Transit Management Services

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 721 (N.L.R.B. 1990)

TRANSIT MANAGEMENT SERVICES 721
K & G Bus Transportation Services , Inc., d/b/a
Transit Management Services and International
Association of Machinists and Aerospace Work-
ers, AFL-CIO, District Lodge 115 , Local Lodge
1596. Case 20-CA-21939
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 29, 1989, Administrative Law
Judge Gordon J. Myatt issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the 'recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, K & G Bus
Transportation Services, Inc., d/b/a Transit Man-
agement Services, Petaluma, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings.
In its answer to the complaint, the Respondent denied that Keith
Grimm, its owner/manager, and Robert Cramer, its supervisor/manager,
were supervisors The General Counsel has excepted to the judge's fail-
ure to make a finding regarding alleged supervisory status of Grimm and
Cramer In finding merit to the General Counsel's exception, we rely on
record testimony showing admissions by Grimm and Cramer that they
possess and have exercised the traditional indicts of supervisory authority
in the operation of the Respondent's transit company, including hiring
and discharging employees Accordingly, we find that Grimm and
Cramer are supervisors within the meaning of the Act.
Nancy E. Watson-Tansey, Esq., for the General Counsel.
J. Mark Montobbio, Esq. (Severson, Werson, Berke & Mel-
chior), of San Francisco, California, for the Respond-
ents.
Machinists and Aerospace Workers, AFL-CIO, District
Lodge 115, Local Lodge 1596 (the Union), the Acting
Regional Director for Region 20 issued a complaint and
notice of hearing against K & G Bus Transportation
Services, Inc., d/b/a Transit Management Services (var-
iously called TMS or Respondent) on June 17, 1988. The
substantive allegations of the complaint allege that,
acting through its agents and/or supervisors, Respondent
on various dates: (1) unlawfully interrogated employees
about their union sympathies and activities and about
similar activities of other employees; (2) threatened em-
ployees with unspecified reprisals for engaging in union
activities; and (3) threatened to impose more stringent
working conditions and greater discipline on union-rep-
resented employees. The complaint also alleges that Re-
spondent unlawfully discharged employee Melody
Nisson-Joseph on December 27, 1987, unlawfully issued
written warnings to employees Connie Merrill and Phyl-
lis Bernard on various dates in February and March
1988, and unlawfully discharged Bernard on March 26,
1988. The complaint alleges that by the asserted unlawful
conduct, Respondent has violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act), 29 U.S.C.
§ 151 et seq. Respondent filed an Answer in which it ad-
mitted certain allegations of the complaint, denied others,
and specifically denied committing any unfair labor prac-
tices.
A hearing was held on this matter on August 16 and
17, 1988, in Santa Rosa, California. All parties were rep-
resented by counsel and afforded full opportunity to ex-
amine and cross-examine witnesses and to present materi-
al and relevant evidence on the issues.
On the entire record in this matter,' from my observa-
tion of the witnesses while testifying, and after due con-
sideration of the briefs filed by the parties, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a California corporation engaged in the
operation of a transit system in Petaluma, California,
where it maintains an office and place of business. The
pleadings admit that during the calendar year ending De-
cember 31, 1987, Respondent derived gross revenues in
excess of $250,000 in the course of its business oper-
ations. During the same period, Respondent purchased
and received goods, materials and products valued in
excess of $25,000 from points located outside the State of
California. On the basis of the above, I find Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On a
charge and an amended charge filed on May 4 and June
17, 1988, respectively, by International Association of
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 115, Local Lodge
i Counsel for the General Counsel filed a Motion to Correct Tran-
script with her brief. The motion is granted. Accordingly, errors in the
transcript have been noted and corrected
298 NLRB No. 101
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1596, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
In 1981, K & G Transportation Services, Inc. (K & G)
took over the performance of a contract to provide the
city of Petaluma with city bus service. K & G assumed
this service under the name of one of its operating enti-
ties called Transit Management Services.2 Keith Grimm,
owner of K & G is also the owner of several other trans-
portation companies, including a charter service called
Western Charter (Western). Grimm maintains his offices
at the facilities of Western, which is in a different loca-
tion in Petaluma than the offices and facilities of TMS.
When TMS took over the performance of the bus
service contract, a unit of its predecessor's employees
were represented by the Union. This unit was composed
of the mechanic and the "bid drivers." TMS hired a ma-
jority of the predecessor's employees and recognized the
Union as their collective-bargaining representative. The
record discloses that TMS and the Union have been par-
ties to successive bargaining agreements since that time.3
According to the unrefuted testimony, under the terms
of the bus service agreement the city provides the bus
equipment and establishes the routes and stops, as well as
other requirements of service. TMS, in turn, maintains
and performs all mechanical repairs on the equipment
and operates the buses as prescribed by the city. The bus
service is provided to the city from Monday through
Saturday.
Bid drivers are classified as such because under the
collective-bargaining agreement they bid (based on se-
niority) on the scheduled routes they drive. Bid drivers
receive health and welfare and various other fringe bene-
fits under the terms of the bargaining agreement . In addi-
tion to bid drivers, however, Respondent employs an-
other group of drivers known as "on-call drivers." This
latter group of employees are not represented by any
union. In contrast to the bid drivers, on-call drivers
rotate shifts and routes and receive their assignments and
work schedules for each week on the preceding Friday.
On-call drivers do not acquire any seniority, nor do they
have any rights under the collective-bargaining agree-
ment. They receive a higher starting hourly wage rate
than the unionized drivers, but have none of the health
and welfare or other fringe benefits provided for in the
collective-bargaining agreement. When on-call drivers
are not scheduled to work on other than a requested day
off, they are subject to call by Respondent to fill in for
drivers who fail to report to work due to illness or for
other reasons.
2 K & G and Transit Management Services are collectively referred to
as Respondent or TMS
3 The contract term for each collective -bargaining agreement between
TMS and the Union has been for a period of I year This is occasioned
by the fact that the bus service contract between TMS and the city is
renegotiated annually There has never been a strike or a work stoppage
since the inception of the bargaining relationship between TMS and the
Union
The collective-bargaining agreement makes provisions
for on-call drivers who elect to become bid drivers.
When such an election is made, the driver is required to
go through a 60-day probationary period.4 In actual
practice, this meant that the on-call driver joined the
Union and the union representative then sent notification
to the Respondent of this fact. The driver would then
begin his or her 60-day probationary period and would
participate in the bidding on the routes.
The General Counsel was permitted to elicit testimo-
ny, by way of background, purporting to show Respond-
ent's attitude toward on-call drivers becoming members
of the Union. For example, Melody Nisson-Joseph (one
of the alleged discriminatees) testified that when she was
hired in March 1984, Robert Cramer, Respondent's man-
ager, asked if she ever belonged to or knew about
unions. Cramer also told Nisson-Joseph that animosity
existed between the on-call and bid drivers.5 Nisson-
Joseph further testified that approximately 6 months after
she was hired, Cramer informed her that if she joined the
Union, it would cost her $150 in initiation fees and $48 a
month. According to Nisson-Joseph, he also stated that
she would not be eligible for any of the contract benefits
for a year. When Nisson-Joseph indicated she did not
want to join the Union, Cramer had her sign a card to
that effect.
Nisson-Joseph also testified that in the fall of 1986
Cramer interviewed Gail Burge as a prospective driver.
According to Nisson-Joseph, when she later asked
Cramer if he had hired Burge, Cramer replied he had not
because he felt that Burge was a union organizer and her
husband drove for the Sonoma Transit Company. Burge
was subsequently hired in May of the following year by
Grimm when Cramer was away from the job for an ex-
tended period of time due to illness. Nisson-Joseph testi-
fied that when Cramer returned, he told her that he
would not have hired Burge.6
Nisson-Joseph further testified that in August 1987, she
recommended Phyllis Bernard to Cramer for a job as a
driver. Nisson-Joseph testified that Cramer asked what
Bernard thought about unions and she replied that she
did not know. Nisson-Joseph told Cramer that Bernard's
husband was a member of a union. Bernard testified that
when she was hired by Cramer he asked how she felt
about unions. She informed Cramer that her husband
4 Sec 24 of the collective-bargaining agreement provides, in relevant
part
B There will be a sixty (60) day probationary period for the on-call
driver who would get a bid. The EMPLOYER may terminate an
employee for any reason, whatsoever, during the probationary
period and said termination will not be subject to the grievance pro-
cedure (See G C Exh 2, p 14 )
The undisputed testimony indicates that on-call drivers resented
having to rotate their assignments and routes each week and having to
work on weekends (Saturdays) while the bid drivers had regularly sched-
uled routes and assignments and did not work on weekends.
6 According to the testimony of Burge, when she was hired by Grimm,
she was told that a union represented some of the employees . She also
stated that Grimm said if she were to join the Union, there would be
some benefits under the contract but she would have to take a cut in pay
Further, that she would not receive leave for a year but that the contract
benefits would even out the reduction in her salary (Apparently Burge
was referring to the fact that as a union employee she would not be enti-
tled to paid vacation until she had been employed for a year )
TRANSIT MANAGEMENT SERVICES
was a union member and received benefits under his col-
lective-bargaining agreement. She stated she had no feel-
ings one way or the other about unions. According to
Bernard, Cramer stated he had nothing but trouble with
the Union that represented Respondent's employees and
with a particular union driver.
