Gray Line Tours,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1361 (N.L.R.B. 1981)

GRAY LINE TOURS
Music City Services, Inc. d/b/a Gray Line Tours
and Mike Harrell. Case 26-CA-8409
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 20, 1981, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and
to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Music City
Services, Inc. d/b/a Gray Line Tours, Nashville,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
'The Respondent has excepted to certain credibility findings made hb
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Drn 1'all Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no hasis for reversing her find-
ing,.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise
punish you because you have engaged in con-
certed activities for mutual aid and protection.
WE WlI.l. NOT discharge you, or otherwise
discriminate in regard to your hire or tenure of
employment or any term or condition of em-
ployment, to discourage membership in the
Amalgamated Transit Union or any other
union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights under the National
Labor Relations Act.
WE WIL. offer Mike Harrell reinstatement
to the job of which he was unlawfully de-
prived or, if such a job no longer exists, a sub-
stantially equivalent job, without prejudice to
his seniority or other rights and privileges pre-
viously enjoyed, and make him whole, with in-
terest, for any loss of pay he may have suf-
fered by reason of his discharge.
MUSIC CITY SERVICES, INC. D/B/A
GRAY LINE TOURS
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard before me in Nashville, Tennessee,
on November 24 and 25, 1980, pursuant to a charge filed
on April 28, 1980, an amended charge filed on May 30,
1980, and a complaint issued on June 20. 1980. The issue
presented is whether Respondent Music City Services.
Inc. d/b/a Gray Line Tours violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended
(herein the Act), by discharging employee Mike Harrell
because of his protected activities and his activities on
behalf of the Amalgamated Transit Union (herein the
Union).
On the basis of the entire record, including the demea-
nor of the witnesses. and after due consideration of the
briefs filed by Respondent and by counsel for the Gener-
a! Counsel. I hereby make the following:
258 NLRB No. 187
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISI)ICTION
Respondent is a corporation with an office and place
of business in Nashville, Tennessee, where it is engaged
in the tourist business. Respondent receives at this facili-
ty products, goods, and materials valued in excess of
$50,000 annually directly from points outside the State of
Tennessee. Respondent's annual gross revenues from the
foregoing operations exceed $500,000. I find that, as Re-
spondent concedes, Respondent is engaged in commerce
within the meaning of the Act, and that assertion of ju-
risdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning
of the Act.
11. THE AllF-lGED UNFAIR LABOR PRACTICE
A. Sequence of Events Through Harrell's Discharge
1. Background
Respondent was founded about 1973 by a Greyhound
bus driver, David Spikes, who had been president of the
local Greyhound union. Initially, all the shares were held
by Spikes, his wife, and their son. About 1976, the Spikes
family conveyed their stock to F. W. Bass, Jr., David
Spikes' son-in-law, who so far as the record shows has
never had any union affiliation. No petition for certifica-
tion has been filed regarding Respondent's employees
since at least November 1979, and there is no evidence
that such a petition was filed at any time. At the time of
the events giving rise to this case, Respondent's employ-
ees were not organized, and Respondent was not a party
to any collective-bargaining agreement. Executive Vice
President Richard Hodges, who is Respondent's princi-
pal operating officer in both Nashville and Memphis, tes-
tified that he had learned, mostly through "general con-
versation," that about 50 to 60 percent of Respondent's
work force are members of a union. He further testified
that he was unaware that any union organizing attempts
had ever been made at Respondent's operation. I do not
accept Hodges' disavowals, in view of his remarks, dis-
cussed infra, to two other members of management a few
days before Mike Harrell's discharge.
2. Harrell's union activity and Respondent's
reaction thereto
Respondent hired Harrell as a driver and tour guide in
mid-February 1978. On June 15, 1979, in an effort to or-
ganize a union at Respondent's Nashville operation, Har-
rell and another of Respondent's drivers (later dis-
charged, for reasons not shown by the record) got in
touch with Bud Seagraft, president of one of the Union's
affiliated locals, who instructed Harrell to obtain the
names and addresses of Respondent's full-time drivers.
Thereafter, Harrell gave this information to Seagraft,
who said that he would pursue the matter, and Harrell
should continue to do his job as well as he could and let
Seagraft handle the organizing as soon as he could get to
it. Seagraft failed to get in touch with any of the drivers
whose names Harrell had given him. Then. Harrell, on
various occasions until his termination on April 25, 1980,
told each of the full-time drivers that Harrell favored a
union at Respondent's Nashville establishment, and that a
union was needed for employee protection and company
benefits. In April 1980, before his April 25 discharge,
Harrell signed a union card at the union office in the
presence of Seagraft and someone on the Union's staff;
no other employees of Respondent were present. Harrell
never got any other union card signed, never wore any
union paraphernalia, and never engaged in any handbill-
ing. He characterized his union activities since June 1979
as "low profile."
Harrell's immediate supervisor was Operations Man-
ager Connie Kay, who reported to Hodges and to Vice
President Lonnie Hoover, Hodges' subordinate. On
either Friday, April 18, or Tuesday, April 22, 1980,
about 3:30 p.m., Kathy Baucom Tinkham, Respondent's
sales agent, received from a customer a telephoned in-
quiry calling for information from a consolidated air tour
manual which was then on the desk of Darlene Hancock,
Hodges' secretary. Tinkham asked the customer to hold
the phone, and went over to Hancock's desk, where she
was not sitting at the time, in order to find the manual.
Tinkham's desk was 10 or 12 feet from Hodges' office,
but Hancock's desk was in front of that office. At this
time, Hodges' office door was slightly ajar, and while
looking for the manual, Tinkham was able to see into the
office and overhear what was being said there. She heard
Hodges tell Kay, in Hoover's presence, that Kay should
find a reason to get rid of Mike Harrell because of the
Union. Immediately after hearing Hodges make this
remark, Tinkham found the book she was looking for
and returned to her desk to resume her telephone con-
versation with the customer.
My findings in the foregoing paragraph as to the sub-
stance of what happened are based on Tinkham's testi-
mony. Tinkham's prehearing affidavit gave April 22 as
the date of this conversation. On direct examination, she
testified that it occurred "about three or four days
before" Harrell's April 25 discharge; and on cross-exami-
nation, she testified that the conversation occurred
"Somewhere about, I think, anywhere from a week
before." Because Hodges testified that the only days
within this April 18-22 time frame when he, Hoover,
and Kay were all scheduled to be in the office were
April 18 and 22, I find that the conversation occurred on
one of these two dates. Kay denied being present at a
meeting with Hodges and Hoover about April 22 at 3:30
in the afternoon where Hodges made such a statement.
