, February
28.
As to these four, at the hearing the managing agents
advanced more than one affirmative argument in excul-
pation of the refusal to give quick and full reinstatement.
The contentions made are at times inconsistent, and more
often not really proved by objective evidence.
And finally, there is the matter of refusal to bargain.
The complaint is aimed at winning an outright bargain-
ing order without holding an election.' This allegation,
however phrased,2 calls into play the Gissel principle.
N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969);
did the Respondent commit such unfair labor practices
apart from the fact it refused to bargain that it must be
ordered to bargain now?
B. Demand, Rejusal, Majority
The uncontradicted and, therefore, perfectly credible
testimony of George Hennigen, secretary treasurer of
I.ocal 698, is that on the afternoon of February 27, he
telephoned the Respondent's attorney, Edward Kemp,
said the Union represented a majority of the employees,
and asked would the employer extend recognition. Kemp
called back to say no, because the Respondent doubted
the National Labor Relations Board could exercise juris-
diction over its activities. The next morning Kemp called
Hennigen to reaffirm that position on the part of his
client. It was at that point, still during the early morning,
that Hennigen informed Kemp the employees would be
going back to the United Services location to start work
immediately. There followed written correspondence-
on March 1 and 3-between the parties reaffirming their
respective positions, demand again followed by refusal. I
find that both on the afternoon of February 27 and again
in the morning of February 28, the Respondent refused
to bargain with the Union on request.
There is no dispute as to the appropriate bargaining
unit. I find, as alleged in the complaint, and as admitted
in the ans wer, that all full-time and regular part-time bus
drivers, dispatchers and maintenancemen, employed at
the Respondent's Akron, Ohio, facility, but excluding all
I t Ih Unill filed a plentioll fi r a flioard-col ducled lectlion shortly
after Ihe rnlpl)iee. abandolilell d the ,triker roulte, but after wvinning a
liBoard I)ecsion and )ircctiorl of Flectilon holding hat he Board quill
asserl ulridiiliii ovCr his operillin. Ihe Unlion ithdrc. its Ilcetioll r-
( liipparc', /-t-ah /It . 212 NRHI 3,63 (1974). where the Hoard
said a IC. lliicatl S(a )(5 ,ilatiin s irrle il t t a hbarga inig order RIsuc
office clerical employees and professional employees,
guards and supervisors as defined in the Act. constitute a
unit appropriate for purposes f collective bargaining.
The parties stipulated that, as of the morning of Fbchru-
ary 27, there were 22 employees in this unit. They are il
dispute over Gattis--was she a supervisor? and over
Ward-was he illegally fired on February 27''
This agreement, as to a 22 employee-unit, holds firm
even as to the next day, except that the Respondent
would add to it some employees it says were hired either
on the afternoon of February 27 or on the morning of
February 28. These would be Kester, Hooks, Calabrias,
and Bowles.
For purposes of testing majority on either February 27
or 28, there is no need to resolve these separate issues
over inclusion or exclusion of the seven so listed persons.
If Ward and Gattis were added, as the General Counsel
argues, the majority claim gets better because both
signed union cards on February 27. If they are left out,
and the next five drivers-named here-were added, as
the Respondent would have it, it means that the total
complement in the unit was 27. Of the agreed upon 22
employees, 2 signed regular union cards dated February
26, 8 signed such cards dated February 27, ad 5 signed
on February 28. This means that no matter how the
numbers be used, 15 employees out of a maximum of
27-assuming for the moment inclusion of all 5 part-time
drivers the Respondent claims to have hired as strike re-
placements-had authorized the Union by the morning
of February 28. 1 find that the Union represented a ma-
jority of the employees in the appropriate bargaining unit
when the Respondent refused its bargaining request.