Finally, by way of background testimony, Nisson-
Joseph and employee Connie Merrill had a meeting
sometime in August or September 1986 with Grimm in
his office at Western Charter. The employees met with
Grimm because at the time there were only two union
drivers left in Respondent's employ and all of the other
drivers were on-call drivers. The employees were seek-
ing to find out if they could be assigned to regularly
scheduled routes rather than continue under the rotating
system. Grimm told the employees that nothing could be
done about changing their assignments because the
Union was still the collective-bargaining representative.
One of the employees asked what was the best way to
get rid of the Union, and Grimm responded that they
could join the Union, paying the $150 initiation fee, and
then vote the Union out. Grimm told the employees he
would not reimburse the $150 to them if they chose to
do this. He further stated, according to Nisson-Joseph,
that if their conversation went beyond the walls of his
office, he would, deny it had taken place.
Cramer acknowledged that he made it a practice to
inform new employees that some of the,employees were
represented by the Union and some of the employees
were unrepresented. He specifically denied that he ever
asked Bernard how she felt about unions or telling the
employee that he had nothing but trouble with the Union
and a union employee. Cramer stated he always in-
formed new drivers that there was friction between the
union drivers and the on-call drivers, and did so in order
to get them to ignore any incident which might occur as
a result of it. Cramer admitted asking employees specifi-
cally in 1984 whether they wanted to join the Union and
to indicate their preference by signing a card. He said
this was to enable Grimm to notify the Union concern-
ing the employees' preference.' Cramer denied ever
asking Nisson-Joseph whether Burge was a union orga-
nizer. Cramer testified that he had known Burge from
prior employment and his only concern was whether she
were too large to fit behind the steering wheel of a bus.
Cramer denied making the statement to Nisson-Joseph,
when he returned to work from his illness, that he would
not have hired Burge.
Grimm acknowledged meeting with - Nisson-Joseph
and Merrill in October 1986 concerning their request to
be assigned regularly scheduled routes. Grimm testified
he informed the employees that as long as bargaining
unit employees were at TMS he could not give on-call
drivers regularly scheduled routes. According to Grimm,
the employees then stated there were only two union-
' Grimm testified that during contract negotiations in 1984 he was
asked by the union representative to poll the on-call employees to deter-
mine whether they desired to become union members Grimm had
Cramer conduct such a poll and through his representative notified the
union business representative, Don Whittaker, that none of the on-call
drivers were interested in being represented by the Union (See R Exh
15)
723
represented employees on the payroll. They asked how it
would be possible to get rid of the Union. According to
Grimm, he said in jest that the on-call employees could
join the Union and vote it out. He told the employees
that he hoped their conversation would not go beyond
the four walls of his office and that he should not even
be talking to them about the matter.
B. The Operational Structure of TMS
As noted, Cramer was the manager in charge of the
day-to-day operations of TMS. Cramer normally worked
from 4 a.m. to 4 p.m. or later. In addition to Cramer, Re-
spondent employed a dispatcher, Wanda Tucker, to
work in the office." Although Tucker's precise wage rate
was not established in the record, the testimony discloses
that she received between $6 and $6.50 an hour; which is
less than the hourly wage rate of the drivers. Tucker re-
ceived no benefits other than a paid vacation.
Tucker normally worked from 8 a.m. to 5 p.m. Her
duties included keeping in contact with the drivers while
they were out on their routes. In this connection, Tucker
responded to drivers' requests for route deviations or
permission to skip stops because of lack of passengers,
reports of equipment difficulties or failures, and reports
from drivers when they began or ended their breaks
after completing their runs. In making the radio commu-
nications, Respondent's office was designated as "Con-
trol-l." In addition to the radio communications, Tucker
was responsible for handling the office paperwork such
as payroll records, reports on mileage and fuel use, the
passenger count reports, and all office filing and typing.
The testimony indicates that when` Cramer determined
the weekly scheduling for ton-call drivers, Tucker typed
up the schedule and notified the drivers of their assign-
ments. When drivers were unable to report for their
scheduled shifts, because of illness or other reasons, they
were required to contact Respondent's office at least 2
hours before they were to start work.9 Generally, if they
called before 8 a.m., they either spoke directly with
Cramer or left a message on Respondent's answering ma-
chine. If they called after 8 a.m., they usually spoke with
Tucker who in turn notified Cramer or, in his absence,
Grimm. When this occurred, Cramer (or Grimm) would
then instruct Tucker as to which on-call driver on stand-
by status to contact to fill in on the route.
It is undisputed that Tucker had no authority to hire
or fire or discipline employees in any fashion; nor could
she recommend such action. The undisputed testimony
indicates that Tucker could not grant employees time off
from work but would merely pass their requests on to
Cramer or, in his absence, to Grimm. Respondent had a
policy whereby drivers were required to make a request
in writing 2 weeks in advance for a day off. The record
shows that such requests were not routinely granted but,
rather, depended upon Cramer's assessment of Respond-
8 Tucker was a former on-call driver who became the dispatcher some-
time in 1985 Tucker was not called as a witness in these proceedings and
the account of her duties and activities is taken from the testimony of
other witnesses
e This requirement applied to bid drivers as well as on-call drivers
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent's needs on the requested day and the extent of the
driver coverage. 10
As noted, drivers contacted Control-1 (usually Tucker)
for permission to make route deviations or to skip por-
tions of a route when there were no passengers to be dis-
charged or picked up. According to the testimony of em-
ployee witnesses, Tucker routinely granted them permis-
sion to make such deviations or skips.' 1 Cramer, on the
other hand, testified that Tucker had specific instructions
as to when to permit route deviations. He stated that Re-
spondent's contract with the city required the Company
to make unscheduled stops at two local hospitals upon
request. Also, that Respondent was required to make
route deviations for handicapped passengers who were
making bus connections with the Sonoma bus line when
going to or from work shops conducted by the Fire-
man's Fund Insurance Company. Cramer stated that
when anything other than these specified deviations
came up that were out of the ordinary, Tucker was re-
quired to contact him or Grimm before making any deci-
sions regarding a request to skip routes or make devi-
ations.
During the second week in November 1987, an occa-
sion arose where both Grimm and Cramer had to be out
of town at the same time. (See G.C. Exh. 17.) The testi-
mony shows that Grimm maintained daily telephone
contact with Tucker at Respondent's office and that
Tucker had the responsibility for the on-site operation of
the business in their absence. While the testimony of the
employee witnesses indicate that Tucker switched some
of the assignments of the on-call drivers during this
period, it does not indicate whether these changes were
authorized by Grimm during his daily telephonic com-
munication with Tucker. Although Tucker was the only
person in Respondent's office during this 1 week in No-
vember, when Cramer was away from work for 6
months due to illness in 1987, Grimm hired an outside
person with transportation experience to run the oper-
ation. On December 24, 1987, Grimm issued a memo to
all of the drivers complimenting them on their work
during the Christmas traffic rush. In this memo Grimm
stated, "Management, all of us, Bob, Wanda, and I want
to express a sincere appreciation to the great majority of
you drivers who have done a good job." 12
C. The Employment and Termination of Nisson-
Joseph
As noted, Nisson-Joseph began her employment as an
on-call driver with Respondent in 1984. Until 1987,
Nisson-Joseph had never received any warnings from or
experienced any disciplinary action by Respondent.
During the first part of September 1986, Nisson-Joseph
had a child care problem involving her school-aged chil-
dren and was unable to report to work. Because she was
considered a good employee by Respondent, she was
permitted to take a leave of absence for several weeks to
10 See R Exhs 2-14 for examples of Respondent 's action on employee
request for time off
11 Employees Joseph, Merrill, and Burge all testified that over the
course of their employment, they were granted permission by Tucker to
make deviations or skips on their routes upon request.
12 See G C Exh. 5
resolve the problem and then return to work. (See G.C.
Exh. 25.)
Sometime during September of the following year,
Nisson-Joseph reported a complaint by a passenger to
Cramer . She stated the passenger was critical of the serv-
ice provided on the routes and blamed it on the fact that
so many drivers were rotated each week . The passenger
wanted to start a petition to have the drivers assigned to
permanent routes on regularly scheduled shifts. Nisson-
Joseph told Cramer that she felt this was a good idea
and was considering joining in the effort by signing the
petition . According to Nisson -Joseph , Cramer replied
that Nisson-Joseph would be going against management
if she did so.13 Nisson-Joseph further testified that-sever-
al weeks later she was the subject of a complaint made
by a pedestrian . This complaint was presented to Nisson-
Joseph by Cramer in the form of an "Employee-Employ-
er Conversation Information Report." (G.C. Exh. 8.)14
The pedestrian complained that Nisson-Joseph , while op-
erating a bus, attempted to run over him at an intersec-
tion . Nisson-Joseph responded on the report that the man
was having a conversation in the crosswalk and when
she motioned for him to move on , he made a gesture and
called her an obscene name.
Sometime in October 1987, Nisson -Joseph along with
on-call drivers Merrill and Burge began meeting and dis-
cussing the possibility of organizing their own union.
They made various inquiries and ultimately spoke with a
city employee who had experience in such matters. The
on-call drivers ultimately decided that it was not feasible
to organize their own union or association.