Hodges denied ever making such a statement to Kay
about 3:30 p.m. in Hoover's presence. Hoover denied
that Hodges ever made such a statement in Hoover's
presence. Further, Hodges testified, although without
corroboration, that he left the office about noon on April
22 in order to mow his lawn, was not in the office at
3:30 p.m., and returned to the office at an undisclosed
later hour to attend a 7 p.m. drivers' meeting.' However,
'Hodge,, tcstiied that he had taken a relatisely long time to mow his
lawn on April 22 because his lanli was "almost like ha) field," his la'n
moub.er gtl stLack in a ditch. and his father had Ii come over Io drag the
mower out olf the ditch ith his car the ounrger lodges b.as not asked
rhs he seals tIlahle to drig th eio er out ilh his .o n car
1362
GRAY LINE TOURS
as shown infra (see sec. II,B,3), the cold record estab-
lishes them to be unreliable witnesses in other respects.
Moreover, Tinkham was essentially a disinterested wit-
ness who was a mere acquaintance of Harrell, was not
shown to have engaged in any union activity, and no
longer worked for Respondent. 2
3. Harrell's report to Owner Bass that the drivers
believed a supervisor was endangering their safety
During a 2-week period prior to April 23, 1980, but
whose dates are not otherwise disclosed by the record,
Vice President Hoover had driven a company car to and
from work, and parked it in the company parking lot
next to the main office, without a gas cap. At one point
during this period, Hoover stuffed paper towels into the
nozzle of the gas tank to prevent the escape of gasoline
fumes. On several occasions, Harrell discussed Hoover's
conduct in this respect with other drivers, who said that
they were afraid the car "was going to blow sky high"
and injure them.
The complaint alleges, and the answer admits, that at
all material times F. M. Bass, Jr., is and has been Re-
spondent's owner, supervisor, and agent. Early in the
morning on April 23, 1980, while Harrell was fueling a
bus in front of Respondent's office, Bass approached him
and asked how things were going. Harrell replied, "I
may be fired for telling you this, but I happen to love
this job, and I hate to see anything happen to this com-
pany." Bass said, "I hate to see anything happen to the
company too because this company is all I have." Then,
Harrell said, without mentioning Hoover's name, that the
drivers and the mechanics "share a common disrespect
for" a particular person in a management position, and
that "due to his management practices and his ineptness,
these drivers even fear for their own safety." Still with-
out mentioning Hoover's name, Bass said that he was
aware of the situation, but was not aware of the fact that
the member of management whom Harrell was com-
plaining about was generally disrespected by all of the
drivers.
Thereafter, and before Harrell's discharge, Bass told
Hodges that Harrell had inquired what was to be done
with a supervisor who had absolutely no respect from
any of the employees, and whom everybody disliked so
much that Harrell feared for his safety. Bass further told
Hodges that in Bass' opinion, Harrell was referring to
Hoover, who is Hodges' immediate subordinate.
4. Events during the last 2 days of Harrell's
employment
On April 24, the day after his conversation with Bass,
Harrell was assigned to bus 117. After starting on his
tour, he noticed that the right turn indicator flashed un-
interruptedly except when he turned the left-turn indica-
tor. He reported this by radio or telephone to Hodges,
who said that he would send out a mechanic to repair
2 She gave her prehearing affidavit about the incident to a Board inves-
tigator before an argument with Sales Manager Jan Hodges (Richard
Hodges' wife) caused Tinkham to quit, and before she went on a vacation
with a friend of hers. whom Respondent had discharged
the turn signals.3 Mechanic Peter Baker did come out to
try to make the repair, but he said that he could not
make a permanent repair without taking the bus back to
the shop. All he did at the time was to patch in a tempo-
rary unit that had to be held in Harrell's lap while he
drove. When Harrell radioed Hodges about Baker's ef-
forts to repair the bus, Hodges told Harrell to continue
the tour and do the best he could, and said that the turn
signals would be permanently repaired once the bus
completed the tour. Harrell did so.4
On the following morning, three drivers, including
Harrell, were scheduled to conduct the "Discover Music
City" tour, the only morning tour regularly scheduled by
Respondent at that time of year. Each of these drivers
was given a list of passengers to be picked up from their
hotels and taken to Respondent's office to buy their tick-
ets and board a bus or van to take them on the tour.
Harrell was again assigned to bus 117, the bus he had
driven the previous day. As he pulled away to make his
pickups, he noticed that the turn signals were malfunc-
tioning in the same way they had malfunctioned the pre-
vious day. In addition, he noticed that the heat, which he
had not used the previous day because it had been a
warm day, was not working.5 Harrell had previously ini-
tiated a practice, adopted by most of the drivers, of ra-
dioing into the office for a "radio check" to make sure
that the radio was working. He used the radio to advise
Kay of the malfunctioning turn signals and heat. Such
radio messages are automatically received in all of Re-
spondent's buses within a range of 60 or 70 miles. An-
other driver thereupon radioed in that he had had bus
117 out the night before (when, according to Harrell's
credible testimony, it "turned off cool"), and that the
heat did not work that night either. Kay told Harrell to
do the best he could, and said that Respondent would
try to fix the bus when he got back to the office.6
' Harrell's prehearing affidavit states that he got in touch with Hodges
Harrell testified that "as I recall. I talked to Connie Kav" However.
April 24 was a Thursday, and Kay does not work on Thursdays.
' My findings in this paragraph are based on credible parts of Harrell's
testimony. For demeanor reasons and because of the considerations dis-
cussed. infra I do not accept Hodges' testimony that this incident never
took place.
' On cross-examination, but not direct examination. Harrell testified
that he advised Kay, Hodges. and Hoover of these deficiencies, and of
the absence of road hazard signs. after he fueled bus 117 that morning
and before he left to make his pickups. Respondent's fueling records that
day fail to show that fuel was added to bus 117. Although Hoover was
niot asked about the matter, I nonetheless accept Kay's denial. partly cor-
roborated by Hodges that this conversation took place.