C. Violations of Section 8(a)(l)
Concerted activity started on February 6, when 16
drivers signed 2 documents, one addressed "To whom it
may concern," and one "To Michael A. Scocos," the di-
rector of the employing organization. The second, in
copies, was handed to Scocos on February 7, as well as
to Janet Holeman, the operations supervisor. It specifies
seven demands "to be met immediately," among them a
wage increase, overtime pay, "buses maintained more ef-
ficiently," "discontinued harassment," etc. To give great-
er clout to their attack upon management, the employees
turned to newspapers and radio for publicity and ap-
pealed for support also to the parents of preschool handi-
capped children, a major category of their passengers, or
"clients," as the witnesses called them. The result was
very descriptive articles in the local newspapers, report-
ing, in the usual inflammatory manner, charges and
countercharges-now back and forth-between the em-
ployees and management. Between February 7, when
these petitions, with their accompanying publicity cam-
paign, surfaced, and February 24, when the employees
struck, there were many conversations about the dispute
between employees and supervisors. A number of drivers
testified as to these talks, during which, according to the
complaint, coercive and therefore unlawful statements
were made by management. Joseph Scherer, director of
transportation and principal authority over the drivers,
denied having said anything to anyone violative of the
UNITED SERVICES F()OR THE HANDICAI'I'ED 831
Taft-Hartley Act, and attempted to explain all this talking
as relating to problems other than unionism, or collective
activity as such.
In order to evaluate what happened here in proper
perspective, it is important to keep in mind the very un-
usual and distinctive nature of the employing authority in
this case, as well as the function served by the work per-
formed by these bus and van drivers. To start with, this
is not a business; there is no profit-and-loss factor in-
volved at all. The money all comes from public funds
Federal grants, as some one said. Although many organi-
zational and charitable groups were mentioned through-
out the hearing-United Cerebral Palsy, Community
Action Councils, Head Start Program, Welfare Depart-
ment, Dial-A-Ride, United-Way, etc.-their precise rela-
tion, control, or contributions were not fully explained.
But that is not important; what is important is that while
the drivers are without question plain employees-no dif-
ferent from anyone who works for General Motors or
Uncle Sam-the managers, as their bosses, control their
destinies only in a very limited sense. In the end, how
generously the drivers are treated is decided by the liber-
alism largesse of the government of the times, and by the
charitable inclination of the public at any given moment.
There is another relevant, unusual, but very significant
element in this situation that must not be overlooked.
The passengers-or clients, whatever they are called-
carried by these drivers are all handicapped, that is, they
require very special handling. Many are in wheelchairs
and many are little children under school age who suffer
from one kind of handicap or another. The parents, or
other family members of such passengers, will naturally
be much more concerned, and easily alarmed, about the
safety of their transportation. One of the more heated
issues debated between the employees and management
here was the condition of the buses; as the newspaper re-
porters quoted the drivers, the vehicles were "too dan-
gerous to drive," they had "bad tires, bad brakes, faulty
steering, bad wiring and equipment." The managers, also
quoted in the papers, said all this was untrue, just a lot of
exaggeration. The matter of defective buses was, of
course, only one of the items touching upon their em-
ployment of which the drivers complained. The newspa-
per articles also reported on the subject of wage de-
mands, other economic issues, and general attitudes on
the part of management. Experience has shown that a
collective dispute of this kind always in the end involves
the rate of pay for work performed, each side will puff
and strain in defense of its position. What matters here,
however, is the pertinence of this factual aspect of the
dispute to the testimony about what was said by the
actors.
Driver Coleman testified that early in February
Scherer "called me into his office and said that some
statements prior to this that we gave them, to the papers,
. . .were very untrue and there is no way we could get
anything from what we said in the papers, and that was
it .... He said to me that the statements that were
made concerning USH were untrue in this paper, and
that there is no way that they would uphold anything we
said in there." Coleman also quoted Melvin Owens, an-
other supervisor: "Melvin Owens told me that because of
what was written in the paper also . . . he don't under-
stand how I could get myself involved and I shouldn't
get involved in anything that the drivers are getting
ready to do, and that I shouldn't ask him for any more
favors." As a witness Coleman kept rephrasing what
Owens had told him: ". . . he also said that he shouldn't
get involved in this, and because you got involved, you
are getting in this and I'm going to do my best to see
that you don't get involved in this, and don't work for
us, something to that effect."
Jessica King testified that 3 days after she signed the
employee petition Owens asked her "... why I signed
it, if I knew what I was doing when I signed it . . ."