On November 10, Nisson-Joseph put in a written re-
quest for a day off on the Saturday (November 28) after
Thanksgiving Day. Nisson -Joseph testified she gave the
request to Tucker who told her "not to worry about it"
and that she (Tucker) would take care of it. According
to Nisson-Joseph, when the assignments were made for
the week of Thanksgiving , she was scheduled to drive
on the Saturday she wanted to be off. She spoke with
Cramer who told her that he had to make the assign-
ments but he would see that the Saturday routes were
covered . Nisson-Joseph stated that on November 25
(Wednesday), when she finished her route in the
evening, she found the response to her request in her box
at Respondent 's office. The request for time off had been
disapproved by Cramer . According to the testimony of
Nisson-Joseph, there was no reason given for the denial
of the request. However, the copy of the request submit-
ted into evidence stated, "no extra drivers." (See R. Exh.
1.) Nisson-Joseph then marked a notation on the reverse
side of the request form and fastened it to Cramer's
office door. The note stated:
13 Cramer testified he told Nisson-Joseph she was correct in reporting
the passenger's complaint to him He stated , however , that he cautioned
Nisson-Joseph against participating in a public complaint against the
Company
14 Employee-employer conversation reports were'not considered by
Respondent to be warnings or to result in disciplinary action According
to Respondent 's records and the testimony of Grimm, the reports were
merely to be informative and to gather information concerning events
should problems arise about those events at a later time Copies of the
conversation reports, however, were retained by Respondent in its files
TRANSIT MANAGEMENT SERVICES 725
Bob I will not be driving Sat.!!!
MEL
When Nisson-Joseph arrived at home, she contacted
Tucker by telephone and inquired as to why her request
had been disapproved. According to Nisson-Joseph,
Tucker stated Cramer changed the assignments made by
Tucker which would have given Nisson-Joseph the Sat-
urday off that she wanted. At this point, Nisson-Joseph
informed Tucker that she and Merrill were looking into
the possibility of joining a union and had discussed a
union with someone who worked for the city. t 5 On the
Friday after Thanksgiving, Nisson-Joseph was unable to
report to work due to illness. She testified Grimm called
her at home and asked her to bring a medical excuse
before coming to work the following Monday. Nisson-
Joseph had never been required to submit a medical
excuse previously for a single day's absence. When Nis-
sons-Joseph returned to work that following Monday,
she had a medical excuse from her doctor. She did not
receive a warning or reprimand for her absence.
Nisson-Joseph further testified that on December 22,
she was in bumper-to-bumper traffic and 20 minutes late
on her route. She called Tucker on Control-1 and asked
for a skip. She stated Tucker denied her request. Ac-
cording to Nisson-Joseph, this was the first occasion that
she had ever been denied permission to make a skip
when she was late on her route and in heavy traffic. The
following day, according to Nisson-Joseph, while she
was in heavy traffic she received a call on her radio
from another driver coming in the opposite direction.
Nisson-Joseph was told to ask for a skip because there
were no passengers waiting on the balance of her route.
Nisson-Joseph testified she was 40 minutes late due to
the traffic. Nisson-Joseph placed a call on the radio to
Tucker and requested permission to skip the balance of
the route. This request was denied by Tucker, who told
Nisson-Joseph that she did not have authority to grant
Nisson-Joseph a skip in that area. Shortly thereafter, an-
other driver requested and was granted permission by
Tucker to make a deviation on his route. Nisson-Joseph
heard the conversation on her radio and placed a call on
the radio to the dispatcher. 16 She testified she asked to
be placed on monitor and then asked Tucker why she
had been denied a skip. Tucker again repeated she was
not authorized to grant a skip in Nisson-Joseph's area.
Nisson-Joseph then stated she felt it was "harassment"
and ended the radio transmission. Although Nisson-
Joseph testified she asked that the conversation be placed
on monitor, it was not done. As a result, the entire con-
15 On cross-examination Ntsson -Joseph denied that Tucker stated
Cramer could not get another driver to cover for her on that Saturday.
In her affidavit given to the Board, however, Nissons -Joseph stated that
Tucker informed her that Cramer had no one to cover Nissons -Joseph's
route on November 28
16 All radio transmissions between the drivers and Respondent's office
were broadcast throughout the system on each bus unless the conversa-
tion was placed on "monitor" at the dispatch office Monitoring usually
occurred when the driver requested that the conversation be placed on
monitor and generally related to reports about defects involving the
equipment . The monitoring device limited the conversations to the bus
involved and prevented drivers and the passengers on other buses from
overhearing the conversations
versation between Nisson-Joseph and Tucker was heard
by drivers and passengers on all of the buses.
Nisson-Joseph stated that on December 28, she was
met by Grimm at the terminal when she reported to
work. Grimm informed Nisson-Joseph that she was fired
and handed the employee her final paycheck. According
to Nisson-Joseph, Grimm said Nisson-Joseph had been
"out of sync" with Respondent for a year.
The testimony of Cramer and Grimm conflicts in
many critical areas with that of Nisson-Joseph regarding
the events that occurred during her employment and
about her discharge. Cramer testified that in August
1987, Nisson-Joseph was attempting to secure a loan and
needed forms to be filled out concerning her employ-
ment. Cramer referred her to Grimm who supplied the
information on the forms for the lender. According to
Cramer, Grimm described Nisson-Joseph as an "adequate
employee" on the loan application. Cramer stated
Nisson-Joseph became upset over this evaluation of her
performance as an employee and told Cramer that if
Grimm only considered her to be adequate, that was
what she would be thereafter. Cramer also stated Nisson-
Joseph asked him to redo the form if she provided him
with a blank copy and he refused. Thereafter, according
to Cramer, Nisson-Joseph's attitude changed. He stated
Nisson-Joseph became "very rude, could care less
whether she spoke to you, just kind of towed the line,
just very-very negative."
That October, according to Cramer, Nisson-Joseph re-
quested a day off which was denied by Cramer. He
stated Nisson-Joseph became very angry and threatened
to call in sick on that day. Cramer told Nisson-Joseph
that would be lying and he would not accept it. He said
Nisson-Joseph came to work, on the day she sought to
have off but wore shoes with spiked heels. Because such
shoes are unsafe for operating a bus, Cramer sent Ntsson-
Joseph home to change into driving shoes with low
heels. She did so and returned to work.
Cramer further testified that sometime that same
month, Tucker advised him that Nisson-Joseph and other
on-call drivers were thinking about starting an associa-
tion of the on-call drivers. He stated Tucker made no
mention of the on-call drivers joining the Union but
rather forming their own independent employee group.
Cramer admitted that he relayed this information to
Grimm.
Regarding Nisson-Joseph's request to be off from
work on the Saturday following Thanksgiving, Cramer
said he noted on the request that he did not have enough
drivers to cover the routes that day. After Nisson-Joseph
stuck the note to his office door, Cramer informed
Grimm of the incident. 17 Contrary to Nisson-Joseph,
Cramer recalled that he discovered the note attached to
his office door in the morning on Wednesday, November
25. He further recalled that Grimm called Nissan-Joseph
at home that day to speak to her regarding the incident.
Finally, Cramer stated that Nisson-Joseph's request on
December 23 for a skip on her route was denied by
is According to Cramer, although no reprimands or warnings were
given to Nisson-Joseph concerning any of the incidents involving her
conduct, he made it a practice to inform Grimm of each incident
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tucker because Tucker had to clear requests for devi-
ations on that route with him or Grimm. Cramer said
that the deviation which was granted to the other driver
on that date was automatic because that driver was on
the "Fireman's Fund" route where the handicapped pas-
sengers had to make connection with the Sonoma bus
line. When Nisson-Joseph accused Tucker of harassment,
Cramer informed Grimm of the incident and a decision
was made to discharge the employee.
Grimm's testimony essentially corroborated that of
Cramer. According to Grimm, when Nisson-Joseph
asked him to fill out the employment verification on her
mortgage loan application, the employee asked him to in-
dicate that she would receive more overtime than she
was normally working. Grimm stated he refused to do
so. Later, he was informed by Cramer that Nisson-
Joseph was upset because Grimm described her as an
"acceptable employee" on the loan application. Follow-
ing that, according to Grimm, Nisson-Joseph began to
have an "attitude problem." Grimm stated she did her
work in a perfunctory and mechanical fashion and was
not congenial.
Grimm also testified that Nisson-Joseph asked for a
Saturday off in October to attend a Halloween party and
the request was denied. He stated Nisson-Joseph threat-
ened to take the day off anyway by calling in ill. How-
ever, the employee reported to work as scheduled but
wore spiked-heel shoes. She was sent home to change
into shoes which were safer for operating a bus.
Grimm stated he was called on Wednesday (Novem-
ber 25) by Cramer regarding the note Nisson-Joseph at-
tached to Cramer's door stating she would not report to
work the coming Saturday. Grimm testified Cramer said
he had tried to accommodate Nisson-Joseph's request but
could not. Cramer informed Grimm that Nisson-Joseph
was upset because a less senior on-call driver was sched-
uled to have that Saturday off and Nisson-Joseph wanted
Cramer to reassign that driver in order to accommodate
her request. Grimm stated he supported Cramer's deci-
sion and placed a telephone call to Nisson-Joseph asking
if she could stop by his office when reporting to work
that afternoon. According to Grimm, Nisson-Joseph re-
fused and hung up on him. Grimm made a note of this
conversation. (See R. Exh. 16.)18
The Friday after Thanksgiving Nisson-Joseph did not
report to work as scheduled. Grimm telephoned the em-
ployee at her home and determined that she was in fact
ill. He stated that because Nisson-Joseph had threatened
to call in ill the prior month in order to get a requested
day off, he told the employee to bring a medical excuse
when she returned to work.