6 My findings as to the radio conversation are based on Harrell's testi-
mony. On direct examination. Kay denied having any conversation with
Harrell while he was making his pickups that morning. However. on
cross-examination she could not recall whether Harrell made a "radio
check" that morning, or what he said during any such check that was
made
Respondent. in effect. contended at the hearing that Harrell's testinmony
regarding the rejoinder by another driver is impeached by the failure of
the "trip schedule sheet" for the previous day to show that an' driver
other than Harrell drove bus 117. The trip schedule sheet sho., that a
driver whose first or last name was David was scheduled to make some
runs between the airport and two motels a t :0 and 9-48 p.m. that ee-
ning. While It is true that David was scheduled to use another bus on
these runs. the record fails to show Ihat the schedule would necessarily
hase reflected a last-minute evening time change in buses for mechanical
or other rasons, or a last-minute addition lo the schedule aid therebs Ito
the buses in perationl
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After making his pickups, Harrell drove to the termi-
nal and parked his bus. He told the passengers that they
should purchase their tickets at the outside ticket
window, that they would be told at the window which
vehicle to board for their tour, and that they should then
go to the vehicle to which they had been assigned. After
the passengers had left the bus and gone to the ticket
window, Harrell went inside and told Kay that the turn
signals were defective, that there was no heat on the bus,
and that both he and the passengers were uncomfort-
able. 7 Then he returned to bus 117, which has a nominal
capacity of 53 passengers (see infra, fn. 8), and stood at
the door. As each passenger tendered his ticket, Harrell
tore off the stub, returned it to the passenger, and per-
mitted him to board the bus. After concluding that the
bus was loaded, from "visual examination" but without
actually counting the passengers, 8 Harrell took the tick-
ets into the office, counted 50 or 51 tickets, put them
into an envelope, entered the number of tickets on the
ticket envelope, turned it into the office, and left on the
morning tour. During this tour, several passengers com-
plained to Harrell that the bus was too cold, and a pas-
senger at the front of the bus remarked to Harrell about
the malfunctioning turn signals.
After completing the morning tour, which ended at I
p.m., Harrell discharged the passengers who had taken
that tour. Then, Harrell returned to the office, where he
noticed for the first time that because one of the other
tour drivers had been discharged that morning, Respond-
ent had changed Harrell's schedule for that day so as to
require him to give an afternoon tour, for which he was
to use bus 117. Harrell obtained a list of passengers to be
picked up for an afternoon tour, picked them up,
brought them back to the terminal in his bus, parked the
bus, and told them to buy their tickets at the outside
ticket counter and then go to the vehicle to which they
were assigned at the ticket window.9 Then he went into
the office, where he encountered Hoover. Hoover asked
Harrell, within earshot of Kay and Hodges, how the
morning tour had gone. Harrell replied that the bus was
"just freezing," that the passengers had "bitterly com-
plained" to him about Respondent's service because the
bus was too cold, and that he himself had been very
cold. However, he said nothing about the turn signals."'
Hoover said that Harrell should have told some warm
jokes to warm the people up. Harrell replied that warm
jokes did not warm up passengers who were on cold
' This finding is based on Harrell's testimony. For demealnor reasons. I
do not accept Kay's denial.
'The bus has bench type rather than individual seats he back seat is
very long, and can accommodate as few as three or as many as six
people, depending on their size.
" Respondent's trip schedule indicates that only bus 117 as scheduled
to take a tour at that hour.
"' My findings ill these two sentences are based on a comnposite of
credible portions (iof the testimnony of Harrell, Hoover, Hodges, and Kay.
For demeanor reasons. I do not accept Hodges' uncorroborated testirno-
ny that Harrell spoke in a "very loud, angry fashionl." or Hoovler's uncoIr-
roborated estimony that he said he had been on the bus earlier that
morning and had not fouund it to be cold (cf. infru. sec 11.13.3). Because
Harrell was somewhat uncertain in his testimony that he nleltioned the
turn signals, because Hodges did not testify that his check of the bus im-
mediately following Harrell's remarks included the turn signals. and he-
cause neither Hodges nor Hoover testified that HIarrell referred to the
turn signals. I credit Kay's tesimnion that lie did 1not
buses. Then, Hodges went out to the bus. The outside
temperature that morning, while the 10 a.m. tour was
taking place, had been in the low to mid forties, but by
the time Hodges inspected the bus at about 1:30 p.m., the
outside temperature was at least 48 degrees and, prob-
ably, a little higher. " The bus was standing with the heat
on and the doors open, and some passengers who had al-
ready bought their tickets for the afternoon tour were
sitting inside. Hodges got on the bus, and saw two
women taking off their sweaters. He picked up the mi-
crophone, introduced himself as the company manager,
and "just in a general way" asked the passengers how
they liked Nashville, whether any of them had ever been
there before, and whether everything was going all right
with the beginning of the tour. Hodges testified that
"Everybody was in a great mood" and asked when the
tour was going to start.
Hodges then returned to the office told Harrell what
had happened when Hodges had got on the bus, and ex-
pressed the opinion that if the passengers had thought
the bus was too cold they would have told him so. 2
Hodges further said that he was tired of Harrell's "over-
exaggerating the condition of company equipment," and
that if he continued to do this, "then you can find your-
self another job." Harrell said, "Well, am I to take this to
mean that I'm terminated?" Hodges paused for 3 to 5
seconds, and then said yes. Harrell asked Hodges for a
termination slip. The two walked back toward Hodges'
office. En route, they encountered owner Bass. Harrell
told Bass, "I'd like to talk to you sometime." Before Bass
could say anything, Hodges interrupted and said, "And
that's another thing. I don't appreciate you going over
my head in discussing these problems."3
Hodges then went into his office and came out with a
filled-out termination slip which he gave to Harrell. Har-
rell remarked that the termination slip contained no
reason for termination and asked why he had been termi-
nated. Hodges replied, "over-exaggeration of a problem
that didn't exist." Harrell then asked for the approxi-
mately 2 weeks' pay due him. Hodges said that he would
be paid on the regularly scheduled payday, which was
several days later. Harrell, who lived 55 miles away
from Respondent's office, pointed out that he would not
be at the office on the regularly scheduled payday.
Hodges adhered to his refusal to pay Harrell immediate-
ly. Then, Hodges asked Harrell to turn in whatever com-
pany equipment he might have. Harrell replied that all
he had was some arm patches, and Hodges told him not
to worry about them. Harrell then walked out the door,
"' At 12:52 p m that day, about 4() minutes before Hodges' inspectinl.
the airport temperature was 4 degrees. Respondent's office is ill down-
tos n Nashville.