Miller Horns recalled that Owens talked to him after he
signed the petition: "He informed me that I shouldn't
sign the petition because it could result in me losing my
job. And those who were thinking about signing also the
same thing could happen to them, loss of job." Richard
Terrass testified that as he was discussing the merits of
the petition with another employee on February 13, Ho-
leman, the supervisor, cut in with, "Before you answer
that, I want you to remember one thing. You are still a
probationary driver. I want you to pay close attention to
that before you make any decisions." This driver also re-
called Scherer calling him to the office on February 23:
". . . he showed me a copy of the article in the Beacon
Journal on unsafe buses. He asked if I had seen the arti-
cle . . . . He asked me what I thought of the article, and
I said that I agreed with the article and the charges that
were in the article . .. . He asked me how I could make
that judgment with the amount of time that I had been
there .... He also asked me if I knew the article had
hurt the agency's reputation, and since the agency did
basically depend on public contributions for their operat-
ing money, that it could jeopardize money coming into
the agency. We were trying to hurt the agency by it, and
I said no, I didn't want to hurt the agency .. .. He said
that he didn't agree with me, basically." Scherer also
talked to McHenry, on February 13: "1 was called into
his office and told that the article was irresponsible. I
was told that it was a very serious offense and it was a
low blow .... I said, if you had listened, we already
asked you to come to a couple of our meetings. If you
had listened to our demands, we wouldn't have gone
through the newspapers. He just repeated it was a low
blow . . . At that time, also, he alluded to the idea that
a union wouldn't work. That they would request higher
wages, that the agency wouldn't be able to pay, which
would then force the agency to close and we would all
be out of jobs."
There were like conversations during February 24,
when the drivers sat all day long in the lounge, refusing
to work and refusing to leave, as well as during the fol-
lowing week. Gattis was discharged on March 1. A few
days later, according to Guy Bowles, Owens said to him
"that I shouldn't become involved in the Union with the
people, that I wanted the union. He pointed out that
Mary Gattis lost her job and he said that I could lose my
job, and he said he didn't want to see me lose my job."
Owens did not testify and the above statements attrib-
uted to him therefore stand uncontradicted. Holeman re-
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called none of it. Scherer's defensive testimony on this
question of whether he improperly interrogated the driv-
ers or made coercive statements interfering with their
statutory rights is vague, evasive, and by no means in
clear conflict with the witnesses' versions. The only defi-
nite thing Scherer did was deny having threatened any
employee in any way. To what extent his concept of
threat-in the special circumstances of this case-jibes
with the purport of Section 8(a)(l) of the statute-is an-
other matter. However he may have phrased it, Scherer
did not deny having found fault with the drivers because
of their having gone to the news media. I credit the em-
ployee witnesses.
I find that by Scherer's statement to McHenry that the
union movement could cause the employer to close
down-a threat of discharge; by Owens' (1) statement to
Coleman not to become involved in the concerted activi-
ties, and that he, Owens, would do his best to see that
Coleman no longer worked-also a threat of discharge,
(2) interrogation of King as to why she signed the em-
ployee petition, (3) statement to Horns that signing the
employee petition could cause the loss of his job, and (4)
to Bowles that he, like Gattis, could be discharged; and
by Holeman's implied threat to Terrass that as a proba-
tionary employee he could lose his job if he joined in the
concerted activity, the Respondent violated Section
8(a)(l) of the Act.
1. The discharge of Kevin Ward
Ward was among the drivers who sat in the lounge all
day on Friday, February 24, starting from 7 a.m., and re-
fused to work. There was much argument between the
strikers and Scherer that day, the director demanding,
futilely, that they either work or get out of there. At one
point Ward stood up and personally told Scherer the
men were not leaving, and that they were not going to
leave until Scherer agreed to their demand that he dis-
cuss their problems with them as a group. At the end of
the day, about 4 p.m., as the men were about to go
home, Scherer told Ward he had "something" for him,
but did not give him anything. On Monday morning,
when the group returned intending again to continue
their sit-down strike, Scherer handed Ward a formally
written discharge letter dated February 24. It states three
grounds for dismissal: "Activities ... unbecoming a
United Services for Handicapped . .. employee .... "
"refused to cooperate in an investigation, ... " and "re-
fused to transport Timmy Wade on February 23 .... "
The allegation in the complaint that the real reason
why Ward was discharged was his persistence in adher-
ing to the concerted activities of the drivers is supported
by a number of related facts. The first is the timing. If
Ward was as undesirable an employee as the three de-
fense witnesses who spoke about him at the hearing
would now have it, why did management wait until that
significant moment to release him? Shortly after Ward
signed the February 7 employee petition given to
Scherer, Supervisor Owens said to him: ". . . that I
shouldn't get involved with any of the people trying to
form the Union. That I stood a chance of losing my
job." And, of course, there is the clear evidence running
throughout the record of pervasive opposition by the
managers to the entire program of concerted action car-
ried on by the employees.
