American Buslines, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 947 (N.L.R.B. 1974)

AMERICAN BUSLINES, INC. 947
American Buslines , Inc., A Division of Continental
Trailways' and Mary Margaret Withrow. Case
14-CA-7666
June 24, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Withrow, and whether Respondent otherwise violated
Section 8(a)(1) of the Act by certain conduct to be
chronicled hereinafter. Briefs have been received from the
General Counsel and the Respondent which have been
duly considered.2
Upon the entire record made in this proceeding,
including my observation of the demeanor of the witnesses
who testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
On February 27, 1974, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings , findings ,2 and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, American Buslines,
Inc., A Division of Continental Trailways, St. Louis,
Missouri , its officers , agents , successors , and assigns,
shall take the action set forth in the said recommend-
ed Order.
I The name of Respondent appears as amended at the hearing.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MAx ROSENBERG , Administrative Law Judge: With all
parties represented , this case was tried before me in St.
Louis, Missouri , on January 31, 1974, on a complaint filed
by the General Counsel of the National Labor Relations
Board and an answer interposed thereto by American
Buslines , Inc., A Division of Continental Trailways, herein
called the Respondent.' At issue is whether Respondent
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, by discharging Mary Margaret
I The complaint, which issued on December 19, 1973, is based upon a
charge filed and served on November 12, 1973.
2 Respondent's motion to correct transcript of record, which is contained
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Delaware corporation, maintains an
office and place of business in the City of St. Louis, State
of Missouri, where it is engaged in the business of
interstate transportation. During the annual period materi-
al to this proceeding, Respondent derived gross revenues in
excess of $50,000 from furnishing interstate passenger and
freight transportation services. The complaint alleges, the
answer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1133, Amalgamated Transit Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when, on November 5, 1973,3 Division
Superintendent D. J. Frieden and Assistant Superintendent
T. L. Creech informed the Charging Party , Mary Margaret
Withrow, that she would not be retained in Respondent's
employ due to their belief that her husband was an active
union advocate . The complaint further alleges that, on
November 5, Respondent discharged Withrow because she
sought membership in the Union and /or because it
harbored the belief that her husband was an active
advocate of unionism , in violation of Section 8(a)(3) and
(1). For its part, Respondent denies the commission of any
labor practices proscribed by the statute.
As indicated heretofore , Respondent furnishes passenger
transportation services to the public and employs hostesses
who ride its buses and attend to the comfort of the
passengers . In 1967 , Withrow obtained a job as a hostess
with Respondent which lasted for a period of 4 months,
when she got married . During that tenure of employment,
she joined the Union, which represents Respondent's
hostesses . In May or June , Withrow sought reemployment
with Respondent and was interviewed by T. L. Creech,
Respondent's assistant superintendent in St. Louis. During
this session, Creech broached the subject of Withrow's
prior employment with the Company and noted that she
had established a good work record. The discussion then
turned to Withrow 's marital status and family life, and she
in its brief, is hereby granted.
3 Unless otherwise indicated , all dates herein fall in 1973.
211 NLRB No. 149
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assured Creech that her husband had no objection to her
employment with Respondent and that her children would
not be discomfited by her prolonged absences from home.
After several subsequent contacts with Creech, Withrow
was employed by Respondent as a hostess on September 8.
It is undenied and I find that, when she received her first
paycheck, Withrow believed that she had not obtained the
proper amount of compensation. Withrow discussed the
matter with Creech who explained the bases for the
mathematical computations . Sometime thereafter, With-
row made a run in a bus operated by driver Leo Forrester,
who held the office of union business agent in the St. Louis
area . During the trip, Withrow questioned Forrester as to
whether she could apply for membership in the Union
despite the fact that she had not completed her probation-
ary period.4 The subject turned to Withrow's husband, and
Withrow mentioned that he had been a shop steward in an
aerospace union when he was employed in the aerospace
industry in California about 8 years earlier.
Events abided and , on some undisclosed date thereafter,
I find that Withrow and her husband engaged in a
discussion at home regarding Respondent 's pay scales and
the possibility of her joining the Union as a probationary
employee. Convinced by her spouse that it was the normal
practice for labor organizations to admit such employees to
membership, Withrow decided to confirm this intelligence
and she telephoned Forrester at his residence. With her
husband listening in on' an extension phone, Withrow
commenced the conversation by questioning Forrester
about the pay scales and the discussion turned to
Withrow's desire to join the Union prior to the expiration
of her probationary period. When Forrester noted that
Withrow's application would require extensive paperwork
for the Union in the event the latter decided to leave
Respondent 's employ prior to the completion of the
probationary period, therefore not perfecting her union
membership , Withrow's husband joined the colloquy. After
a heated discussion between Forrester and the husband
concerning Withrow's application for membership, Forres-
ter angrily terminated the dialogue.