' This finding is hased oti Ka;'s testimony, substantially corroborated
by the other witnesses Kay's summary of the incident. on the back of
Harrell's attendance sheet, attributes to Hodges the report "that it was
not that cold" (see infJr, fin. 14).
: My findings as to Hodges' remarks to Harrell in Bass' presence im-
mediately after Harrell's discharge are based ,on Harrell's testimony.
Hodges testified that he old H;arrell. "ihal's anoiher problem that you
have. You have beenl previously warned [about] the proper chain of com-
manld. and nlot to by-pass your . . . supervisors iI complaining to the
oi0 ner." F'or demeanor reasons, I am inclined to accept Harrell's sersion.
but I do 1not tlik the differetce is material See illitfr sec IID
1364
GRAY LINE TOURS
and was about to get into his car when Hodges came out
and asked for Harrell's bus keys, which Hodges had as-
sumed would be turned in by Harrell to Kay on his way
out, and which Harrell had forgotten about because of
the "shock of the situation." Harrell returned the keys to
Hodges and drove off.
Maintenance Supervisor William E. Milam credibly
testified that between March 15 and the end of April
1980 he checked the heating and cooling systems on all
of Respondent's buses, including the bus 117 gradustat
(which controls the amount of heat and air-conditioning
on the bus) and (inferentially) the gradustats of all other
buses which had them. He could not recall whether bus
117 was checked before or after Harrell's April 25 dis-
charge, nor could Milam recall whether or not he was
specifically asked to check that particular bus. Milam
further credibly testified that in the spring of 1980 he did
not have to repair either the heating or the air-condition-
ing system on that bus; he was not asked whether he re-
paired the heating (or the air-conditioning) system on
that bus at any time before his late November 1980 testi-
mony. On that bus, the driver can change the ventilating
system between air-conditioning and heat by means of a
toggle switch, but cannot otherwise change the tempera-
ture itself, which is controlled by the gradustat.
My findings regarding the malfunctioning of the bus
117 turn signals on April 24 and 25, 1980, are based on
Harrell's testimony. In contending that the turn signals
were in fact working properly on those 2 days, Respond-
ent heavily relies on the testimony of Maintenance Su-
pervisor Milam, who credibly testified that between
April 19, 1980 (when he replaced the turn signal lever,
which had been broken, and rewired the flasher system;
see infra, sec. II,B,2,f), and about early November 1980,
he was unaware of any repairs which may have been
made to the turn signal indicators on bus 117. As to re-
pairs made by the one to four mechanics under his direc-
tion, Milam relied to a significant extent on whether
drivers had made written notations regarding the need
for such repairs, and on whether Respondent's records
indicated that parts had been ordered. However, Milam
testified that sometimes drivers fail to report the need for
such repairs or make only oral reports: that during this
period he himself sometimes did not make a written
record of a repair which did not necessitate the installa-
tion of a new part; and that Milam might not know
about a minor repair, such as repairing a stuck switch,
made by another mechanic without replacing a part. In
view of these limitations on Milam's ability to know
whether the kind of defect described by Harrell was put
to rights after Milam's own April 19 repairs; in view of
Harrell's credible testimony that when he returned to the
office on April 24 he did not prepare a card regarding
the malfunctioning turn signals because Hodges had told
him they would be repaired once the bus completed the
tour; and for demeanor reasons, I credit Harrell's testi-
mony that the turn signals malfunctioned on April 24
and 25.
B. Reasons Given by Hodges for Discharging Harrell
Executive Vice President Hodges testified to a number
of different reasons why he decided to discharge Harrell.
Among those reasons were Harrell's April 25 "over-ex-
aggeration" of the coldness of his tour bus and his action
in "by-passing the chain of command" by complaining to
owner Bass, rather than to Hodges, about the conduct of
Vice President Hoover, Hodges' immediate subordinate.
These reasons are discussed infra, in section II,D. The
other reasons are discussed infra in this section II,B.
1. Harrell's alleged failure to wear a proper uniform
Hodges testified that Harrell was discharged partly be-
cause "I was aware that he had received both written
and verbal reprimands in the past concerning wearing
the proper uniform." Kay testified that in January 1980,
she verbally warned Harrell to wear "his Gray Line uni-
form" every day while on duty. Hodges testified that he
warned Harrell several times about not wearing "the
proper uniform." Kay's testimony is supported by a nota-
tion on the back of Harrell's attendance record," and I
accept her testimony over Harrell's testimony that he
never received any verbal warnings about "company uni-
form"; but as to Hodges' alleged verbal warnings I
accept Harrell's testimony in view of the absence of
record support for Hodges' testimony that Hat rell re-
ceived more than one written warning.
The only written warning which Harrell ever received
was dated March 10, 1980.'5 The first page of the docu-
ment is a memorandum from Kay to Harrell which
states:
Please refer to the following copies of memos.
On Friday, March 7, 1980, you were in violation of
all three.
The bus was not cleaned out, locked and com-
missions from the Sheraton Downtown [see infra]
were found on the bus . . . it is imperative that
these rules and all others must be followed. Repeat-
ed failure to do so, will result in disciplinary action!
Attached to this memorandum to Harrell were three
memorandums, which had been either sent to all the
drivers or posted on the bulletin board. One of these di-
rected all the drivers to clean out their buses after finish-
ing with them, and another directed all the drivers to
lock their buses after finishing with them. The third
stated, inter alia:
Of the rules and regulations that Gray Line has,
the one least enforced is the fact that everyone is to
be in company uniform while on the job . . . it has
become necessary to strictly enforce this rule....
If some of you choose to continue to wear a suit
and tie, this s fine as long as you have permanent
patches on your coat and shirt.
If for some reason you still do not have a uni-
form, please see Terry Pugh [otherwise unidentified
in the record] as soon as possible to order one. I
' Kay somnetimec used the hack of an emploece's attendance record to
make personal notltions of incidents involving him or f explanatinls re-
gardilng h, ttlclndance
' Io, esver. Kay did n t adopt ulil December 1979 the plic! f lu-
ing r ctnL s% rrlnigs
1365
DECISIONS OF NATIONAL LABOR RELATIONS O()ARI)
cannot stress enough to you the importance of
being in uniform at all times.
Please be advised that you will not be permitted
to work unless you do have the proper uniform!
