Valley Transit Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1963

142 N.L.R.B. 658 (N.L.R.B. 1963)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as authorized by
Section 8 ( a) (3) of the Act.
WE WILL request Montgomery Ward & Co., Incorporated , to offer immediate
and full reinstatement to Fred W. Wallace to his former or substantially equiv-
alent position.
WE WILL make Fred W. Wallace whole for any loss of pay he may have
suffered as a result of our unlawful request that he be discharged.
TRUCK DRIVERS, OIL DRIVERS , FILLING STATION
AND PLATFORM WORKERS' UNION, LOCAL 705,
AN AFFILIATE OF THE INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting , and must
not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 176 West
Adams Street, Chicago , Illinois, 60603, Telephone No. Central 6-9660, if they have
any question concerning this notice or compliance with its provisions.
Valley Transit Company , Inc. and Brotherhood of Railroad
Trainmen , AFL-CIO . Case No. 23-CA-1486. May 16,196.9
DECISION AND ORDER
On January 21, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the ex-
ceptions and brief and the entire record 2 in the case, and hereby
adopts the findings, conclusions , and recommendations , insofar as
they are consistent with this Decision and Order 3
1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Leedom , Fanning, and Brown].
20n March 25, 1963, after the close of the hearing herein, the Board received from
Respondent an affidavit of R G. Olivo ; on April 12 , 1963, another affidavit was received
from the General Counsel in which Olivo disavowed the prior affidavit. The Board rejects
both affidavits as neither constitutes probative evidence.
8 We do not condone or adopt certain gratuitous comments contained in the Intermediate
Report. Nevertheless , we find that such remarks do not support Respondent ' s allegation
of bias and prejudice on the part of the Trial Examiner . We have made an independent
review and analysis of the record herein and are satisfied that the findings and conclu-
sions of the Trial Examiner which we have adopted, including his credibility resolutions,
are fully supported by the evidence Accordingly , we deny Respondent 's request to argue
this matter orally before the Board.
142 NLRB No. 74.
VALLEY TRANSIT COMPANY, INC. 659
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8(a) (1) of the Act by (a) engaging in unlawful interrogation
of its employees, and (b) threatening employee Benavides with
economic reprisal if he continued his adherence to the Union.
(a) Our finding of unlawful interrogation is based upon Ferrell's
conduct in obtaining signatures to the March 21 petition for the pur-
pose of ascertaining which employees voted for or against the Union.
Respondent contends that Ferrell is not a supervisor. We agree
with the Trial Examiner for the reasons stated below that Ferrell is
a supervisor.
Ferrell, the assistant dispatcher at the Pharr terminal, makes
driver assignments, approves the transfer of drivers from one run
to another, and grants drivers' requests for time off. He also issues
demerits and suspensions to employees who violate company rules,
such as being late for work, failing to file necessary reports, and fail-
ing to make a schedule run. Under the Respondent's demerit system,
drivers are credited each month with four "merits," each valued at $1.
For each rule infraction, a driver receives from one to four demerits
and for each demerit the driver loses $1. Suspensions for rule viola-
tions are generally for 1- to 3-day periods, whereby the driver loses
pay for such days. We reject Respondent's contention that Ferrell
does not exercise independent judgment in assessing demerits or sus-
pensions, as the very nature of the system affects the earnings of the
drivers and necessarily implies discretion 4 Contrary to the Respond-
ent's assertion that Ferrell only "takes over" when Harvey, his im-
mediate supervisor, is on leave, the record shows that during the 6-
month period between June and November 1961, Ferrell issued de-
merits and suspensions on 143 occasions, whereas Harvey did so only
on 7 occasions. Moreover, Ferrell's initials were listed on the monthly
demerit reports as a supervisor who was authorized to assess de-
merits. Under all the circumstances herein, we find that Ferrell is a
supervisor 5 within the meaning of the Act as he responsibly directs
employees and effectively recommends their disciplines According-
ly, Respondent is clearly responsible for his conduct relating to the
circulation of the petition.
(b) Benavides is a driver employed at the Harlingen terminal,
where Porter is the dispatcher. Benavides testified that "four or five
or six" days prior to the election he had a conversation with Porter.
4 Such discretion exists both in the determination of whether an infraction has occurred,
and in determining the number of demerits to be assessed for any specific infraction.
5 The mere fact that Ferrell voted in the March 1962 election without challenge does
not affect his actual status as a supervisor.
O Pacific Motor Trucking Company, 132 NLRB 950 , 952, 953.
712-548-64-vol. 142-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Benavides, "He told me that I was aged and that I
should protect my run. That I shouldn't mix up with anybody and
that my run would be mine always." At an earlier date, Respondent's
officials, Raimond and Foiles, interrogated Benavides concerning his
affiliation with the Union and obtained an admisison from Benavides
that he had joined. In view of Respondent's knowledge of Benavides'
adherence to the Union and its admitted antiunion compaign prior to
the election, we find that Porter's statement clearly implied a threat
of reprisal if Benavides continued his adherence to the Union. Like
the Trial Examiner, we do not credit Porter's denial of the threat.