Grimm also testified that he was told about the inci-
dent involving Nisson-Joseph's response to Tucker's re-
fusal to grant a skip to the employee on December 23.
He also spoke with Tucker regarding the matter and de-
cided then to discharge Nisson-Joseph. According to
Grimm, he did not implement the discharge decision
until the following Monday because his wife, who was in
charge of payroll, did not work on the payroll until that
18 Nisson-Joseph denied receiving a telephone call from Grimm on
November 25 asking that she stop by his office
day. Grimm testified that when he gave Nisson-Joseph
her final paycheck, he told the employee that she had
gone through "a significant change in attitude and out-
look" in the past several months and she agreed. Grimm
stated he also told Nisson-Joseph that she was "out of
step with the goals and purposes of [Respondent's] oper-
ation" and should seek employment elsewhere.
Grimm acknowledged that Cramer informed him that
Nisson-Joseph and other on-call drivers were seeking to
form an employee association. He denied, however, that
this was a factor in his decision to discharge Nisson-
Joseph. According to Grimm, the change in her attitude
beginning in August, the "uncongenialness" toward him,
the demands and requests she made, the way she was
conducting herself, the "insubordination of the note" she
hung on Cramer's door, and the refusal on November 25
to come into the office at his request were all factors
which he considered in making the decision to terminate
Nisson-Joseph after the incident on December 23.
D. The On-Call Drivers Join the Union and Become
Bid Drivers
As noted, Nisson-Joseph told Tucker before Thanks-
giving that she and Merrill were considering forming an
employee association for the on-call drivers. Burge testi-
fied that shortly before Thanksgiving, Tucker asked if
she knew anything about employees joining a union. Ac-
cording to Burge, Tucker stated Nisson-Joseph was
"upset" and stated she was going to join a union. Burge
replied that Joseph was "delirious."
Merrill also testified that in late November 1987,
Tucker asked if Nisson-Joseph had spoken to her about
organizing or joining a union . Merrill stated that later
during this same day, Tucker told her that Merrill did
not have to tell Nisson-Joseph not to talk to Tucker [pre-
sumably about forming or joining a union] because she
[Tucker] was not going to repeat anything. Merrill re-
plied that Tucker could not "repeat what she did not
know."
Sometime in mid-January 1988,19 Merrill and several
other on-call drivers joined the Union. On January 25,
the Union notified Respondent of their names and re-
quested that they be added to the list of bid drivers.20
Merrill testified Tucker came up to her sometime in late
January and stated she knew that some of the on-call
drivers joined the Union. When Merrill replied they had,
Tucker stated, "some shit is going to hit the fan." Merrill
also testified she received a telephone call at home from
Tucker in late January in which Tucker asked if she had
joined the Union. Merrill responded that she had and
Tucker then began to speculate as to which of the other
on-call drivers might have joined the Union.
Burge also testified that sometime after she joined the
Union, Tucker spoke to her in Respondent's office. Ac-
19 Unless otherwise noted, all dates hereafter refer to the year 1988
20 The on-call drivers who sought to become bid drivers were Ber-
nard, Burge , Merrill, and Trujillo Nisson-Joseph's name was also includ-
ed with this group although she had been terminated the prior December
(G C Exh 6). On February 10, on-call driver Jack Brandon also joined
the Union and notification was sent to the Respondent to place his name
on the bid list (G.C Exh 7.)
TRANSIT MANAGEMENT SERVICES
cording to Burge, Tucker wanted to know if Burge had
joined the Union and why. Burge replied that she was
upset about the firing of Nisson-Joseph. Burge also stated
she wanted a regular route and the benefits provided by
the union contract. Tucker then questioned Burge about
the names of other employees who might have joined
the Union. She concluded the conversation by telling
Burge she did not blame the employees and, "that they
had to protect themselves and do what they had to do."
On February 18, 1988, Grimm held an orientation
meeting with the new bid drivers. Whittaker, the union
representative, was also present at this meeting. Grimm
gave each of the employees copies of the collective-bar-
gaining agreement and a packet which set forth Re-
spondent's work rules and various guidelines. The packet
consisted of a series of memoranda and other notices
issued by Respondent over the years relating to such
items as safety rules, standards of conduct, radio use and
procedures, and other matters relating to their employ-
ment. Grimm explained these items to the employees as
well as the terms of the collective-bargaining agree-
ment .2 1 Grimm also informed the new bid drivers that
under the terms of the collective-bargaining agreement,
they had to successfully complete a 60-day probationary
period as bid drivers.
Respondent established a new schedule of bid runs in
order to accommodate the addition of the new bid driv-
ers. According to the testimony of Bernard, the new bid
sheet now contained more Saturday runs then it had in
the past. Bernard stated that there were four Saturday
runs previously, and the new list of the bid routes con-
tained six such runs. Bernard testified she expressed her
resentment to Tucker about the fact that there were
more Saturday runs on the bid routes and the new bid
drivers had to go through a 60-day probationary period.
According to Bernard, Tucker replied "that she knew
this would happen if [the employees] joined the Union."
Employee Wonderwheel, one of the on-call drivers
who did not join the Union, testified that she expressed
concern to Cramer about the desirability of the routes
that would be left when so many of the on-call drivers
became bid drivers. Wonderwheel stated Cramer assured
her that she should not be concerned and the remaining
on-call drivers would not be left with "bad runs." When
she continued to express concern, Cramer stated, accord-
ing to Wonderwheel, "don't worry, you're not going to
be left withjust bad runs."
E. The Events -After the Employees Join the Union
The employees began operating the new bid runs on
February 22. Employee Braudon testified that during the
first week of the operation of the newly scheduled bid
routes, Respondent posted a notice to the employees on
the bulletin board. This notice referred to apparent em-
ployee criticism of Respondent 's policies . According to
Braudon 's unrefuted testimony , the notice stated that
21 Grimm stated he developed the packet for the orientation session
because Respondent had never distribuied a complete set of rules relating
to company policy to any of its employees Although the packet was first
given out at the orientation session for the new bid drivers, he stated it
was subsequently distributed to the other bid drivers and to all other non-
bargaining unit employees
727
some of the employees who were critical of Respond-
ent's policies were "sore grapes" and their "hands would
be burned."22
1. The warnings issued to Merrill
On February 27, Grimm issued a written warning to
Merrill for two infractions of Respondent's policies that
occurred on February 25. The warning cited Merrill for
extending her scheduled 11-minute break to 22 minutes
and failing to fill out the passenger count card (record
card) before beginning her break. Since the warning in-
volved two separate violations, it stated that another vio-
lation of Respondent's policy during Merrill's 60-day
probation period would result in the employee's dis-
charge. (See G.C. Exh. 15.)
Merrill testified she finished her run early and, in
accord with standard practice, called Control-1 at the
start of her break .23 Because she was early, Merrill ex-
tended, her break so that she would not be early starting
on the next run. The employee witnesses uniformly testi-
fied that when they were on-call drivers and completed
a run early on their routes, they extended their breaks to
allow them to start the next run on schedule.24 The testi-
mony of the drivers also indicated that they were never
warned or reprimanded about extending breaks in these
circumstances, even though Respondent's dispatch office
was aware that the time was being extended. Merrill and
the employees further testified that when they were on-
call drivers, they filled out the passenger count informa-
tion either at the beginning or at the end of their breaks
Since there was a mechanical counter on the bus, the
employees stated they generally put the information
down before resetting the counter after the completion
of a run. They also stated that even though Respondent
required the drivers to record the passenger count infor-
mation, there were occasions when drivers completely
forgot to put the information on the daily' record card.
When this occurred, either Cramer or Tucker would
circl the card in red and verbally remind the drivers of
the ecessity to record the information on the record
card According to the testimony of the employee wit-
nesses, they were never given written reprimands nor
were employee conversation reports issued for these two
infractions of Respondent's rules.
Grimm testified that on February 25, he passed by Re-
spondent's terminal and noticed a bus was parked with-
out driver being present. He entered the bus and dis-
covered the passenger count information had not been
fille in on'the record card. Merrill then returned to the
bus, and Grimm asked the time that she went on break.
22 Although the notice indicated it was to become a part of the in-
structions to the employees, it was only posted for a period of a week
and was never individually distributed to the employees
23 The standard practice was for the drivers to notify the dispatcher
(Control-1) when they began their breaks and again when they resumed
their runs after the break Thus Respondent's office was aware at all
times of the amount of time the driver spent on breaks
24 The unrefuted testimony establishes that Cramer instructed all driv-
ers to be at least 3 to 4 minutes late in arriving at their scheduled stops
This was for the purpose of insuring that the drivers did not miss any
passengers who might be a few moments late arriving at the pick up
points
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on this information he determined she took a 22-
minute break instead of the scheduled 11 minutes.