Hodges testified that during the period material here,
Respondent did not provide uniforms for its drivers. He
further testified that the drivers were "required" to wear
Gray Line identification, that "With the identification is
generally a name badge also," that "We have Gray Line
badges and logos that we want them to wear consistently
and regularly," and that "I think we asked them" to
wear a blue shirt (elsewhere, he said a blue or white
shirt) and blue pants. Kay testified that drivers were re-
quired to wear "appropriate attire [which] we . . . pick
out for them, but the main thing is that they have proper
identification"; she mentioned sew-on patches but not
badges. Hodges testified that Harrell had failed to
comply with the "uniform" requirement about once a
week during the entire 14 months of his employment.
Kay testified that management would probably have
overlooked such noncompliance if it had occurred only
once every week or two.
The March 10 warning to Harrell was directed to one
occasion where he had left a bus unlocked and in a dirty
condition, and had also left on the bus initialed envelope
stubs showing that the Sheraton Downtown desk clerks
had received commissions, delivered to them by Re-
spondent's drivers, for booking tours through Respond-
ent. ' There is no testimony that Harrell was discharged
for these reasons. After Harrell received the warning
notice, he told Kay that he was sorry this had happened,
and assured her that it would never happen again. There
is no evidence that it ever did.
2. Harrell's alleged damage to company equipment
Hodges further testified that Harrell was discharged
partly because he damaged company equipment on six
separate occasions, which are discussed below. Mainte-
nance mechanic Milam testified that he thought, but was
not sure, that taking into account how long Harrell had
worked for Respondent as a driver, he had more acci-
dents than other employees; as found infra section
lI,B,2,a, Milam attributed to Harrell one accident, to bus
128, which occurred before Harrell started working for
Respondent. Harrell never received any traffic tickets in
connection with any of these incidents. Hodges testified
that as far as he knew, they caused no personal injuries,
and there is no evidence suggesting that any such injuries
were inflicted.
a. Damage to bus 128
Hodges testified that on a date in 1979 which he could
not recall, Harrell broke out the rear tail lights of bus
128 by backing it into a wall in the company parking lot.
Hodges' testimony fails to show whether he was claim-
ing that he actually saw this incident. Milam testified
that mechanic Baker, who still works for Respondent but
did not testify, reported such an incident to him about
1' Kay testified that onre of these envelopes had cash in it. For demea-
nor reasons. I accept Harrell's denial.
mid-January 1979. Milam further testified that the
damage consisted of one broken tail light lens, and that
the repair cost about $48 including labor. Milam denied
discussing this incident with Harrell.
Because the date to which Milam attached this inci-
dent was a date before Harrell started working for Re-
spondent, and because Hodges did not attach a later
date, I accept Harrell's denial that this incident happened
to him. Further. there is insufficient basis for inferring
that Hodges received a report mistakenly attributing this
incident to Harrell.
b. Damage o bus 109
During an instruction course administered by Milam
shortly after Harrell was hired in mid-February 1979 (see
infra, fn. 17), Harrell "hung" bus 109 against a pipe stick-
ing in the curb. After this incident, Harrell told Milam
that Harrell did not think he could handle bus 109 be-
cause it had a stick shift and he thought his left leg was
not strong enough to depress the clutch. Milam did not
demur." As of late November 1980, the damage thus in-
flicted on the bus had not been repaired. Milam testified
that the damaged panel costs $86, and replacing it would
take about 2 hours. Milam further testified that about
two employees (one of whom Milam did not hire be-
cause that driver could not even hold the bus on the
road) besides Harrell had run against curbs when being
trained to operate a stick shift.
The record fails to show when Hodges first learned of
Harrell's damage to bus 109. Hodges, who necessarily
testified solely on the basis of reports made to him, testi-
fied that the damage occurred "I believe" in late 1979 on
16th Avenue. Harrell denied damaging a bus at the
Country Corner on 16th Avenue in October or Novem-
ber 1979. Milam was not asked the location of bus 109
when it was damaged in his presence. Hodges admittedly
did not issue any warnings to Harrell in consequence of
damage to bus 109, and there is no evidence that anyone
else in management issued such warnings.
c. Damage to bus 123
Milam credibly testified that about February 1979, the
first month of Harrell's employment, Milam discovered
that the center of the back of bus 123 had been bent in,
and in consequence the valve cover gaskets had been
bent and oil was leaking out. Milam further credibly tes-
tified that he inferred the damage was caused by a colli-
sion with a round piece of pipe. Still according to
Milam's credible testimony, Respondent's records
showed that Harrell had been driving the bus when it
was damaged. Milam credibly testified that he did not
discuss the accident with Harrell; and there is no evi-
dence that anyone else did." Respondent repaired the
7 Although Milam dated this incident as having occurred about Janu-
ary 1979. before Harrell began :orking for Respondent. I nonetheless
accept Milam's testimony that it occurred, in view of Harrell's testimony
that Respondent attempted to train him on bus l() hut his left leg was
not strong enough to depress the clutch.
'" Accordingly. I believe that Harrell was honest, although mistaken,
in denying that he caused such damage.
1366
GRAY LINE TOURS
valve covers and gaskets at a total cost of $175 to $225.
Replacing the back gate would have cost $1,000, and as
of November 1980, about 10 months after the accident,
the back gate had not been replaced. On an undisclosed
date, Milam reported the incident to Hodges, who could
not recall whether this incident occurred in 1979 or in
1980.
d. Damage to bus 117 in Respondent's parking lot
Milam credibly testified that on a date in 1979, which
he could not recall, while Harrell was backing up bus
117 in Respondent's parking lot, Harrell hit another em-
ployee's parked station wagon, thereby damaging the sta-
tion wagon and the front fender on the driver's side of
the bus. (According to Milam, more damage was inflict-
ed on the bus than on the station wagon because the bus
side is very flimsy.) Milam further credibly testified that
Harrell offered to help him "pull out" the caved in por-
tion of the bus.'9
Kay credibly testified that Milam reported this inci-
dent to her, on a date which she was not asked to give.
Hodges testified that on the day this incident happened
or on the next day the incident was brought to his atten-
tion by a means which he was not asked to describe.