Nor do we agree with Respondent's claim that Benavides' testimony
concerning the date of his conversation with Porter lacks sufficient
specificity relative to Section 10 (b) of the Act.
2. The Trial Examiner found that Farris' threat of reprisal directed
to employee Reyna and Respondent's application of its demerit and
suspension system were violative of the Act. We do not agree.
Neither the complaint nor the bill of particulars alleges any act by
Farris as an independent violation of Section 8(a) (1) of the Act.
The pleadings allege that Respondent violated Section 8(a) (1) by
discriminatorily applying its demerit and suspension system to cer-
tain specified individuals. The Trial Examiner, on the other hand,
concluded that Respondent violated Section 8(a) (3) by discriminat-
ing generally against all employees who had voted for the Union.
Additionally, the Trial Examiner's findings with respect to these
matters are contrary to his repeated assertions on the record to the
effect that he would make no findings except on matters specifically
alleged; and that he would not review the nature of demerits which
were the subject of "a year's discussion in grievance procedure be-
tween the Union and the Company." In view of the foregoing, we
reject the above findings with respect to Farris and the demerit-
suspension system as these findings are clearly beyond the scope of
the complaint and bill of particulars. Moreover, except as discussed
hereinafter, we shall make no findings with respect to the application
of the demerit-suspension system against named individual employees,
as the matter was not otherwise sufficiently litigated to permit such
findings to be made.
3. We are in agreement with the Trial Examiner's findings that
Respondent discharged employees Casanova, Villarreal, and Solomon
in violation of Section 8(a) (3) of the Act? The record shows that
7 The Trial Examiner found that Respondent did not violate Section 8(a) (3) with re-
spect to employees Benavides and A. F Garza . As no exceptions have been filed as to
them, we adopt these findings pro forma.
The Respondent contends that the Board Is precluded from considering the discharges
of Casanova, Villarreal , and Solomon for the reason that these matters were disposed of
under the grievance procedure of Its contract with the Union. As the contract 's grievance
procedure does not provide for impartial arbitration, but reposes In the Respondent's
VALLEY TRANSIT COMPANY, INC. 661
Respondent had knowledge that these employees were union adherents.
All three wore union buttons on their drivers' caps and none of them
signed the March 21 petition which informed the Respondent as to
which employees voted for or against the Union in the election. In
addition, during the early days of the Union's organizational cam-
paign, both Farris and Foiles accused Casanova of having signed a
union card ; and Farris told Sanchez, who was then assistant dis-
patcher, that he knew of the prounion sentiments of Villarreal and
Solomon.
Casanova was discharged from his job as extra-board driver at the
Harlingen terminal on June 25, 1962. The General Counsel, while
conceding that Respondent was economically justified in discharging
one of the five drivers in the extra category, nevertheless contends
that Casanova's selection was discriminatorily motivated. Casanova
had more seniority on the job than the other drivers. Additionally,
the names of the other four drivers appeared on the March petition
circulated by Ferrell, thus professing that they voted against the
Union. Respondent contends that its contract with the Union pro-
vided that work performance, rather than seniority, controlled layoff
situations, and that Casanova was the weakest driver.' The record
does not support the Respondent's position. The contract is silent
with respect to the effect of seniority concerning layoffs and, in any
event, the evidence does not establish that Casanova's driving record
was less desirable than some of the other drivers. In June 1962, no
demerits were given Casanova, whereas one each was given to Fonseca
and Luis Leal, two of the other extra drivers; in May 1962, three de-
merits are shown against Casanova, compared to four demerits and a
7-day suspension against Fonseca ; and for a period of 6 months, begin-
ning January 1962, Casanova and Fonseca each received the same
number of demerits.
We, therefore, find that although the Respondent had economic
reasons to release one of the five extra-board drivers, Casanova was
discriminatorily selected for layoff in violation of Section 8(a) (3)
of the Act. The record is clear that under the Respondent's asserted
layoff policy, seniority was a factor to be considered where work per-
formance was equal. Absent any discriminatory motive, the objec-
tive factors point to the selection for layoff one of the other four
extra-board drivers who were not members of the Union, who had
less seniority than Casanova, and whose work performance was no
better. In view of Respondent's admitted opposition to union organ-
general manager the discretion to make all final decisions with respect to grievances, we
find no merit in the Respondent' s contention . Cf. Spielberg Manufacturing Company,
112 NLRB 1080.
8 Contrary to Respondent 's contention , as late as September 25, 1962, the Union in-
sisted that Casanova's discharge was discriminatorily motivated
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ization and its interference by way of the Ferrell petition after the
election, we are persuaded that the occasion for an economic layoff
was used as a device to eliminate a known union adherent.9
Villarreal was discharged on August 3, 1962, for failing to make
a weekend driving assignment. The Respondent contends that Vil-
larreal's conduct was deliberate. The General Counsel argues other-
wise, asserting that Villarreal was discriminatorily discharged as he
was not told to work on that assignment.