As to the affirmative contention that the reason was
just cause, the total picture presented is unconvincing.
Three witnesses talked about this question-Holeman,
Richard Miller, the company administrator, and Scherer.
Among the faults in the employee which they listed, and
one they stressed most as the immediately provoking
cause, was a disagreement Ward had had with the dis-
patcher about a boy named Wade, whom Ward used to
pick up regularly. Approximately 3 or 4 weeks before
February 24, the boy's mother asked that I day a week,
Wednesday, according to Miller's testimony, he not be
picked up, she would look after him herself that day
only each week. The established system in the depart-
ment is that when there is a change in instructions of
each driver as to what persons he is to pick up and
where, he will be given a written slip-a cancellation
note for a person who is not to be picked up tomorrow,
or a resume note for a passenger to be picked up again.
Holeman thought that in this case-the boy to be by-
passed the same day each week-no written notice was
necessary. But Ward insisted he be given the written re-
minder every time the change in his routine was to
occur, because he feared he might forget and make a
mistake. He persisted in that view, but testified, at the
close of the hearing, he never actually refused to pick up
the boy. Holeman, the dispatcher, said he did refuse-
during the last week before the strike. For purposes of
evaluating the credibility question, why was Ward dis-
charged?-I will assume he failed to pick the boy up that
week.
The Respondent offered into evidence a written repri-
mand notice from Ward's personnel file, written by Ho-
leman and dated February 23. She wrote this that day-
Thursday-after Ward had returned from his run during
which he had not picked up the boy because he had not
been given a resume slip. The reprimand criticizes him
for doing so, and closes with the phrase: "You are
hereby notified that your continuous refusal to comply
with route changes or direct orders from a Supervisor
will result in disciplinary measures up to and including
dismissal action." In the face of this document, made
before the start of the strike the next morning, Adminis-
trator Miller, after listing Ward's derelictions in great
number, said the driver's failure to pick up the Wade boy
on Thursday "was the final blow," which precipitated
the discharge. Scherer phrased it differently but said the
same thing, ". . . what capped this termination was the
fact that Mr. Ward had failed to resume by verbal com-
mand, Timmy Wade."
On Thursday afternoon Ward's dereliction merited no
more than a reprimand. On Friday evening-or was it
during the weekend that Scherer's discharge letter was
written?-the same offense becomes cause for dismissal.
The only thing that happened between the two moments
was that Ward took part in the strike. A causal relation-
ship between the strike and the dismissal is virtually
compelled. There is more. The Respondent offered a
third document to prove its affirmative defense, a termi-
nation notice written by Scherer and dated February 24,
UNITED SERVICES FOR THE HANDICAPP'I) 8 3 3
and, apparently. simply placed into the employee's file,
for Ward testified crediblv he had never seen it before.
This one says nothing at all about the Wade boy inci-
dent. the so-called final blow. It speaks only of "past
record of activities," of "unauthorized use of USH
agency van," and of failure to "uphold the image of
United Services for Handicapped." What became, in this
formal termination document, of the incident that ac-
cording to the man who wrote it-"capped the termina-
tion?"
The more the supervisors belabored Ward's terrible
record, the less persuasive their story became. If, as
Miller said, he was "thoroughly uncooperative," had
"bad attitude" throughout his employment, committed
all the offenses detailed at the hearing, why was he not
released sooner? The witnesses could not even keep their
facts straight. Scherer's note accused Ward of unauthor-
ized use of a company van, but Miller testified Ward was
never charged with having done that.
On the total record I find Ward was discharged be-
cause of his concerted activities with fellow drivers and
that by dismissing him the Respondent violated Section
8(a)(3) of the Act. I also find that by threatening him
with discharge 2 weeks earlier for "trying to form a
union," Owens, the supervisor, committed an unfair
labor practice chargeable to the Respondent, in violation
of Section 8(a)(l).