Milam, whom I regard as a more reliable witness than
Hodges, testified that he did not report this incident to
Hodges when it occurred, but did report it to him
"later," on a date which Milam could not recall. Milam
further testified that all that had yet been done in con-
nection with the two dented panels was that he himself
had beaten out the dents. He testified that Respondent
would replace the panels "this winter" (he was testifying
in late November 1980) at an estimated cost of about
$450, and further testified, "We try to do our repair
work and skin work and what-not during the winter
months when we're not driving the buses so much be-
cause during the summer, we almost have to go with
whatever is on them at that time to keep our company
moving." As previously noted, Milam testified that the
damage was inflicted in 1979. Hodges dated the incident
as the late spring or early summer of 1979. He could not
remember whether he discussed it with Harrell. Hodges
admittedly did not give Harrell any warnings in conse-
quence of this incident, and there is no evidence that any
other member of management issued such warnings.
e. Damage to bus 127
On May 10, 1979, Harrell backed bus 127 into a sign
post at the Quality Inn motel, thereby damaging the sign
post and the rear bumper. He reported this incident to
Hodges and Milam. Replacing the bumper cost Respond-
ent about $250. The city replaced the sign. Hodges ad-
mittedly did not issue any warnings to Harrell in conse-
quence of this incident, and there is no evidence that any
other member of management issued such warnings.
f. Damage to bus 117 blinker arm
Hodges testified that Harrell was responsible for what
Hodges initially termed the "purposeful destruction" of
' For demeanor reasons, I do not accept Harrell's testimon) ha he
did not in fact inflicl this damage or discuss it s ith Milam
the blinker arm on bus 117. (A few minutes later,
Hodges testified that the damage to the blinker arm
"would either have to be negligence or intentionally
done.") The credible evidence shows that on or before
April 18, 1980. a week before Harrell's discharge, the
lever which operates the turn signals and the blinkers on
that bus snapped in two. The credible evidence further
shows that on April 18, while the bus was on the road,
mechanic Baker left the shop and effected a temporary
repair by installing an emergency blinker system on the
outside of the steering column: and that on April 19,
Milam made a permanent repair by replacing the blinker
arm and rewiring the flasher system.
The record contains no direct evidence regarding the
date on which the blinker arm broke, or who was driv-
ing the bus at this time.20 Harrell was not asked about
the matter. A driver is supposed to make a written
report of mechanical defects which develop while he is
driving the bus, and no such written reports about the
broken blinker arm appear in Respondent's records. Usu-
ally, but not always, an employee who is to drive a par-
ticular bus on a particular date is the one who had fueled
that bus on that date. Respondent's April 18 fuel log
states that bus 117 was fueled by someone whose first
name was Henry; at least as of April 25, Respondent's
drivers included HerUly Hartman. On occasion, the same
bus is driven on a particular day by two or more drivers.
Hodges testified that on April 18 he heard Harrell call in
on the radio that his blinkers had just gone out, where-
upon Hodges sent out a mechanic, whom he did not
identify, who effected the temporary repair. Milam, a
more reliable witness than Hodges, testified that it was
he who sent out the mechanic who made the temporary
repair. Milam further testified that he did not find out
until after the mechanic returned that it was Harrell who
was driving the bus. The record fails to show the cost of
either repair. Hodges testified without contradiction that
upon returning to the office at I p.m., on April 18, Har-
rell alleged that the temporary repair of the blinkers had
been ineffective, whereupon Hodges pointed out to Har-
rell that he had the blinkers in the wrong position. There
is no evidence that Harrell was ever reproved in connec-
tion with the broken blinker arm.
3. Harrell's alleged conduct in connection with
loading passengers on April 25
Hodges testified that he discharged Harrell partly be-
cause of a report he received from Hoover regarding
Harrell's alleged conduct in connection with loading his
"' Respondent's trip schedule sheets specify which drivers drose which
vehicles each day As the General Counsel's first witness. Hodges tesfi-
fied, in effect, that Respondent still possessed records shovuing who
drove bus 117 on April 18 On the following day . hen testifying for Re-
spondent on rebuttal. he testified that about 2 weeks before the hearing
Respondent's counsel had asked him for the trip schedule sheets for April
17 and 18. and Hodges could not find them. Further. Respondent's coun-
sel stated on the record that Hodges had "advised me that he didn't have
the records fr the vweek lof April 13-20.1 We did retain the records fior
the week [April 20 27] Mr Harrell was terminated. hut not the preced-
ing week " Milam testified that he as pretl sure" Rcspondenl retuned
and did not deslroy the trip schedule sheet,. and Ka tesilfied it Nolsem-
her 1980 that she personally knew that Respondenl kept these sheets ll
the tsa\ hack to 179,
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bus for the tour on the morning of April 25, the day of
his discharge. Both Hoover and Kay testified that Har-
rell engaged in this conduct at a time of day after the
time when Hodges (according to him) received Hoover's
report.
Hodges testified that after all three tour vehicles had
departed for the tour that morning, Kay told him that
she had advised the drivers by radio (necessarily, she
would have done so while they were making their pick-
ups) that the tour was sold out or almost sold out and
that each driver should make sure, before leaving the
office on his tour, that his vehicle was completely full.
Kay testified that she did not realize until after the driv-
ers had returned from their pickups, about 9:45 a.m., that
the tour had been completely sold out. She initially testi-
fied that she conveyed the full-vehicle caution to each of
the three drivers as they came back into the office after
making their pickups; but she later testified that she did
not remember any contacts with Harrell that morning
after he reported to work, and received his work assign-
ment, at 8:30 a.m. Hoover, like Kay, testified that he did
not determine until after 9:45 a.m. that the tour was sold
out. He testified that he conveyed a full-vehicle caution
to all three drivers individually, and he so cautioned
Harrell when he was standing at the bus boarding his
passengers for the tour.
Hodges testified that Hoover fold him Harrell had
come into the office claiming his bus was full, but Kay
noticed three ticketed customers standing by the door of
Harrell's bus waiting to get on; and while Harrell was in
the office counting his tickets,21 Hoover went out to and
boarded Harrell's bus, found three empty seats, invited
the three alleged waiting customers to get on board, and
gave Harrell the three ticket stubs. Both Kay and
Hoover denied that these three alleged customers were
waiting by the door of Harrell's bus; and both of them
testified that Harrell and not Hoover picked up these
three alleged customers' tickets.
Kay testified that Harrell reported to her in the office
that his bus was full; whereupon Hoover left the office,
went out to the bus, and seated these three alleged cus-
tomers. Hoover testified that while he was standing out-
side helping the drivers to load their vehicles, Harrell
got off his bus, told Hoover that it was full, and proceed-
ed inside the office to count his tickets; whereupon
Hoover got on the bus, ascertained that there were three
unoccupied seats, escorted these three alleged customers
onto the bus, and then returned to the office, where he
told Harrell what had happened. Harrell credibly testi-
fied, with substantial corroboration from Hodges and
Kay, that she or the cashier decides which bus each cus-
tomer is assigned to and tells the customer which one to
board.2 2 Kay's April 25 entry on the back of Harrell's at-
- Hodges testified that drivers are supposed t coutn their tickets "out
by the bus. You're not supposed] to nte running back ad forth into the
office while people are still trying to get on your bus I looer lestiflied
that it makes no difference where the drivers count heir tickets although
most drivers d so as the passengers hoard the bus.