Following a suggestion by Villarreal, Dispatcher Porter arranged
for an extra run on weekends from Brownsville, Texas, to Harlingen,
from which point passengers would be transferred to another bus
operated by another driver for the trip from Harlingen to Raymond-
ville, Texas. Villarreal made the Brownsville-Harlingen trip and
R. Garza, the Harlingen-Raymondville run, on the first Saturday and
Sunday runs of July 21 and 22, 1962. On the following Saturday,
Garza waited at Harlingen to pick up passengers for his trip to
Raymondville, but the bus from Brownsville did not arrive. Garza
then proceeded to his destination without any transfer passengers
from Brownsville. At the Harlingen terminal the next day, Porter
asked Villarreal why he had not made the Brownsville trip the night
before. Villarreal replied that he had not been instructed to do so.
Porter thereupon told Villarreal to make the trip that Sunday night
and Villarreal did, making the connection with Garza at the Harlin-
gen transfer point. On August 3 of the same week, Villarreal was
discharged for failing to make the second Saturday trip.
Porter testified that on Sunday night, July 22, at the Harlingen
transfer point, he told both Villarreal and Garza to make the new
run every Saturday and Sunday "until you are told different." Vil-
larreal, as stated above, and Garza disputed Porter's testimony.
Garza stated that when Porter told him about making the run,
Villarreal was not present. The Trial Examiner discredited Porter's
version and so do we. Accordingly, we reject the Respondent's as-
serted defense that Villarreal was discharged for cause in that he
deliberately missed a run. Moreover, the record demonstrates that
other employees who had failed on previous occasions to make sched-
uled runs were disciplined by an assessment of four demerits and a 3-
day suspension. Such disparate treatment against Villarreal convinces
us that Respondent seized upon the confusion in work assignments to
rid itself of another union adherent. Under these circumstances, we
find that Villarreal was discharged in violation of Section 8(a) (3)
of the Act.
e Casanova was reemployed by Respondent on November 12, 1962, at the Pharr terminal.
As recommended by the Trial Examiner and for the reasons stated by him, Casanova is
entitled to reinstatement to the job he held at Harlingen at the time of his discharge.
VALLEY TRANSIT COMPANY, INC. 663
Solomon was discharged, according to the Respondent, for lying to
Superintendent Slack at a time when the latter was substituting for
Dispatcher Porter. Solomon's testimony reveals that on August 4,.
1962, about 1:45 p.m., he returned to the Harlingen terminal from a,
chartered run and informed Slack that he was through with the bus.
Solomon then proceeded to the drivers' room to sign out and prepare
his schedule for the next day. Slack entered and remarked, as he
walked out of the door, that he was looking for an extra driver. Slack
did not talk directly to Solomon. Slack testified that while he was
searching for an extra driver he was told by Solomon that he was not
finished with the charter bus; that he then asked Solomon what time
he had to leave and Solomon replied 3 p.m.; and that he learned later
in the day that Solomon had signed out at 1:45 p.m.
For the reasons stated by the Trial Examiner, who had the benefit
of observing the witnesses, we credit Solomon's testimony that he did
not lie to Slack.1° At most, as in the case of Villarreal, faulty com-
munication led to confusion and misunderstanding. We find, there-
fore, that Respondent used this incident as a pretext to discharge an-
other union adherent, in violation of Section 8(a) (3) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Valley Transit
Company, Inc., Harlingen, Texas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist:
(a) Interrogating its employees concerning their union sympathies
and activities in a manner violative of Section 8(a) (1) of the Act,
and threatening them with economic reprisal because of such sym-
pathy or activity.
(b) Discouraging membership in Brotherhood of Railroad Train-
men, AFL-CIO, or in any other labor organization, by discharging
or by discriminating in any other manner against employees with re-
spect to their hire, tenure, or any term or condition of employment,
because of their activity on behalf of the Union or any other labor
organization.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist the Union, or any other labor organization, to
10 The record shows that Porter told Solomon , before he left on the charter trip, to
"report back to me because we have got a lot of trippers and a lot of extra work and I am
sure you will get some more work." Solomon did try to locate Porter upon his return
from the charter trip and even asked Slack about Porter 's whereabouts In any event,
according to Slack's own testimony , he did not request Solomon to work as an extra driver.
Moreover , it appears that extra work was performed on a voluntary basis and therefore
there was no necessity for Solomon to engage in chicanery to avoid extra work.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer employees J. R. Casanova, J. T. Villarreal, and H. M.
Solomon, Jr., immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of
pay they may have suffered by reason of the discrimination against
them, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy." 11
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its terminals in Harlingen and Pharr, Texas, copies of
the attached notice marked "Appendix." 12 Copies of said notice, to
be furnished by the Regional Director for the Twenty-third Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
n For the reasons set forth in the dissent in Isis Plumbing & Heating Co , 138 NLRB
716, Member Leedom would not grant interest on backpay.
22 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Brotherhood of Rail-
road Trainmen, AFL-CIO, or any other labor organization, by
discharging or by discriminating in any other manner against
VALLEY TRANSIT COMPANY, INC. 665
employees with respect to their hire, tenure, or any term or con-
dition of employment, because of their activity on behalf of the
Union or any other labor organization.