2. The discharge of Mary Gattis
The only question to be decided with respect to this
employee is whether, at the time of her termination, she
was a supervisor within the meaning of the Act. as the
Respondent contends. That the reason \shy it dismissed
her was because she acted in concert with the other em-
ployees in striking, and because she chose to be repre-
sented by the Union is proved directly by the termin;a-
tion notice given her on March I. If she was not a super-
\isor it follows of necessity that her dismissal was a vio-
lationi of Section 8(a)(1) and (3) as alleged. For the ra-
sons set out belowx, I find that Gattis A'as not a slupervi-
sor and, as to her, the complaint is correct
It may well be, however, that, even if she was a super-
visor. her dismissal was unlawful nevertheless, because
there is evidence management used her dismissal as a
technique to further restrain and coerce the others in
their exercise of statutory rights. This would be Bowles'
testimony, set out above, of Owens telling him "Mary
Gaittis lost her job and . . I could lose my job, and he
didn't want to see me lose my job." But it is not
necessary to reach that question here.
Gattis worked as a driver from May 1977 until about
mid-February 1978. She was never criticized for her
work but she did receive more speeding tickets than was
proper. She ras made a dispatcher a week or two before
the February 24 strike. In the new assignment she was
charged with keeping the drivers advised of continuing
changes in their assignments during the day, by radio
and in person. She made changes in their routes as calls
came into the office from the "clients." She had done
this kind of work in the past, even while driving a van;
she estimated that she had spent about 20 percent of her
time in such dispatching work even before February
In her new position Gattis was hourly paid and contin-
ued to punch the timeclock, as did all the rank-and-filers.
The supervisors, at least most of them, were salaried. If
on the phone during the day Gattis received any com-
plaints about the work performance of the drivers. she
simply passed them on to Supervisor Holeman. As a
driver Gattis was paid $2.78 per hour; before a certain
day after her discharge no one ever told her she was
going to receive any kind of a raise. The hourly pay of
the drivers as a class ranged from $2.68 to $3. In con-
trast, Owens, the conceded supervisor who also did dis-
patching, was paid $4.34 per hour, as was also Tom
Walker, the maintenance supervisor. Holeman received
$5.64 per hour.
There is no evidence, nor indeed any claim. showing
that from the day of her so-called promotion to the day
of discharge, Gattis in fact exercised any of the normal
indicia of supervisory status. The Respondent seeks to
avoid the adverse finding that must flow from these facts
by contending Gattis was in a probationary period, that
there was an intent to have her exercise more authority
in the future. Such statements will not do to excuse what
is otherwise so clearly an illegal discharge. Not even the
title "supervisor" was ever used in connection with this
lady at the time of the events. An entry in her personnel
file says only she was made a "dispatcher," and that the
man who made the decision suggested she be paid $3 10
an hour. After her discharge, Gattis was paid for what
time she had worked up to the start of the strike. The
check swas in her usual amount, calculated at her old
rate. It was not until after she received this check that
she was given another, a supplemental one. to bring her
pay for that period up to 3. I() per hour. And even later,
in June, when Miller, the administrator, filled out a refer-
ence for her from a company planning to hire Ciattis, he
stated her "position held"'' as "dispatcher and drixer."
(athis testified no one cever told her she was to exercise
any IIunusual authority as a dispatcher and Miller latelr ad-
milltted he never discussed any new responsibilities .s ith
her. In light of the facts such as these, a printedI job (de-
scription. dated a ear earlier, which Gattis ne'ver saw;
and which was neer sho wn her, pros es nothing to the
contrary.
I find that Gattis w.as never a supervisor in the emnploy
of this company. And I also conclude that b discharg-
ing her the Respondent oiolated Section 8(a)(1) aid (3)
of the Act.
I). Rlitul[ 1i, Reilnltwt' Rrinl'g Sittricr
It will he recalled that earl o the morning of lIucs-
day, February 28. the strikers gathered again at the
Union's office. It \, as then -aboutl 1 am . accordinig to
sonic of thel the Unio, n reci cd tile Re-
spondent's firm response that it Would refuse to accord
recognitionl. Then and there there decidel to ieturl to
vwork unconlditionalls. [Thex arried at the place of husi-
ness between I) anid 10(:30) a i. Informed that all were
reaidy to start driving irnmecdiatcl , Scherer told them
they could lot butl should return the next morning.
There is no question. on this record, but that the Re-
834 I)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD
spondent knew at that moment that all the drivers were
ready and willing to work without condition.
When the entire group returned again the next day,
four of the men were given discharge slips reading:
"Your bus driver position has been filled. There is no
further need for your services. Your position was filled
prior to your request to return to work."