Because Kay; and Harrell ere i a soiltmehal better psiililon than
Hotover to know the facts. id for demeatnor reasons. I do nrot accept
Hooer's testimony that KaN or the cashier assigns huses to thile custom
-
ers only occasiontally." when (unlike here) dilfferentt huses are going oil
different tours
tendance sheet, where she made entries regarding var-
ious incidents of allegedly culpable employee conduct,
contains no reference to the alleged loading incident.
In view of the foregoing discrepancies in the testimony
of management representatives regarding the loading in-
cident, the improbability that three ticketed customers
would have received either no bus assignment or assign-
ment to a bus which had already been filled, and for de-
meanor reasons, I discredit management's testimony that
Harrell was told to be sure his bus was full, and that in-
accuracy in his report that it was full delayed the tour
and came close to making three ticketed customers
unable to take it. Rather, I credit Harrell's denial that he
received such instructions or had any conversations with
Kay or Hoover regarding not loading any passengers,
and his testimony that his tour left on time or very close
to it. Further, I discredit Hodges' testimony about Kay's
and Hoover's reports to him, which reports (as Hodges
described them) are unexplainedly different from Kay's
and Hoover's testimony about what really happened.
C. Allegedly Blameworthy Conduct by Harrell .ot
Relied on as Motivating His Discharge
Respondent produced evidence regarding various al-
leged incidents of blameworthy conduct by Harrell to
which Hodges did not refer in testifying about why he
decided to discharge Harrell.
1. Alleged damage to window of bus 129
Kay testified that it was she who wrote, on the back
of Harrell's attendance sheet, "December 27, 1979-
While backing up Bus #129, he hit wall and cracked
back window."" ' She was not asked the basis for her no-
tation in this respect. Harrell's denial that this occurred
is uncontradicted by any probative evidence. There is no
evidence that anyone ever mentioned the matter to him.
2. Taking the bus home without permission
Kay further testified that it was she who wrote on the
back of Harrell's attendance sheet, "January 1-2, 1980-
Took bus #127 home without permission." On January
i, 1980, Harrell was directed to provide bus transporta-
tion for the Louisiana State University basketball team,
who were staying at the Opryland Hotel and were to
play the Vanderbilt University basketball team that eve-
ning. He drove the team to the basketball arena, waited
for them until the game had ended, and then drove them
to their hotel. Their hotel was about 6 miles from Har-
rell's residence, then in Madison. However, the hotel was
about 11 miles from Respondent's terminal in downtown
Nashville, Harrell's home was about 12 miles from the
terminal, and he was going to have to pick up the team
at their hotel at 8 a.m., on January 2 in order to take
them to the airport to catch their flight home. During
this period, Harrell was regularly assigned to the com-
muter run from Hendersonville to Nashville. Because
Harrell's Madison residence was closer to Hendersonville
' She testified thai the dales ss hich he entered 1il the back of the em-
ployc' atlltendance sheets ere the datcs of the incidellts ad riot of the
notations
13X68
GRAY LINE TOURS
than to Nashville, Kay had given him permission to take
the bus home in the evening and to drive it directly to
Hendersonville in the morning to pick up commuting
passengers. She did not tell him that his taking the bus
home was restricted to the Hendersonville run. Although
Harrell had not received (or, so far as the record shows.
sought) express permission to take the bus home after
driving the basketball team to the hotel, he nonetheless
did take the bus home, where he arrived about 12:45
a.m., on January 2. After transporting the team to the
airport later that same morning, he radioed back to the
office that he had done this and was returning to the ter-
minal, and he did in fact so return.
Kay testified that Hodges and Hoover reported to her
on January 2 or 3 that they had seen Harrell "driving
the bus on the Interstate" without any passengers. Kay
testified that she inferred from their inquiry that they
had not given Harrell permission to take the bus home,
and she knew that she had not. She "confronted" Harrell
about the matter. He said that he had taken the bus home
because he had the same group for 2 days and he lived
close to where he had to pick them up. Kay testified that
she considered this interview a "verbal warning."
Hodges testified that he and Hoover were driving
from Hendersonville to Respondent's Nashville terminal
(southwest of Hendersonville) about I p.m., on a January
date which he did not give, and saw Harrell driving an
empty bus north on Interstate 65. Still, according to
Hodges, he asked Kay whether she had given permission
for Harrell to take the bus home, and she said no. Madi-
son, where Harrell then lived, is southwest of Hender-
sonville but northeast of downtown Nashville. If Hodges
and Kay were testifying about the same incident, for de-
meanor reasons I regard Kay as a more reliable witness.
3. Suspected misrepresentation in order to take day
off
On or about February 24, 1980, Harrell took the day
off because his daughter was ill and his ex-wife was
unable to care for her. He advised Respondent by tele-
phone that for this reason he would not report for work
that day. 24 During his absence, an unidentified female
telephoned the office, talked to Kay, and asked whether
Harrell had come to work that day. Kay replied that he
had called in to say he would not be in that day because
of a relative's illness. The caller then responded that
Harrell was in the midst of moving that day. (Harrell
credibly testified that he may in fact have moved some
personal belongings that day, because during that period
of time he was in the process of slowly moving some
personal belongings to a new home.) Harrell credibly
testified that when he reported to work the next day
Kay mistakenly accused him of making a false claim of
illness in the family in order to get the day off for pur-
poses of moving. 25
"2 Kay may have been advised. by reason of confusion on the part or
the employee who took the message that the sick relalivce as, Harrell's
aunt I infer that this misunderstanding was straightened out sWhen Kay
later discussed the matter ilh Harrell. Kay testified thalt calls of this
nature are supposed to be made to members of management.
S" Kay testified hat because of "negligence on rn m part." she did nol
discus tihe mailer ssilh Harrell I regard his Icsletinmon i therwsie a, more
D. Analysis and Conclusions
About 4 months after being hired by Respondent, Har-
rell commenced efforts to persuade his fellow employees
that they needed a union for employee protection and
company benefits. About 10 months later, and a few
weeks before his discharge, Harrell signed a union card.