WE WILL NOT interrogate employees concerning their union
sympathies and activities in a manner violative of Section 8 (a) (1)
of the Act, and threaten them with economic reprisal because of
such sympathy or activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or
mutual aid or protection, or to refrain from any or all such
activities.
WE WILL offer employees J. R. Casanova, J. T. Villarreal, and
H. M. Solomon, Jr., immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and will make
them whole for any loss of pay suffered as a result of our dis-
crimination against them.
All our employees are free to become, to remain, or refrain from
becoming or remaining members of the above-named or any other
labor organization.
VALLEY TRANSIT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees if pre-
sently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas, 77002, Telephone No. Capitol 8-0611, Extension 296, if they
have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The abovenamed labor organization filed an original charge on September 6, 1962,
and an amended charge on October 26, 1962. Also on the latter date the General
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel of the National Labor Relations Board issued and served his complaint,
alleging that the Respondent had engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. On
November 1, 1962, the Respondent filed its answer, denying all allegations of the
complaint, even the allegation that it existed as a corporation or was engaged in
bus transportation Pursuant to notice, a hearing was held in Harlingen, Texas,
on December 4 and 5, 1962, before the Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from General Counsel and the Respondent.
Disposition of the Respondent's motion to dismiss, upon which ruling was reserved
at the hearing, is made by the following findings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Although denying such facts in its answer, at the hearing the Respondent con-
ceded, and it is found, that:
(1) Valley Transit Company, Inc., is a Texas corporation, maintaining its office
and principal terminal at Harlingen, Texas, where it is engaged in bus transportation.
(2) During the year preceding issuance of the complaint it received from its
bus operations gross revenue of more than $250,000.
(3) During the same period it rented from the Goodyear Tire Company, at a
cost of more than $12,000, tires manufactured at Akron, Ohio, and furnished for
its use in its Texas operations.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING PARTY
Brotherhood of Railroad Trainmen , AFL-CIO, is a labor organization admitting
to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Setting and issues
So far as the record reveals , in the several years of the Respondent 's operations
it was not until the spring of 1962 that its bus drivers formally selected a labor
organization as their bargaining representative.
Organization by the Brotherhood of the drivers in the Respondent's system, which
includes a Harlingen and Pharr division, began in early 1962. The evidence is clear
that from the start of such efforts management representatives moved to discourage
the drivers from exercising the rights of such representation accorded them by
Section 7 of the Act. Indeed, early in the hearing, counsel for the Respondent
candidly conceded:
Now as far as the opposition to organizational efforts of the employees, we
will agree that the Company, during the Union campaign, made every legal
effort that it could to induce its employees to not select a Union to represent
them. . . .
Despite such openly admitted opposition organization proceeded to the point of
an election which was conducted by the Board on March 15, 1962. The Union won,
and was duly certified.
Less than a week after the election Wayne Ferrell, assistant dispatcher at the
Pharr terminal and listed as a supervisor on company records in evidence , ' circulated
a document among the employees and obtained some 18 signatures . The text
follows:
We, the undersigned, do solemnly state and will do so under oath, that we
voted in the election held by the N.L.R.B. on March 15, 1962 at Pharr and
Harlingen, Texas, to the effect that we did not want to be represented by
Brotherhood of Railroad Trainmen (AFL-CIO) or belong to or participate in
any union activity.
1 Ferrell's supervisory status will be further discussed below.
VALLEY TRANSIT COMPANY, INC. 667
This document with its signatures, which so overtly flouted the statute's policy of
secret elections, was addressed to a vice president of the Brotherhood, with a copy
being sent to and received by President Farris of the Respondent .2
It is undisputed that in soliciting at least one employee to sign the document
Ferrell agreed that in circulating it he was "trying to find out who is a Union man
or who voted for the Union."
In this atmosphere of hostility toward the Union other events occurred which,
in addition to this inquisition concerning the election, General Counsel claims were
violative of the Act. Such events include: (1) reduction in the number of work-
ing hours; (2) application of a demerit and suspension system; (3) the discharge of
three employees, and (4) certain remarks to drivers by management representatives.
B. Interference, restraint, and coercion
Despite President Farris' bland contention, as a witness, that Wayne Ferrell is
a mere hourly paid bus operator, more credible evidence sustains General Counsel's
claim that this individual actually is a supervisor within the meaning of the Act.
That Ferrell may occasionally operate a bus does not detract from his supervisory
capacity. According to his own testimony Dispatcher James Porter, an admitted
management representative, sometimes "pulls trippers" when drivers are short.
As assistant dispatcher at the Pharr terminal Ferrell assigns drivers to their runs
and issues demerits for rule violations, action which directly affects drivers' em-
ployment and income. In the record are monthly demerit and suspension sum-
maries from January 1961 through November 1962, which were posted at both
terminal bulletin boards. These sheets show the date of the claimed rule viola-
tion, the name of the driver, the number of demerits or of days suspension, the
reason, and the initials of the supervisor issuing such demerits. Even a cursory
glance through these records indicates that a large portion of such demerits were
issued by "WF," the initials of Wayne Ferrell. For example, in March 1962, the
month of the Board election and during which Ferrell was circulating the above-
described letter, the company-posted bulletin shows that Ferrell issued 54 of the
approximate total of 95 demerits for that one month.