Grimm testified Merrill admitted she extended her break
and did not fill out the passenger record before going on
break. According to Grimm, Merrill stated it was cus-
tomary for drivers to extend their breaks on that particu-
lar route but promised not to do it again. Grimm typed
up the warning and gave it to Merrill on February 27.
Merrill testified that when she received the warning
from Grimm, she asked why in the 3-1/2 years that she
had been a driver for Respondent she had never been
given a warning. According to Merrill's unrefuted testi-
mony, Grimm replied that she had never been on proba-
tion before.25
2. The warnings issued to and the termination
of Bernard
During her probationary period as a bid driver Ber-
nard received a series of written warnings and was ulti-
mately discharged by Respondent. The first warning was
issued to Bernard on February 27 and involved an in-
fraction which occurred the prior day. Bernard testified
that on February 26, while she was on break at the
depot, Cramer sat in his truck behind her bus and ob-
served her. Bernard had finished her run early and stated
she extended her break in order not to start the next run
ahead of schedule. According to Bernard, she had done
this on previous occasions while an on-call driver and
had never received any warnings from management. On
this particular occasion, however, Cramer issued a writ-
ten warning to Bernard about an unauthorized extension
of her scheduled break. (G.C. Exh. 12.)
Cramer testified he normally checked the buses at the
depot if he was there when they were parked. He stated
that when he checked the bus Bernard was driving, he
determined from her bus record card that the employee
was extending her break beyond the scheduled time for
that route. According to Cramer, Bernard claimed other
drivers customarily extended their scheduled breaks. He
issued a written warning which was given to Bernard the
following day.
On March 9, Bernard received a second warning for
failing to fill out a mechanical report concerning a defect
on the bus she was operating. Although Cramer was the
management official involved, the warning was issued by
Grimm. (See G.C. Exh. 12.) Bernard testified that when
she pulled into the depot on March 7, Cramer came up
and stated her bus was idling too fast. Bernard testified
she was driving Bus #7 at the time and it was a charac-
teristic of this particular bus that its idle speed would
always increase when the motor became hot.26 The fast
25 Grimm acknowledged on cross-examination that Respondent had
not issued warnings to on-call drivers for taking extended breaks or for
failing to fill in their passenger count cards
26 All of the other driver witnesses also testified that "fast idling" was
a recurring problem with Bus #7 Their testimony indicates that no
matter how many times the bus was sent to Respondent 's mechanical
shop to correct the condition, the problem was never solved Therefore,
this particular defect on Bus #7 was commonly known by both manage-
ment and the drivers, and some drivers would fill out a mechanical
report on the fast idling problem while others did not The testimony
demonstrates, however , that prior to the incident with Bernard , none of
idling was temporarily relieved by adjusting a knob on
the dash of the bus, but it would occur again when the
engine became hot. Cramer made such an adjustment
and Bernard continued on her route. When Bernard
completed her shift for that day and brought the bus into
Respondent's yard, it was idling rapidly again. Bernard
did not file a mechanical defect report on the matter be-
cause it was a common problem with this particular bus.
Cramer had Grimm issue the warning to Bernard be-
cause he (Cramer) was not at the bus yard when Bernard
ended her shift on March 9.
On March 16, Cramer issued an employee-employer
conversation report to Bernard concerning reporting
safety items (G.C. Exh. 12). On this occasion, Bernard's
bus was pulling to the right when the brakes were ap-
plied . Bernard filed a mechanical defect report upon
ending her shift that day. In the conference report
Cramer, however, instructed Bernard to call on the radio
in the future, using the monitor, to report such problems
relating to "safety items" and not to wait until the end of
her shift.
On March 25 (Friday), Bernard called Tucker at Re-
spondent's office and stated she would not be able to
drive her route the next day because of a "family emer-
gency." Bernard did not divulge the nature of the family
emergency but testified that Tucker told her there would
be no problem, and that she would inform Cramer.27
According to Bernard, she asked Tucker to call her if
she could not get someone to cover Bernard's route.
When she did not receive a call from Tucker, Bernard
did not report to work that Saturday.
When Bernard reported to work the following
Monday, she was met by Grimm. Grimm handed her a
final warning notice stating she took a day off without
following the procedures set forth in the collective-bar-
gaining agreement . Grimm also gave Bernard a termina-
tion letter and her final paycheck (see G C. Exh. 12).
3. Tucker's conversations with Wonderwheel
Employee Wonderwheel testified that after the other
on-call drivers joined the Union and became bid drivers,
she spoke with Tucker about the fact that management
was now issuing warnings to the employees. According
to Wonderwheel's unrefuted testimony, she commented
to Tucker that "it looks like they are after a union
driver." Wonderwheel stated that Tucker replied, "it is
not just one." Tucker further stated that she had in-
formed the employees this would happen [if they joined
the Union]. Wonderwheel also testified that during this
conversation she commented that she had noticed that
management was following the drivers on their routes.
According to Wonderwheel, Tucker agreed that man-
agement was in fact doing this., Wonderwheel testified
that in the past, drivers were not followed by manage-
ment while they were on their routes.
the drivers were issued warnings for failure to file a mechanical report on
this problem
27 Bernard stated in her affidavit that she knew she would not be able
to take the time off as a union driver. Therefore, she told Tucker it was a
family emergency although she was going to attend a family wedding
that day
TRANSIT MANAGEMENT SERVICES
IV. CONCLUDING FINDINGS
A. The 8(a)(1) Violations
1. The status of Tucker
A threshold issue to be determined here is whether the
record establishes that Tucker was an agent of Respond-
ent within the meaning of Section 2(13) of the Act. Sec-
tion 2(13) provides that:
In determining whether a person is acting as an
"agent" of another person so as to make such other
person responsible for his acts, the question of
whether specific acts performed were actually au-
thorized or subsequently ratified shall not be con-
trolling.
The Board has long held that where an employer places
an employee in a position where employees could rea-
sonably believe that the employee spoke on behalf of
management, the employer has invested the employee
with apparentle authority to act as the employer's agent,
and the employee's actions are attributable to the em-
ployer. Sears Roebuck De Puerto Rico, 284 NLRB 258
(1987); Corrugated Partitions West, 275 NLRB 894, 900
(1985); Broyhill Co., 210 NLRB 288, 294 (1974), enfd. 514
F.2d 655, 657 (8th Cir. 1975). See also Dentech Corp., 294
NLRB 924 (1989); Einhorn Enterprises, 279 NLRB 576
(1986).
In the instant case Respondent contends that Tucker
was only an hourly paid employee whose duties included
acting as a dispatcher while the dnvers were working.
Respondent further argues that in performing her activi-
ties as dispatcher, Tucker was merely a conduit for dis-
seminating specific instructions, issued to her by manage-
ment, to the drivers. Respondent contends that Tucker
had no authority to grant deviations from those instruc-
tions except under special conditions. In my judgment,
the record here does not support Respondent's conten-
tion and I find that Tucker was indeed cloaked with ap-
parentle authority to speak and act on behalf of Re-
spondent's management in dealing with the employees.
While it is not contended that Tucker was a supervi-
sor, it is apparent that she was viewed by the employees
as speaking and acting for management. Although
Cramer determined the weekly rotation and schedules of
the on-call drivers, it was Tucker who notified the driv-
ers of their work assignments each week. When drivers
were unable to report for their scheduled assigned shifts,
they contacted Respondent's office. If such contact was
made between 8 a.m. and 5 p.m., they invariably spoke
with Tucker. Indeed, the record discloses that drivers
even contacted Tucker at home beyond working hours
concerning matters involving their work assignments
Thus, Grimm found it necessary to issue a memo to the
drivers on March 4, 1987, instructing them to call Re-
spondent's answering service after 5 p.m. and on week-
ends, and not to call Tucker at home. (See G.C. Exh.
3S.)
When standby on-call drivers were needed to fill an
uncovered route assignment, it was generally Tucker
who notified the standbys to report to work. The unre-
729
futed testimony of the employees shows that they also
received their paychecks from either Cramer or Tucker.
As part of her office duties, Tucker also typed some of
the written warnings or employee conversation reports
issued to drivers at various times by Cramer and Grimm.
It is clear, however, that Tucker could not initiate or
sign such warnings or reports on her own. When em-
ployees failed to fill in the passenger count figures on the
daily bus report cards, either Tucker or Cramer circled
the omissions in red and brought it to the attention of the
driver.
When drivers were out on their routes and encoun-
tered problems, either due to traffic or defective equip-
ment, they contacted Control-1 and spoke with Tucker
80 to 90 percent of the time. Tucker was the individual
who granted drivers permission to make deviations on
their routes, skip stops when no passengers were waiting,
and instructed drivers as to what action was to be taken
when there were equipment defects or problems with
their buses. It is the contention of Respondent that
Tucker could only issue such instructions in routine situ-
ations, but when the circumstances were out of the ordi-
nary, she had to confer with Cramer or Grimm. The
record, however, does not demonstrate that Respond-
ent's management, nor Tucker for that matter, ever com-
municated to the employees any such limitations on
Tucker's authority.