In a sense, the issue as to these four men is similar to
that raised by Gattis' discharge. If they had not in fact
been replaced by regular employees before that very
hour, or if in law the employer had no right to reject
their offer to return on that asserted ground, the denial
of work must be deemed an unlawful discrimination in
violation of Section 8(a)(3), because the reason for dis-
missal is clear in the dismissal notices-for having par-
ticipated in the union strike.
I will first consider the second question. In their testi-
mony a number of driver witnesses said the reason why
they struck in the first place, on February 24, was be-
cause the managers had "harassed" them too much, be-
cause of the excessive number of unwarranted disciplin-
ary suspensions, because of threats and mistreatment at
the hands of the supervisors, and because of the Compa-
ny's refusal to negotiate the conditions of employment
with them as a group, as distinguished from individual
dealings with employees. A first question is whether,
when the drivers-on the morning of Friday, February
24-started the strike, was it an economic strike or was it
an unfair labor practice strike? The Company had re-
fused to negotiate collectively with them, but it is not
clear whether, sitting in the lounge on Friday, there
were a majority of the employees in an appropriate bar-
gaining unit. More than one witness said there were
about 10 or 12 employees; the record indicates about 24
drivers all tolled. Next, when an employer refuses to rec-
ognize the collective voice of employees-is it necessary
that they have a labor organization as their spokesman
before a violation of Section 8(a)(5) of this statute can be
found, or need he recognize a collective voice-if they
are a majority-at the risk otherwise of committing an
unfair labor practice? The complaint does not allege il-
legal refusal to bargain before February 27, and I will
therefore leave it at that.
There were many suspensions for misconduct on the
job, reprimands i great number, during February. One
employee after another said these were wrong, unwar-
ranted; they even hinted that some of them came as a
result and in reprisal for their redress petition of Febru-
ary 7. But again. the complaint does not allege the Re-
spondent did anything wrong, under the statute, in doing
all that-unprecedented as it may have been. The fact
that some of the employees may not have deserved the
reprimands as disciplinary measures, therefore, cannot be
grounds for calling the mass sit down an unfair labor
practice strike.
But unfair labor practices before February 24 the Re-
spondent did commit. As found above, Owens, Scherer,
and Holeman did, on a number of occasions, threaten to
shut down the entire operation if the employees adhered
to the concept of collective bargaining, that they threat-
ened to discharge employees outright if they did not stop
the collective action, and that they illegally interrogated
them to ferret out the unioneers. When the employees
strike, and their resentment rests upon multiple
grounds-the employer's refusal to concede economic
demands and his coercive threats or other conduct re-
straining the statutory rights of employees-it is difficult,
if not possible, to separate the two and hold the strike to
be purely of an economic nature. I think it correct to
hold, therefore, as the General Counsel contends, that
even if this record showed nothing more than the 8(a)( I)
violations committed by the Respondent before February
24, this strike was, from its inception, in part at least, a
protest against unfair labor practices.
And surely on the second day of the strike, early on
the morning of February 27, the outright discharge of
Ward, an outspoken supporter of the concerted move-
ment, in the presence of all the strikers, undoubtedly af-
fected their thinking. Just as the discharge of one union-
eer will inevitably carry a radiating coercive effect on
his fellow workmen-even if not always so untended-
even so, it will presumptively harden the resolve of strik-
ers to continue their fight to restore him to his rightful
employment. I therefore find that this was at all times an
unfair labor practice strike. Mastro Plastics Corp., and
French-American Reeds Mfg. Co., Inc. v. .L.R.B., 350
U.S. 270 (1956).
With this, when all the strikers made an unconditional
offer to return to work early on the February 28, they
were all entitled to full reinstatement under Board law,
and the Respondent's duty was to dismiss any replace-
ments, if any, who may have been hired before February
27. 1 find that on the morning of February 28, when the
Respondent discharged these four returning strikers, it
violated Section 8(a)(3).
Of the four men then discharged, two were recalled
on March 9, Hollinger and McHenry. Hollinger was re-
stored to his regular full-time job, and has therefore suf-
fered only loss of pay between February 28 and March
9. McHenry was given only part-time work; by this time
several new drivers had been added to the payroll. In
August McHenry, still on part-time, left because he had
to find regular, full-time work. He must be made whole
for all loss of earnings from February 28, minus what-
ever he earned in the interim, be it with this compan or
with any other. And he must be offered complete rein-
statement. The third man, Coleman, was not recalled
until March 28, and then given only 2 hours of work
each day instead of the 8 hours he worked before. He
quit in protest 3 days later. Like McHenry, he must be
made whole on or after February 27. if necessary.