The Trial Examiner concludes and finds that the Respondent must be held re-
sponsible for Ferrell's conduct as a supervisor. And his action in circulating and
obtaining signatures upon the March 21 letter, for the avowed purpose of ascertain-
ing who had voted for the Union, clearly violated the rights of employees guaranteed
by Section 7 of the Act.
Competent, credible, and substantial evidence also establishes the following in-
cidents of interference, restraint, and coercion:
(1) Sometime before the election management officials. Raimond and Foiles,3
called driver Benavidas into the office, where Foiles demanded to know why the
employee had previously told him he had not signed "for the Union." After Foiles
told him he had a list of those who had signed, Benavidas admitted that he had
signed. Raimond then demanded to know who had gotten him to sign. The
driver declined to reveal this information, pleading that he was getting old and
"the boys might get angry with me." Raimond slammed the door as Benavidas
went out? On or about March 10, 1962, just before the election, Dispatcher
Porter warned Benavidas that he was getting "aged" and should "protect" his run,
and "shouldn't mix up with anybody" and his run would be his "always." 5
2 As a witness Farris said he referred the matter to counsel. Counsel for the Respondent,
a former Board attorney, wisely advised Farris to ignore it.
a Foiles is a general manager. The Trial Examiner is unable to determine from the
record precisely what office Raimond held at material periods There is in evidence, how-
ever, a letter dated as late as August 3, 1962, bearing the signature of R. G. Farris over
the title "President," the letterhead itself bearing the word • "Vance D. Raimond,
President." And the testimony of Dispatcher Porter at Harlingen shows that also in
August he was under Raimond, whatever the latter's title may have been. (Harlingen
borders on Mexico, where generals abound.)
* Benavidas' testimony about this interview is uncontradicted. Because the employee,
on cross-examination, was uncertain of its date, and admitted that it might have occurred
as early as January, the Trial Examiner cannot find it to have been an unfair labor prac-
tice within the 10(b) period, which began on or about March 6, 1962. As a historical
fact, however, it throws light upon the later incident above described.
6 Porter only denied that he "promised" Benavidas "a job if be would vote against the
Union " Accepting this as a denial of the language attributed to him by the driver,
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Early in April 1962 , driver Reyna was called into Farris ' office regarding
demerits given him by Ferrell. Farris, who admitted receiving the letter which
Reyna had refused to sign for Ferrell, opened the interview by asking: "Why did
you go Union? I always counted on your vote for the Company. But you still
have a chance. You can always change your mind. And probably we can ar-
range, if you want to change your mind, but if you don't want to change your
decision it is up to you, but I still say I am not going to have nobody from the
North come over here and tell me how to run this Company. Over here we do
as we please." 6
Farris' remarks constitute a plainly implied threat of reprisal if the employee did
not "change" his mind and withdraw from the Union.7
C. Demerit and suspension discrimination
The complaint alleges and the answer denies that immediately after the Union
won the election on March 15 management began applying , discriminatorily and be-
cause of union membership , its demerit and suspension system . In response to an
order calling for particulars , General Counsel listed nine individuals as having been
thus discriminated against.
In quick summary, long before the Union began organizing here the Company
had established and was following a "demerit" system , whereby at the beginning
of each month all drivers who had passed a probationary period are credited with
four merits, each valued at $1 . And for each demerit given for rule infraction dur-
ing that month he loses $1.
Under the contract which the Union signed with the Respondent on June 12, 1962,
all of the company rules put into effect in 1956 were " incorporated ." By the same
contract , moreover, the Union surrendered to management the exclusive right to
"lay off employees because of lack of work , or other legitimate reasons" and the
exclusive right to make work rules, schedule all work shifts, transfer employees and
to determine "the ability of employees to perform their work ." The Union also
surrendered the right to negotiate concerning any "bargainable matters" which might
arise during the term of the contract . The Union also surrendered , by this contract,
the right to have "considered or be subject to grievance procedure" or adjustment
any grievance "the basis for which occurred prior to" June 12-although it had been
the certified bargaining agent since the election in mid-March Finally , the Union
accorded to the Company's general manager the exclusive right of deciding all
grievances , on rehearing, with his decision becoming "final and binding" upon the
Union.8
Although it appears that the Union yielded to management all grievance rights
from the time it became the legal representative of all employees in March until the
contract was executed , there seems to be no good reason why the Federal law
should not be applicable during that period. In any event, the Trial Examiner will
consider , as in issue, the question of demerit and suspension application from Febru-
ary through May 1962.9
nevertheless in the light of the previous interrogation by both Ralmond and Foiles the
Trial Examiner 'cannot credit the denial as true
O Farris admitted calling Reyna into the office . He said they had it "very pleasant dis-
cussion" regarding the demerits and declared , at first, "Sir , I remember no conversation
about Unions at all " Not until pressed by his ,own counsel • "Did you have any conversa-
tion with him at that time with reference to the Union"' did Farris answer, "No, sir."