Sometime following this telephonic conversation, With-
row's spouse contacted the Union's president who resided
in Pittsburgh, and obtained the requisite application forms
which were ultimately transmitted to Withrow by Forres-
ter. Approximately 2 weeks before her discharge on
November 5, Withrow met Forrester at Respondent's
garage and apologized to him for causing any friction,
stating that "I was just wanting to join the Union and I
told him that if I had intentions of quitting I would never
have gone down there in the first place and I was just
wanting to get into the Union." It is undisputed and I find
that the details of the dispute between Withrow's husband
and Forrester, as well as to the former union shop steward
status of the spouse, were brought to the attention of
Respondent's Division Superintendent Frieden and Assist-
ant Superintendent Creech shortly after the dispute arose.
It is also undisputed and I find that, on November 5,
Withrow telephoned Creech regarding her timecard and
the hiring of a new girl as a hostess . When Creech
suggested that the new girl might be a replacement for
Withrow, the latter immediately contacted Frieden to
inquire into her employment status. Frieden informed
Withrow that she had been discharged on that day.
Withrow asked for the reason for her termination and was
told by Frieden that it was "Because of you husband,
because of his past Union experience and we don't want
any outsiders in our Union." Thereupon, Withrow again
telephoned Creech and, in the ensuing conversation,
Creech stated that Withrow had been fired because "they
were afraid of my husband."5 Withrow's discharge was
finalized on November 5 and, since that date, she has never
been recalled by Respondent.
As heretofore found, Respondent learned sometime after
Withrow's employment on September 8 that her husband,
who had been a shop steward for an aerospace labor
organization, had angered Business Agent Forrester by
seeking to have his wife join the Union prior to the end of
her probationary period and by going over the head of
Forrester and directly contacting the president of the
Union in order to obtain a membership application for her.
Upon receiving this intelligence , I find that Respondent,
through Division Superintendent Frieden, discharged
Withrow in order to forestall her admission into the ranks
of the Union in the belief that her husband was a
troublemaker who would create dissension between Res-
pondent and the Union. Accordingly, I conclude that, by
severing Withrow from its employment rolls on November
5, Respondent violated Section 8(a)(3) and (1) of the Act .6
I further conclude that , by the statements of Frieden and
Creech made to Withrow on November 5, to the effect that
she would not be retained on Respondent's payroll because
of their belief that her husband was an active union
advocate, Respondent thereby independently violated
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent discharged Mary Marga-
4 Pursuant to a collective-bargaining agreement between Respondent employment "because we were afraid that after the qualification [probation-
and the Union, new employees must undergo a probationary period of 75 ary l period we would have deep problems with her husband."
days after which they become permanent employees and are required to join 6 See Washington Forge, Inc., 188 NLRB 90, 93; Rome Specialty Co, Inc.,
the Union. 84 NLRB 55, 57.
5 According to Fneden's testimony, he elected to terminate her
AMERICAN BUSLINES, INC.
ret Withrow on November 5, 1973 , for reasons which
offended the provisions of Section 8(aX3) and (1) of the
Asst. I " shall therefore rebmmend that Respondent make
her whole for any loss of pay which she may have suffered
as a result of the discrimination practiced against her. The
backpay provided for herein shall be computed in
accordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at the rate of 6 percent per annum computed in the manner
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions , and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Mary Margaret Withrow, thereby
discriminating in regard to her hire and tenure of
employment, in order to discourage membership in the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 2(6)
and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant - to Section 10(c) of
the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER?
Respondent , American Buslines , Inc., A Division of
Continental Trailways , St. Louis, Missouri, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Warning employees that they will be subject to
discharge because of the protected union activities of their
spouses.
(b) Discharging employees, thereby discriminating in
regard to their hire and tenure of employment , in order to
discourage membership in Local 1133, Amalgamated
Transit Union, AFL-CIO , or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act.
(a) Offer to Mary Margaret Withrow immediate and full
reinstatement to her former job or, if it no longer exists, to
substantially equivalent employment, and make her whole
for any loss of pay which she may have suffered as a result
of the discrimination practiced against her, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request , make available to the
949
Board or its agents, for examination and copying, all
payroll records , social security records and reports, and all
other records necessary to analyze the amount of backpay
due herein.
(c) Post at its facility in St. Louis , Missouri , copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms to be provided by the Regional Director
for Region 14, after being duly signed by Respondent's
authorized representative , shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of receipt of this
Decision , what steps have been taken to comply herewith.
r In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto shall
be deemed waived for all purposes.
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees , thereby
discriminating in regard to their hire and tenure of
employment , in order to discourage their membership
in Local 1133, Amalgamated Transit Union, AFL-
CIO, or any other labor organization.
WE WILL NOT warn our employees that they will be
discharged because of the protected union activities of
their wives or husbands.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended.
WE WILL make Mary Margaret Withrow whole for
any loss of pay she may have suffered as a result of our
discrimination practiced against her, and WE WILL
reinstate her.
All our employees are free to become , remain, or refrain
from becoming or remaining members of the above-named
or any other labor organization.
AMERICAN BUSLINES, INC.,
A DIVISION OF
CONTINENTAL TRAILWAYS
(Employer)
Dated By
(Representative) (Title)
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions may be directed to the Board's Office, 210
This notice must remain posted for 60 consecutive days North 12th Boulevard , Room 448 , St. Louis, Missouri
from the date of posting and must not be altered, defaced, 63101, Telephone 314-622-4167.
or covered by any other material.