Finally, it is apparent that Grimm and Cramer also
considered Tucker to be part of Respondent's manage-
ment. This is significantly reflected in the memo issued
by Grimm to the employees on December 24, 1987,
praising most of them for their performance during the
Christmas traffic. There, Grimm stated, "Management,
all of us, Bob, Wanda, and I want to express a sincere
appreciation to the great majority of you drivers who
have done a good job." (G.C. Exh. 5.)28
Further evidence that Tucker spoke and acted for
management is found in the fact, that Tucker was in sole
charge of Respondent's operation when Grimm and
Cramer were out of town at the same time in November
1987. Although Grimm maintained telephone contact
with Tucker during this period, she was the only repre-
sentative of management on site, to run the operation. It
is also unrefuted that during this time, Tucker made
changes in several work assignments to accommodate
the personal needs of drivers.
Moreover, the undisputed testimony establishes that
both Cramer and Tucker, herself, considered Tucker to
be a voice of management. Thus, when Cramer when
hired Bernard, he told the employee that when she con-
tacted Control-I and Tucker answered, Bernard was to
follow Tucker's instructions. Indeed, Cramer testified
that when Tucker spoke to the drivers over the radio,
her statements carried the same weight as if he had given
the drivers instructions. The unrefuted testimony also es-
tablishes that Tucker considered herself part of manage-
ment. Tucker told Burge that if she had any problems
she should bring them directly', to Tucker and not to
28I reject Grimm's explanation that this was a mere "Figure of
speech " Rather, I find that it is indicative of Respondent's own assess-
ment of the role Tucker played in its operations
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cramer. During this conversation Tucker told the em-
ployee that she was part of management.
In view of all of the above, I find that Respondent
cloaked Tucker with apparent authority to speak and act
as its agent and that the employees reasonably believed
that Tucker's statements represented management's
views. Sears Roebuck de Puerto Rico, supra; Einhorn En-
terprises, supra. Accordingly, I find the record establishes
that Tucker was Respondent's agent within the meaning
of Section 2(13) of the Act.
2. Tucker's conversations with the employees
As noted, Tucker did not testify in this proceeding and
the testimony of the employee witnesses concerning her
actions and statements stands unrefuted in the record.
Thus the record establishes that after Nisson -Joseph told
Tucker, in late November 1987, the employees were
seeking to form an association or join a union , Tucker in-
formed Cramer and began questioning employees about
their union activity . She asked Merrill if Nisson -Joseph
had spoken to Merrill about joining a union. She subse-
quently told Merrill that she did not have to tell Nisson-
Joseph not to speak to Tucker [presumably about the
employees seeking to join a union] . After the employees
joined the Union in January 1988, Tucker told Merrill
that she (Tucker) knew some of the employees had
joined the Union and stated "some shit was going to hit
the fan." Tucker also called Merrill at home and sought
to extract from the employee the names of the drivers
who had joined the Union. She also questioned whether
Merrill had joined the Union.
Similarly, Tucker questioned employee Burge in late
November concerning whether she had heard anything
about the employees joining the Union . Burge was also
questioned by Tucker after the drivers joined the Union
in January . Tucker asked Burge if she had joined and
wanted to know the reason why Tucker also interrogat-
ed Burge about the names of the other employees who
had joined.
The unrefuted testimony also discloses that Tucker
had a conversation with employee Wonderwheel con-
cerning the warning notices issued by management to
employees in February 1988. Wonderwheel commented
that it looked as if management was after a union driver,
and Tucker responded that it was not just one. She
stated that she told the employees this would happen
[presumably if they joined the Union]. Wonderwheel fur-
ther observed that it appeared management was follow-
ing drivers on their routes and Tucker agreed that this
was occurring.
On the basis of the above facts, I find that Tucker's
interrogation of the employees , in November 1987 and
January 1988, about their union activities and the activi-
ties of other employees was in violation of the Act. Al-
though Tucker was not a managerial or supervisory em-
ployee within the meaning of the Act, I have found that
the evidence establishes the employees reasonably be-
lieved Tucker acted on behalf of and reflected the views
of Respondent's management. Tucker's questions called
for and obtained responses. Asociacion Hospital Del Mae-
stro, 272 NLRB 853 (1984). The questions were not di-
no useful purpose other than to determine which em-
ployees were engaging in union activities-including the
employees to whom the questions were directed. In these
circumstances, I find that the Rossmore House29 criteria
has been met; even though the interrogation was not
conducted by the "highest level" of Respondent's man-
agement. Einhorn Enterprises, supra. I further find that
Tucker's comments to Merrill and Wonderwheel, in Jan-
uary and February 1988, threatened the employees with
reprisals for engaging in union activities. Kal Contracting
Co., 284 NLRB 722 (1987). Since Tucker has been found
to be an agent of Respondent, acting on behalf of and re-
flecting its view, this objectionable conduct is imputed to
Respondent. Kal Contracting Co., supra; Einhorn Enter-
prises, supra. I find, therefore, that by the above conduct
Respondent has violated Section 8(a)(1) of the Act.
3. Other 8(a)(1) violations
The complaint alleges in paragraph 7 that on some un-
known date in late February 1988, Grimm and Cramer
threatened employees with unspecified reprisals for en-
gaging in union activities. Examination of the record,
however, fails to reveal any evidence whatsoever which
supports this particular allegation. Therefore, I find that
paragraph 7 of the complaint must be dismissed for want
of proof by the General Counsel.
The complaint further alleges that during the orienta-
tion meeting Grimm held with new bid (union) drivers
on February 25, he threatened to impose greater disci-
pline and more stringent working conditions on the em-
ployees. Considering all of the testimony and evidence
relating to this meeting, I find the record does not pre-
ponderate in favor of the violation the General Counsel
is seeking to establish.
It is unrefuted that Grimm distributed in a single
packet, for the first time, a complete collection of Re-
spondent's rules and regulations governing its work
force. These rules consisted of a collection of memoran-
da issued to the employees over a period of several years
governing safety rules, route procedures, railroad cross-
ing requirements, radio procedures and the like. It is evi-
dent from the testimony that in some instances the sub-
jects of the various memoranda were verbally given to
employees by Cramer when they were hired and in
others, actual copies of the requirements were given out
or posted on Respondent's bulletin board. In addition,
Grimm included a copy of the collective-bargaining
agreement and explained its provisions to the employees
at this meeting.
I credit Grimm's explanation that he chose this oppor-
tunity to collect all of the existing work rules in a single
packet and review them with the new bid drivers. I also
credit Grimm's explanation that since he was not certain
the drivers had copies of the collective-bargaining agree-
ment, he also included that document and reviewed it
with them. At no time was Grimm promulgating or seek-
ing to establish new rules or requirements for the drivers.
It is significant that the union representative was also
present at this meeting and posed no objections to
rected to known or avowed union adherents, and served 29 Rossmore House, 269 NLRB 1176 (1984)
TRANSIT MANAGEMENT SERVICES
Grimm 's comments to these new union employees ; either
to the review of the work rules or to Grimm 's interpreta-
tion of the provisions of the collective -bargaining agree-
ment. Indeed, by his very presence and lack of comment,
it can be said that the union representative gave tacit ap-
proval to Grimm 's comments and his conduct during the
meeting.
It is equally significant that the unrefuted testimony of
Grimm indicates Respondent 's packet of work rules were
subsequently distributed to all of the other drivers, i.e.,
on-call drivers who chose not to join the Union. Thus,
the rules which Grimm distributed on February 25 did
not apply only to union drivers but were equally applica-
ble to Respondent 's entire work force.
Next, the fact that Grimm told the new bid drivers
they were to undergo a period a probation for 60 days
does not demonstrate that he was imposing more strin-
gent working conditions on the new union drivers.
Rather , this requirement was imposed by the collective-
bargaining agreement and Grimm was obligated to
comply with that provision.30 Finally, that Respondent
included more Saturday runs in the bid assignments on
February 25 does not establish that Grimm was retaliat-
ing against the new bid drivers for joining the Union. It
is apparent that the bid schedule had to be rearranged to
accommodate the number of on-call drivers who had
now become bid drivers . The mere fact that Cramer as-
sured Wonderwheel, who remained an on-call driver,
that she would not be hurt by the reassignments does not
demonstrate that the bid schedules were structured in a
discriminatory fashion.
In these circumstances, I find the evidence fails to es-
tablish that during the course of the orientation meeting
on February 25, Respondent sought to retaliate against
the employees for joining the Union . Accordingly, this
allegation of the complaint (par. 8) must be dismissed.
B. The 8(a)(3) Violations
1. The discharge of Nisson-Joseph
On the basis of all the facts contained in the record-
even those in dispute-I find the General Counsel has
presented a prima facie case which establishes that
Nisson-Joseph was discharged for discriminatory reasons.
Prior to her discharge , Nisson-Joseph was considered by
Respondent 's management to be a valued employee. This
is evidence by the fact that in September 1986, she was
permitted to take an extended leave of absence to resolve
a personal problem involving child care for her children.
Nisson-Joseph was cautioned by Cramer in September
1987 not to participate in a passenger 's efforts to get
management to assign drivers permanently to regularly
scheduled routes, and shortly thereafter was issued an
employee-employer conversation report by Cramer.31 In
30 As noted , the union representative voiced no objection when this
was explained to the employees
3' Assuming without deciding whether the conversation report had the
impact of a reprimand, it is relevant here because it was issued shortly
after the warning by Cramer
731
October 1987, Nisson-Joseph was active in the effort to
get on-call drivers to form an employee association or
organize a union in order to be assigned to regular shifts.