Apparently not fully satisfied with this direct answer, his counsel pursued the matter
"You say you don't recall, or you say that none occurredV" Farris then said, "I will say
I don't recall I am sure that none occurred , but I don't recall " The Trial Examiner
can find no kernel of truth in a denial that thus hops hither and yon like popcorn on the
hot griddle of his own counsel's examination.
7 The Trial Examiner does not find violative of the At certain remarks attributed to
Dispatcher Harvey by the same employee, concerning possible reprisals in the event of a
strike It is undisputed that the subject arose when the driver asked what would happen
If a strike came about . And the driver himself testified that Harvey immediately retracted
the word "fired" and said he meant "replaced."
8 Lest it be forgotten , this contract was entered into by a labor organization : Brother-
hood of Railroad Trainmen.
B Thus avoiding the issue as to whether, under Board dictum set out in May Department
Stores Company ( 59 NLRB 976 , at 981-982 ), to the effect that employees in a bargaining
unit are bound during the contract period by surrender of rights made by their bargaining
representative , there is merit in the Respondent 's contention that by terms of this contract
VALLEY TRANSIT COMPANY, INC. 669
No attempt will be made, however, to appraise the merit of each specific demerit
and suspension issued to each employee during this period. Neither the quantity
nor quality of the evidence in the record would permit such determination. But
company records in evidence, when considered together with other unfair labor
practices found, lead inescapably to the reasonable inference and conclusion that
General Counsel's general allegation of discrimination is sustained.
The following summary of such records seems self-revealing. For the months
indicated it lists in separate columns the demerits and suspensions issued to 17
union drivers 10 as compared with the 18 drivers who signed Ferrell's letter stating
that they had voted against the Union 11
Month Issued
To union members To nonunion drivers
Suspensions Demerits Suspensions Demerits
October 1961----------------------------___-- None 15 None 16
November ------------------------------------- None 24 21
December 29 None 21
January 1962---------------- --------- None 31 21
February----__ ------------ None 16 None 32
March 65 None 30
April------------------------------ 4 64 None 36
May----------------------------------------- 3 56 28
June------------------------------------------- 2 53 None 12
July------------------------------------------- 26 None 14
August--------------------- ------------------ None 1s None 13
September------------------------------------- None 13 2 32
October---------------------------------------- None 18 None 30
The Respondent offered no reasonable explanation for the sudden quadrupling
of demerits and suspensions issued against union adherents in March, April, and May,
1962, while the number issued against those who had signed Ferrell's letter remained
substantially stable.
As noted above, the record warrants no detailed findings that the specific demerits
and suspensions issued against union adherents were without basis of some actual
rule infraction, except in a minor incident or two, or that nonunion drivers actually
deserved more demerits and suspensions than they received. Even if such evidence
were now available it is doubtful if one life would be sufficient to have permitted
full investigation of each and every one of the many scores of such demerits and
suspensions. (The Trial Examiner has reason to be somewhat sensitive on the
subject. He learned more than a trifle about the ways of public transportation
systems and the issuance of "briefs" for rule infractions many years ago and dur-
ing the weeks of hearing in the Baltimore Transit Company case, 47 NLRB 109.
There, when employees attempted organization, the oldest and most reliable em-
ployees in service were selected to lead the campaign. One after another were
followed by "spotters" who, within a few days, recorded numerous "briefs"-infrac-
tions of one or more of the 200 or more company rules. The Company claimed
that it then discharged the drivers for such "briefs." It was notable that one old-
timer, observing his fellow drivers or motormen falling by the wayside, decided to
observe carefully each rule and regulation. He chose the morning rush hour. As
a result of his meticulosity, downtown Baltimore was tied in a knot for a consider-
able period.)
The foregoing summary, however, in the opinion of the Trial Examiner, fully
supports the conclusion, here made, that immediately after management learned the
identity of union adherents, through Ferrell's letter of March 21, and in resentment
against employees because they had voted for the Union, management applied its
demerit and suspension system discriminatorily and unlawfully.
its general manager's decision on grievances shall be final and binding-even upon the
Board.
"Also included in the union column are the demerits issued to Reyna, who had refused
to sign the Ferrell letter , as found heretofore.
11 The Trial Examiner is not a CPA. Any errors of compilation are inadvertent.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The discharges
The complaint alleges and the answer denies that the following three drivers
were unlawfully discharged on the dates set opposite their names:
J. R. Casanova ------------------------------------------ June 25, 1962
J. T. Villarreal ----------------------------------------- August 2, 1962
Hipolito Solomon, Jr.____________________________________August 6, 1962
Casanova: For nearly 2 years before his discharge on June 25 Casanova had been
an "extra-board" driver. It is undisputed that in February he was accused by Farris
and Foiles of having signed a union card. He denied the accusation. Immediately
after the election he refused to sign the letter circulated by Ferrell, thus in effect in-
forming management that he had voted for the Union. Moreover, early in June he
began wearing a union button openly.
In point of service Casanova, on June 25, had more seniority than any one of the
other four extra-board drivers, a fact conceded by Farris. Casanova was the only
one of the five who was a union member. The signatures of the other four appear
on Ferrell's letter.