The last man, Terrass, was also recalled to part-time
work at the end of March. In the beginning of July, be-
cause he saw newly hired drivers working full-time, he
complained again to Scherer. Scherer told him that
CETA Regulations, another charitable type organization,
through which part of the funds are received, required
that outsiders be hired. Terrass said he would complain
to the officials of CETA, and he did. He was finally re-
stored to his full-time job 3 days later. As to him, there-
fore, reinstatement is not required, but he too must be
made whole for the wages he lost for not being given a
full 8-hour a day job between February 28 and July 16.
UNITNF1 SR\'ICU'S FO()R 1111'- HtANDICAPPl''l) X15
IV. I II ICi O I III NAIR I ABHO PRAC IICI-S
UPON COMMNINRCI
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section 1. above. have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. TI RN1ME11)Y
Considering the total picture of the case, I do not
think the unfair labor practices committed were of such
a nature as to make it improbable that there could be a
fair election among the employees tomorrow. It is an
area of Board law in which no two cases are alike, and
therefore in which no single prior decision of necessity
requires similar holding in a later one. The question-as
phrased in legal precedent-is whether the Respondent's
coercive acts were so "outrageous and pervasive" as to
preclude rational expectation of a fair election after the
usual remedial, corrective order has been carried out.
See, Gissel, supra. Another way of putting the question
in terms of pertinent employee understanding-is wheth-
er the workmen were given to understand that their em-
ployer would never cease resorting to illegal acts be-
cause of his opposition to their collective or union activi-
ty. A Board election is concerned only with union activi-
ty, and not with other matters that may also involve con-
ditions of employment but that stand apart from rights
with which this statute is concerned.
When the management agents here, led by Scherer,
the director of transportation, told the employees to stop
what they were doing. and even threatened to fire them
for it if they persisted, they were as much talking about
the danger of damage to, or even complete destruction
of, the social, welfare objective being served by the
entire operation all these people-management as well as
rank-and-file-were engaged in. One can understand em-
ployee gripes about the defective conditions of the vans
and the buses, for such matters affect their conditions of
employment. But unlike the usual commercial operation,
here these elements, deliberately publicized in the media,
had engendered a divisive attitude between the beneficia-
ries of work performed and the so-called business itself.
It is one thing for striking employees to invite the public
to boycott a commercial employer's saleable product, but
it is something else again to discourage the contributing
public-taxpayers or charitable "givers"--whose money
sustains the whole enterprise.
Scherer and Owens should not have said the things
they said to the employees, but if the transcript be ap-
praised fairly, it must be said the drixcrs appreciated the
managers were as well concerned with the public ecl-
fare as they were with the statutory concept of oillec-
tive bargaining. The best way to start it is that maInage-
meit had a dual purpose in its reaction-one prohibited
by the statute and one having nothing to do with this
law. And what is no less clear is that the employees un-
derstood this, all of them. For this the evidence lies not
only in their own testimony at the hearing. but also in
the fact the United Services attorney told the Union's
agent the reason for the refusal to bargain was a belief
that the Labor Board could not apply this lasw to this
"business." The message certainly became even clearer
to the employees when their employer adhered to this
view to the point of litigating it in the RC proceeding
And perhaps the best way of stating the test now is:
What are the chances the Respondent will not repeat its
past offense? I think very high, and I think the employ-
ees know it. If in consequence of collective bargaining
these drivers must be paid more money if also. in conse-
quence, more money must be spent to maintain the buses
in better condition, it will be no skint off the backs of the
supervisors. It is not their nioney, and it is not a loss of
profits to them.
I am satisfied that after Ward and Gattis are returned
to work and made whole, and after the 60()-day posting
period, these employees will vote in any Board election
freely and without coercive restraint.
CONCI.USIONS oF LAw
I. By discharging Kevin Ward, Mary Gattis, Joseph
McHelry. Adrian Coleman, Elvis Hollinger, and Rich-
ard Terrass for engaging in union activities the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
2. By the foregoing conduct. by threatening to discon-
tinue its operations in retaliation for union acti ,itics, by
threatening to discharge employees in retaliation for
their union activities, and by interrogating employees
concerning their union activities, the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommened Order omitted from publication.]