Further, that management was made aware of this activi-
ty by Tucker. After Nisson-Joseph's request for time off
on the Saturday after Thanksgiving was denied and she
left a note stating she was going to take the time
anyway, she was required for the first time during her
years of employment to bring a medical excuse upon re-
turning to work . Further, the refusal to grant Nisson-
Joseph permission to make a skip or a route deviation
during the Christmas rush traffic on December 22 and
23, while granting such permission to another driver,
tends to establish that the employee was being singled
out for discriminatory treatment because of her protected
activities . Finally, from the inception of her employment
until the date of her discharge, Nisson-Joseph had never
been issued a formal written warning by Respondent's
management concerning any of the conduct Respondent
now found unsatisfactory.
Thus it is evident, under the Board's Wright Line32
analysis, that the General Counsel has presented a prima
facie case establishing that Nisson-Joseph was terminated
for discriminatory reasons. The burden , therefore, falls
on Respondent to demonstrate by a preponderance of
the credible evidence that Nisson-Joseph would have
been discharged in any event regardless of her protected
activities . I find that Respondent has successfully met
this burden.
As noted , the General Counsel introduced testimony
as "background" concerning conduct and statements by
Cramer and Grimm which occurred beyond the 6-month
statutory limitations period. The purpose being to shed
light on the events in question here and to establish un-
lawful motivation on the part of Respondent . Contrary
to Respondent's contention, testimony for this purpose is
permissible. Machinists Local 1424 (Bryan Mfg.) v.
NLRB, 362 U.S. 411 (1960); Stafford Trucking, 154
NLRB 1309 , 1310 ( 1965). I find, however , that this testi-
mony fails to achieve the purpose sought by the General
Counsel.
Nisson-Joseph testified that in 1984 Cramer polled her
regarding whether she wanted to join the Union and had
her sign a card stating that she did not , Were this all, it
would tend to demonstrate unlawful interrogation of the
employee and animus toward the Union by Respondent's
management . But the evidence discloses that Cramer
polled the employees at the specific request of the Union
to determine how many of the on-call drivers desired to
become members of the Union and, Grimm subsequently
reported these results to the Union. (See R . Exh. 15.)
Similarly, the employee testimony indicates that in
September 1986, Grimm told a group of the on-call driv-
ers they could join the Union and vote it out as the bar-
gaining unit representative. Here again , if this were all, it
would tend to demonstrate Respondent's antipathy
toward the Union in that Grimm was seeking to get the
employees to become members and then decertify the
32 251 NLRB 1083 ( 1980), enfd 662 F 2d 899 (1st Cit. 1981), cert
denied 455 U S 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp , 462 U S 393 (1983).
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union. But the evidence establishes that the conversation
was initiated by the on-call drivers themselves because
they were seeking to get regularly scheduled route as-
signments. When told that this was not possible because
of the collective-bargaining relationship with the Union,
the employees asked Grimm how they could get rid of
the Union. It is in this context that Grimm made his
statement about joining the Union and voting it out. The
fact that he told the employees he would not reimburse
them the initiation fee indicates, in my judgment, that he
was not seeking to encourage the employees to take this
action but, rather, was responding to their question and
expressing an opinion permitted under Section 8(c) of the
Act. It is in this context that I find the background evi-
dence concerning this conversation does not demonstrate
antiunion motivation on the part of Respondent. Indeed,
such a claim is belied by the history of the peaceful col-
lective-bargaining relationship that has existed between
the Respondent and the Union since the time that the
Respondent first recognized the Union in 1981.
Additionally, having observed all of the witnesses
while testifying, I am persuaded that critical portions of
Nisson-Joseph's testimony, in many instances, are not to
be credited. This witness appeared to be willing to em-
bellish and even to fabricate portions of her testimony in
order to aid her own cause. For example, Nisson-Joseph
testified that she did not receive the denial of her request
for the day off on Saturday after Thanksgiving until the
evening of Wednesday, November 25, and that she never
received a telephone call from Grimm on that Wednes-
day asking her to stop by his office when she reported to
work. The notation on the back of Nisson-Joseph's leave
form, however, indicates that Grimm did make a tele-
phone call to Nisson-Joseph requesting that the employ-
ee stop by his office that Wednesday. A further example
of Nisson-Joseph's propensity to withhold or only par-
tially disclose the true facts is found in her denial that
she requested and was refused time off on the Halloween
Saturday in October 1987. I particularly note that while
Nisson-Joseph denied she requested to be off on that day
and threatened not to report to work at all when the re-
quest was denied, she did not deny she was sent home by
Cramer to change to safer driving shoes when she report
to work as scheduled. I find, therefore, that Nisson-Jo-
seph's testimony is to be credited in part and to be con-
sidered unreliable in part. NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950).
Turning to the actual discharge of Nisson-Joseph, I am
of the view that Respondent has met the burden of estab-
lishing that it would have terminated the employee re-
gardless of her protected activities. In so doing, I am not
unmindful of the fact that a claim of a "change in atti-
tude" as justification for a discharge raises a valid suspi-
cion that it is a pretext to mask other (usually discrimina-
tory) motivation. Here, however, I find that Nisson-Jo-
seph's attitude toward her employment did in fact
change and resulted in her termination.
I find, therefore, that it was after Grimm refused to
comply with her request to show a greater potential for
overtime hours on her loan application and described the
employee as "adequate" that Nisson-Joseph began to dis-
play the conduct that made her an unsatisfactory em-
ployee. I also find that the credited testimony establishes
that Nisson-Joseph sought to have a Saturday off in Oc-
tober 1987 and when it was refused, threatened not to
report to work. When she did report to work she wore
spiked heels and had to be sent home to change into
safer driving shoes. I further find that the credited testi-
mony and evidence establishes that when Nisson-Joseph
was denied time off on the Saturday after Thanksgiving,
she informed management that she intended to take the
time in any event by leaving the note on Cramer's door.
Further, she refused Grimm's request to come in the fol-
lowing day to discuss the matter. In these circumstances,
I do not find that Grimm's instruction for the employee
to bring a medical excuse to be unreasonable when it
was determined that she was ill and could not report to
work the two days immediately following Thanksgiving.
Based on her demonstrated hostility and defiance toward
instructions given by management, I find that Nisson-Jo-
seph's claim of harassment, when she was denied a route
deviation and a skip on December 22 and 23, to be the
final incident which resulted in the decision to discharge
the employee.
In light of the above, I find that Respondent's decision
to discharge Nisson-Joseph was the result of a series of
cumulative incidents of unsatisfactory conduct on the
part of the employee. Accordingly, I find Respondent
has met the burden of establishing that Nisson-Joseph
would have been discharged even in the absence of her
known protected activities. It follows, therefore, that Re-
spondent did not violate Section 8(3) and (1) of the Act
when Grimm discharged Nisson-Joseph on December
28, 1987.
2. The warnings issued to Merrill
Although Respondent contends that it was merely en-
forcing its existing policy when Grimm issued the writ-
ten warning to Merrill on February 27, I find, in all of
the circumstances here, that Respondent's contention is
pretextual and the warning was given to the employee
for discriminatory reasons.
The undisputed testimony of the employee witnesses
clearly demonstrates that while Respondent designated
the length the breaks the drivers were to take on each
bus route, management rarely, if ever, issued warnings to
employees who extended the breaks in order not to start
early on their next run.33 Furthermore, it is equally evi-
dent that management was fully aware of the length of
time employees spent on their breaks because they were
required to notify the dispatcher when they began and
ended their break periods. Indeed, Grimm admitted on
cross-examination that warnings were not issued to on-
call drivers for extending their breaks for this purpose
nor were warnings issued to the drivers for failing to
record the passenger count information on their daily bus
record cards. Nonetheless, Grimm issued a warning em-
bracing independent violations of both of these rules to
33 Nor did management issue warnings to the drivers for completing
their runs early, contrary to Cramer's instructions that the drivers were
to run 3 to 4 minutes late at each stop
TRANSIT MANAGEMENT SERVICES
Merrill shortly after the employee became a union-repre-
sented driver.
In my judgment, the issuance of the warning for con-
duct which Respondent had consistently tolerated over a
long period of time from Merrill while she was an on-
call driver graphically demonstrates that the warning
was issued for unlawful reasons, i.e., to permit Respond-
ent to discriminate against the employee in order to dis-
courage membership in the Union. This conclusion is fur-
ther buttressed by Tucker' s statement to Wonderwheel
that Respondent's management was now following the
new bid drivers and was "out to get more than one [of
them]." Nor does the fact that Merrill and the other new
bid drivers were, by virtue of the provision in the collec-
tive-bargaining agreement on probation for 60 days in
any way vitiate the validity of this finding. Respondent
offered no legitimate business reason whatsoever to justi-
fy its now strict enforcement of rules prohibiting con-
duct which it previously condoned over a long period of
time.
Considering the above, I find Respondent has failed to
meet the burden of establishing by a preponderance of
the evidence that the warning issued to Merrill on Feb-
ruary 27 would have been issued in any event even in
the absence of her protected concerted activity. There-
fore, I further find that by issuing the warning to Merrill,
Respondent discriminated against the employee in viola-
tion of 8(a)(3) and (1) of the Act. Gilliam Candy Co., 282
NLRB 624 (1987); La Reina, Inc., 279 NLRB 791 fn. 2
(1986); D & D Distribution Co., 277 NLRB 909 (1985);
Roadway Express, 274 NLRB 357 (1985).