When Farris terminated his employment Casanova was told to look for other
work. Nothing was said to him about recall. Yet shortly after being interviewed
by Counsel Harper of the Board office during investigation of the charges in this
case, Farris reemployed Casanova although assigned to the Pharr division instead of
his regular job at Harlingen. He was recalled on November 12, 1962.
As a witness Farris claimed that he selected Casanova for layoff, when economic
necessity to cut runs occurred, because he was "weaker" and had more demerits
than the four drivers with less seniority. It is true that company records show that
during the month of April, after he had refused to sign the Ferrell letter, he was
given 13 demerits and one 3-day suspension. The Respondent offered no credible
evidence that any one of these penalties was deserved. In view of the above con-
clusion that during this period the Respondent was unlawfully applying its demerit
system and the recorded fact that Casanova had received but 12 demerits in the
preceding 6 months, the Trial Examiner believes that the burden was upon the
Respondent to show something more substantial than such questionable records to
support Farris' claim.
The Trial Examiner finds no merit in Farris' claimed reason for selecting Casanova
for either "discharge" or "layoff," whichever term is applied. And although he has
been put back to work, at the same pay, the evidence shows that he has not been
reinstated to his regular position at Harlingen.
The Trial Examiner concludes and finds that Casanova was unlawfully discharged
to discourage union membership and activity.
Villarreal: This employee had had some 6 or 7 years of service with the Respond-
ent when summarily discharged on August 2 or 3, 1962. He had worn his union
button openly and had not signed Ferrell's letter.
His interest in company business-as well as his own paycheck-is established
by the admitted fact that in July he suggested to Dispatcher Porter that passenger
traffic warranted an extra run on weekends to Brownsville, Texas. Upon his rec-
ommendation Porter set up such a run for him and further arranged that another
driver, Ramiro Garza, should meet his bus at Harlingen to take passengers on to
another destination. Garza and Villarreal made their respective runs and connec-
tions on one Saturday and Sunday.
According to Porter when the two drivers made their connection that Sunday
night he told them both to "pull these trippers every Saturday night and Sunday
night until you are told different." Both Garza and Villarreal, however, disputed
Porter's version. Garza admitted that Porter told him, but supports Villarreal's
testimony that the latter was not present when instructions for the next week were
uttered. In any event, unable to locate Porter the following Saturday and not find-
ing the extra posted at the terminal Villarreal failed to make the run that night.
At the terminal the next day, Sunday, Porter asked him why he had not made the
extra the night before. Villarreal replied that he had not been so instructed. He
willingly made the run that Sunday night, but was suspended and fired the next
week by Farris.
As a witness Farris claimed that he fired the driver because his failure to make
the "tripper" on that one occasion was a "deliberate act against company instruc-
tions that resulted in loss of business to the Company." Hardly a more extravagant
and unfounded accusation is conceivable. The extra runs themselves, and whatever
profit the Company made, were the direct result of the driver's suggestion.
The Trial Examiner believes the testimony of Villarreal and Garza to the effect
that the former was not present the preceding Sunday when Porter said to continue
VALLEY TRANSIT COMPANY, INC. 671
the trippers the next week. It is reasonable to believe , and it is found , that Villar-
real failed to make the run that Saturday night only because he did not understand
that he was supposed to. At worst it was a mere misunderstanding, and clearly not
an act of insubordination . There was no refusal.
Under these circumstances , and including the Respondent 's concurrent unlawful
conduct, the Trial Examnier concludes that Villarreal was unlawfully discharged
to discourage union membersip and activity.
Solomon: This driver also had about 7 years' service when he was summarily dis-
charged on August 6, 1962. He also had not signed Ferrell 's letter and wore his
button.
It is the claim of Farris that Solomon was discharged because he "lied" to Super-
intendent of Transportation Slack at a time when he was "filling in" for Dispatcher
Porter. According to Slack on a Saturday , shortly before the discharge , he came
into the dispatch room looking for a driver to assign to an extra "tripper." He saw
Solomon standing by the "sign -out sheet," he testified , and asked him if he was
"through" on the charter run from which he had lust returned , the bus then being
"cleaned out" just outside the office at his own instructions . Also according to
Slack, Solomon answered "No," whereupon he inquired what time he had to leave.
He quoted Solomon as saying "Three o 'clock," so he turned around, went out, and
tried to locate another spare driver . About 4 o'clock , Slack continued , he "happened
to look out the window from my office and there sat the bus that I thought Solomon
was going to use." He then returned to the dispatcher 's room and on the "sign-out"
sheet discovered that Solomon had "signed out at 1:45 ." When Porter finally came
in, apparently sometime after 4 o 'clock, Slack told him that Solomon had "pulled a
cute one." Porter reported what Slack told him to Farris.
According to the more credible testimony of Solomon , when he reported in with
his chartered bus at 1:45 p .m. that Saturday , he inquired of Slack where Porter was.
Slack said he did not know. Solomon then told him that he was through with his
charter bus , but that the "charter people" had left a "beer barrel and some other
things" in it. Shortly after this , according to the driver , he heard Slack say some-
thing about "looking for an extra-board driver," but that he did not understand
Slack to be talking to him.
The following Monday, August 6, Solomon was suspended and on August 9 per-
manently discharged , being told by Farris that it was because he "lied" to Slack.
The Trial Examiner believes Solomon, not Slack. No evidence was brought
forward by the Respondent to show that Solomon throughout his long service was
of an untrustworthy character . Company records show that for the entire 15-
month period from January 1961, through March 1962 , Solomon had never been
suspended for any rule infraction and had received a total of only 12 demerits.
Yet in the 3-month period of April , May, and June , 1962, after the election, he
was given not only a suspension but 19 demerits . None of the demerits , with or
without merit , were for deceiving or attempting to deceive a dispatcher in order
to avoid a run, according to the records.
Moreover , upon analysis Slack's account is incredible on its face . He admitted
that he had the bus "cleaned out," thus supporting the substance of Solomon's
testimony to the effect that he told him he was through with the charter. It is
hardly reasonable to believe that he would have removed the beer from the bus
if he really expected the charterers were to be back or be picked up later by the
same bus. Nor does his testimony reveal reasonable explanation for the fact that
he was apparently immobile or unobservant from 1.45 to 4 o'clock, and did not
until the latter hour discover that Solomon had "signed out" at the former hour-
with the bus itself just outside his window all this period.
The Trial Examiner is convinced and finds that Solomon did not "lie" to Slack,
and that Farris discharged him, as he had Villarreal and Casanova , to discourage
union membership and activity.
E. The alleged discrimination against F. Benavidas
It appears that shortly after the election Benavidas ' regular run, along with that
of several others , was cut back , reducing the number of hours for the drivers
concerned . General Counsel makes no claim that these several cutbacks in service
were not brought about by economic necessity or that-except for Benavidas'
run-they were unlawfully discriminatory . Yet he offered no evidence that this
employee's run was unnecessarily cut, or that he actually suffered discrimination.
Under these circumstances the Trial Examiner finds that the evidence is insufficient
to support the allegation of discrimination concerning this driver.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Alleged discrimination against A. F. Garza
General Counsel alleges and the Respondent denies that driver A. F. Garza was
discriminatorily suspended for about a week in July 1962 to discourage union
membership.
In the opinion of the Trial Examiner the preponderance of evidence fails to sup-
port General Counsel's contention. In quick summary, the circumstances were
these. For some time before his suspension Garza had been, as part of his regular
duties, delivering a certain bus from the shop to the Pharr terminal. One day he
failed to make the delivery because, according to his own testimony, he preferred
to take care of certain personal matters. He did not notify management before-
hand that he would not or could not make the delivery. After the suspension the
matter was taken up as a grievance, and the union representative apparently agreed
that the delivery was a part of the assigned duties. In any event, Garza has con-
tinued to make the bus delivery since the suspension.
Whether the suspension was over-severe or not is not for the Trial Examiner to
decide. Substantial evidence supports the management contention that it was im-
posed because of his failure to perform his duties.
G. Conclusions
The Trial Examiner concludes and finds that by discharging drivers Casanova,
Villarreal, and Solomon , and by discriminatorily applying the demerit and suspen-
sion system, for the purpose of discouraging union membership and activity; and
by the circulation of the Ferrell letter and the implied threats of reprisal by Porter
and Farris, herein described, the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent offer employees Casanova, Villarreal,
and Solomon immediate and full reinstatement to their former or substantially
equivalent positions-in the case of Casanova to the position at the Harlingen ter-
minal from which he was discriminatorily discharged-without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination against them, by pay-
ment to each of them of a sum of money equal to that he would normally have
earned as wages, absent the discrimination, from the date of such discrimination to
the date of the offer of reinstatement, in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289
The backpay obligations of the Respondent shall include the payment of interest
at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.
In view of the serious and continued nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from in any manner in-
fringing upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Brotherhood of Railroad Trainmen, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of employees Casanova,
Villarreal, and Solomon, and by discriminatorily applying the demerit and suspension
system, thereby discouraging membership in and activity on behalf of the above-
LLOYD A. FRY ROOFING CO. INC., ETC. 673
named labor organization, the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Lloyd A. Fry Roofing Co . Inc. and Volney Felt Mills, a Division
Thereof and Oil , Chemical & Atomic Workers International
Union, AFL-CIO
Lloyd A. Fry Roofing Co . Inc. and Volney Felt Mills, a Division
Thereof and Oil, Chemical & Atomic Workers International
Union, AFL-CIO, Petitioner. Cases Nos. 11-CA-1978 and 11-
RC-1661. May 16, 1963
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On February 8, 1963, Trial Examiner Wellington A. Gillis issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that certain of the above unfair labor
practices engaged in by the Respondent affected the results of the
Board election in the above-captioned representation case and rec-
ommended that the said election be set aside and that a new election
be held at such time as the Regional Director for the Eleventh Region
deems that circumstances permit the employees a free choice of a
bargaining representative. He further found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed with
respect thereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
142 NLRB No. 78.