3. The discharge of Bernard
As the record indicates, Bernard was discharged by
Respondent after receiving three warnings for various
violations of Respondent's work rules during her period
of probation as a new bid driver. The first warning,
issued on February 26, involved an unauthorized exten-
sion of her break while on her route-the same infraction
for which Merrill was cited by Grimm. For the reasons
set forth in the discussion involving Merrill, I find that
Respondent has failed to demonstrate that this warning
would have been issued to Bernard even in the absence
of her union activities. Therefore, I find that Respondent
violated Section 8(a)(3) and (1) of the Act by issuing the
warning to Bernard in these circumstances.
The second warning issued to Bernard involved the
failure to submit a mechanical report on the fast idling of
Bus #7 at the end of her shift. I credit the testimony of
the employee witnesses that the fast idling was a. chronic
problem with Bus #7 and the existence of this problem
was well known, not only to the drivers themselves but
also to Respondent's management .34 The credited testi-
a4 In this regard I credit the testimony of employee Burge over the
denial by Cramer that when the employee informed Cramer about the
idling problem with Bus #7 , Cramer indicated that management was
aware of it but the equipment was old and not much could be done to
correct the problem Burge impressed me as a candid and forthright wit-
ness I also note that she was an employee at the time of the hearing and
was testifying against her own employment interests Midwestern Mining,
277 NLRB 221 (1985) See also Resistence Technology, 280 NLRB 1004
(1986).
733
mony of the employee witnesses establishes that some
employees had long considered filling out a mechanical
report on the idling condition for this particular bus to
be futile, since the condition could only be temporarily
corrected by adjusting the idle control knob on the dash
of the bus. Further, that these employees were not cited
by Respondent' s management for failing to fill out such a
report for this particular problem.
Therefore, I find that the second warning issued to
Bernard for failing to write up a mechanical report on
the idling problem with Bus #7 to be another example of
Respondent's strategy to issue warnings to the new bid
drivers. For this reason I find that Respondent has failed
to meet the burden of demonstrating that the second
warning issued to Bernard on March 9 would have been
issued even in the absence of her protected union activi-
ty. It follows therefore that Respondent committed an-
other violation of Section 8(a)(3) and (1) of the Act by
this conduct.
Having found that the first two warnings were discri-
minatorily issued to Bernard, it is evident that the third
warning she received on March 26-which resulted in
her discharge-would have been the first warning given
to the employee had not Respondent engaged in dis-
criminatory conduct.35 I find, however, that the third
warning was also issued to Bernard for reasons which
violated the Act.
The credited testimony indicates that Bernard called
Respondent's office and notified Tucker that she had a
family emergency and would not report to work the fol-
lowing day.36 This testimony demonstrates that Bernard
complied with the requirements of the collective-bargain-
ing agreement by giving Respondent more than the re-
quired 2 hours' notice of her intention to be absent from
work. Further, the testimony also establishes that when
the new bid drivers were on-call drivers, there were a
number of instances when the employees failed to give
the required notice, or any notice at all, when they did
not report to work. With the exception of a single em-
ployee who was a chronic offender, the employees were
neither reprimanded or issued warnings by Respondent's
management . Indeed, Grimm acknowledged that he only
fired one employee for this infraction of Respondent's
rules.
In these circumstances, I find the final warning and
the discharge of Bernard was discriminatorily motivated
as I do not deem it necessary to determine whether the employer-em-
ployee conversation report in fact constituted a warning. It is clear that
under Respondent's own procedures, this report did not affect the em-
ployment status of the employees.
as Contrary to the urging of Respondent, I find that Bernard was a
truthful witness even though her testimony was confused in part by her
inability to accurately recall dates Also, while it is apparent that Bernard
stated at an unemployment compensation board hearing that she wanted
to get the time off to visit an ill aunt and told the Board in her affidavit
that she wanted to attend a family wedding, I find her explanation that
she did both to be truthful I further note that at the time Bernard placed
the call to Respondent's office she did not state, nor was she asked, the
nature of the family emergency for which she was seeking time off
Therefore, there is no evidence that the employee lied to Tucker when
she informed the dispatcher that she would not be to work the following
day. Nor was Bernard discharged by Respondent for failing to reveal the
nature of the family emergency
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since Respondent had a practice of repeatedly condoning
similar conduct by the drivers when they were not rep-
resented by the Union. La Reina, Inc., supra; D & D Dis-
tribution Co., supra; Roadway Express, supra. According-
ly, I find Respondent has failed to meet the burden of
establishing that Bernard would have been issued the
final warning on March 26 and discharged on that date
even in the absence of her protected union activities. It
follows, therefore, by this conduct Respondent violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent , K & G Bus Transportation Services,
Inc., d/b/a Transit Management Services , is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge 115, Local
Lodge 1596, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unlawfully interrogating employees concerning
their union activities and sympathies and the union ac-
tivities and sympathies of other employees , Respondent
has violated Section 8(a)(1) of the Act.
4. By threatening employees with reprisals for engag-
ing in union activities, Respondent has violated Section
8(a)(1) of the Act.
5. Respondent did not threaten employees , in late Feb-
ruary 1988, with reprisals for engaging in union activi-
ties.
6. Respondent did not threaten, on February 25, 1988,
to impose more stringent working conditions and greater
discipline on union-represented employees.
7. Respondent did not violate Section 8(a)(3) and (1)
of the Act by discharging employee Melody Nisson-
Joseph on December 28, 1987.
8. By issuing warnings to employees who joined the
Union in January 1988 for engaging in conduct which
Respondent previously condoned when the employees
were not represented by the Union, Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
9. By discharging employee Phyllis Bernard on March
26 for discriminatory reasons, Respondent has violated
Section 8(3) and (1) of the Act.
10. The above unfair labor practices affect commence
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices violating Section 8(a)(1) and (3) of the
Act, it shall be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having further found that Respondent discriminatorily
discharged employee Phyllis Bernard on March 26, 1988,
Respondent shall be ordered to offer this employee im-
mediate and full reinstatement to her former position or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other
rights and privileges. Respondent shall also make Phyllis
Bernard whole for any loss of earnings and other benefits
she may have suffered as a result of the discrimination
against her. In addition, having found that Respondent
discriminatorily issued disciplinary warnings to employee
Connie Merrill on February 27, 1988, and to employee
Phyllis Bernard on February 27, March 9, and March 26,
1988, Respondent shall expunge from their employment
records all documents relating to the unlawful discipli-
nary warnings issued to these employees and notify each
of the employees, in writing, that this has been done. All
backpay herein shall be computed in the manner set in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). 37
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed38
ORDER
The Respondent, K & G Bus Transportation Services,
Inc., d/b/a Transit Management Services, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Unlawfully interrogating employees about their
union activities and sympathies and the union activities
and sympathies of other employees.
(b) Threatening employees with reprisals for engaging
in union activities.
(c) Issuing warnings to employees who become repre-
sented by the Union for engaging in conduct which Re-
spondent's management condoned when the employees
were not represented by the Union.
(d) Discharging employees as a result of warnings dis-
criminatorily given to them for engaging in conduct
which Respondent previously condoned when the em-
ployees were not represented by the Union.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necesary to ef-
fectuate the policies of the Act.
(a) Offer employee Phyllis Bernard immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed. In` addition, make this employee
whole, in the manner set forth in the section of this De-
cision entitled "The Remedy," for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her. Further, expunge all documents relating
to the unlawful discharge and the unlawful disciplinary
warnings given to employees Phyllis Bernard and Connie
Merrill and notify these employees, in writing, that this
has been done and evidence of the unlawful warnings
and discharge will not be used as a basis for future per-
sonnel action against them.
37 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
$8 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
TRANSIT MANAGEMENT SERVICES
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due and compli-
ance with the terms of this Order.
(c) Post at its Petaluma, California facility copies of
the attached notice marked "Appendix."39 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
39 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
735
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT unlawfully interrogate you about your
union activities or sentiments or the union activities or
sentiments of other employees.
WE WILL NOT threaten you with reprisals for joining
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 115, Local Lodge
1596, or any other labor organization, or for engaging in
activities on behalf of the above Union or any other
labor organization.
WE WILL NOT issue warnings to employees represent-
ed by the above Union for engaging in conduct which
we previously condoned when the employees were not
represented by the Union.
WE WILL NOT discharge employees as a result of
warnings issued to them for engaging in conduct which
we previously condoned when the employees were not
represented by the above Union.
WE WILL NOT in any like manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the National Labor Relations Act.
WE WILL offer full reinstatement to Phyllis Bernard to
her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges, and WE WILL
make her whole for any loss of earnings and other bene-
fits she may have suffered because of our discrimination
against her, plus interest.
WE WILL expunge from our files and records all refer-
ences to the disciplinary warnings given to Connie Mer-
rill and Phyllis Bernard as well as all reference to the
discharge of Phyllis Bernard on March 26, 1988, and WE
WILL notify these employees, in writing, that this has
been done and that the evidence of these unlawful ac-
tions will not be used in any manner as a basis of future
personnel action against them.
K & G Bus TRANSPORTATION SERVICES,
INC., D/B/A TRANSIT MANAGEMENT SERV-
ICES