Although Harrell's union activity throughout this period
had been "low profile," Respondent's chief executive of-
ficer, Hodges, found out about it and, in the latter part of
April, told Harrell's immediate supervisor, Kay, in Vice
President Hoover's presence, to find a reason to get rid
of Harrell because of the Union. Within the following
week, Hodges himself discharged Harrell on the staled
ground of "over-exaggerating the condition of company
equipment" and "over-exaggeration of a problem that
didn't exist." Hodges precipitately effected this discharge
in the middle of the working day, just before Harrell was
supposed to start a tour to which he had been assigned
that very morning because another driver had quit that
morning without notice, after the start of Respondent's
busy season, and the last afternoon before the beginning
of a weekend, when Respondent is busier than during the
week. Moreover, at least as of the end of October 1979
(less than 6 months before Harrell's discharge) Hodges'
opinion of Harrell had been favorable enough so that
when Harrell said he wanted to become manager of Re-
spondent's Memphis operation, Hodges gave him permis-
sion to apply, said that he would "consider" the applica-
tion, asked him to turn in a resume, and told him that
Respondent preferred to promote from within.
Furthermore, the record establishes the pretextual
character of various incidents which according to
Hodges were the real reason for Harrell's discharge.
Some of such incidents did not occur at all (Harrell's al-
leged damage to bus 128, and his alleged misloading of
his bus on the day of his discharge). Other incidents in-
volved equipment damage as long ago as the first month
of his hire 14 months earlier, or which Respondent failed
to repair notwithstanding ample opportunity to do so
during Respondent's slack season, or which was never
discussed with Harrell, or for which he was never re-
proved: and none of such incidents involved personal
injury or the issuance of traffic tickets. As to the "proper
uniform" requirement, management witnesses were
rather uncertain about just what was supposed to be
worn and the frequency and seriousness of Harrell's
breaches, and the "uniform" regulation was (according
to Kay's February 1980 memorandum to all the drivers)
"the one least enforced." In view of the foregoing con-
siderations, I find at this point that Harrell was dis-
charged because of his union activity, in violation of Sec-
tion 8(a)(3) of the Act and (derivatively) Section 8(a)(1).
Hodges testified that Harrell's April 23 action in com-
plaining to owner Bass, in disregard of the "chain of
command" which began with Harrell's immediate super-
visor, "would be a supporting reason for discharging
him"; and when asked whether bypassing supervisors
probahlhl K a; did inote the incidentl on, the hk orf llarrell, I.ittendance
record: her referetice to the alleged illn ess of Ilarrell's aunt lead, nme Io
conclude Ihal ste niade this eeIIrs hsefore Jlsceissilg tIh matter ' till him
1369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was one of the reasons why Harrell was discharged,
Hodges replied, "Yes, it is about the fourth or fifth
reason." On the basis of Hodges' testimony in this re-
spect, I find that Harrell's discharge also constituted an
independent violation of Section 8(a)(1) of the Act. I so
find because in complaining to Bass that Harrell and
other drivers were concerned that their safety was en-
dangered by the management practices and ineptness of
one of Respondent's supervisors, Harrell was engaged in
conduct protected by Section 7 of the Act. N.L.R.B. v.
Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d
8, 11-12 (6th Cir. 1960); Jim Causley Pontiac, Division
Jim Causley, Inc., 232 NLRB 125, 127-128 (1977), re-
manded 620 F.2d 122 (6th Cir. 1980), decision on remand
253 NLRB 695 (1980).
Respondent was not privileged to discharge Harrell on
the ground that he had chosen to make his protected
complaint, under Section 7, to Bass rather than to lower
level members of management, at least unless Respond-
ent had clearly communicated to employees that it had a
mandatory policy which required them to make such
complaints to Hodges or his management subordinates
rather than to Bass. Quik-Pik Food Stores, Inc., 252
NLRB 506, 512 (1980); Sheraton Puerto Rico Corp., d/b/a
Puerto Rico Sheraton Hotel, 248 NLRB 867, 873 (1980). 1
find that Respondent had failed to make such a commu-
nication. Hodges testified that Respondent has no written
policy requiring drivers to make complaints to Kay first,
then to Hoover, and then to Hodges. He credibly testi-
fied that about October 1979, when Harrell said that he
wanted a meeting with both Hodges and Bass about Har-
rell's application for the job of manager of Respondent's
Memphis operation, Hodges "explained to him my duty
and my roles and the supervisor's duties and roles, and
that [Bass] wasn't involved in a day to day basis and left
all those things up to me, and that I did not want [Har-
rell] going and bothering Mr. Bass with an interview or
asking him or trying to get him to let [Harrell] be the
manager of the Memphis office." Manifestly, however, a
"chain-of-command" requirement regarding an applica-
tion for promotion to a supervisory job does not clearly
carry with it a like requirement regarding complaints
about working conditions. Indeed, although Hodges tes-
tified that Harrell should have addressed certain com-
plaints about scheduling to Kay rather than (as he did) to
Hoover or Hodges, he further testified that he told Har-
rell not to send copies of his application and resume to
Kay and Hoover. Furthermore, there is no evidence that
Harrell was ever reproved for bypassing Kay in com-
plaints about scheduling. Moreover, although Hodges
testified that Harrell had gone "beyond the chain of
command" in criticizing Memphis management to
Hodges following Harrell's mid-October 1979 detail to
Memphis, Hodges' testimony indicates that he did not re-
prove Harrell for such bypassing, but instead entertained
Harrell's October 31 application to manage the Memphis
operation. Indeed, Respondent's own managerial person-
nel were uncertain about Respondent's managerial hier-
archy: Hodges testified that Kay "reports to me" but
Hoover "would fall between myself and Connie Kay";
and Kay testified that her direct supervisor is Hodges al-
though she answers to Hoover because he is corporate
vice president. In view of the foregoing, the record fails
to establish a clearly communicated mandatory policy
which required Harrell to make his complaints about
Hoover's allegedly safety-endangering management prac-
tices and ineptness, and his alleged failure to command
respect from the drivers, to Kay (Hoover's subordinate),
Hoover himself, or Hodges rather than to Bass.
It is true that Hodges received from Bass a version of
Harrell's complaint which was si iciently garbled so as
to fail to show, standing alone, whether the employees'
complaint about their supervisor was entitled to statutory
protection. More specifically, Bass described the employ-
ees as "having no respect for" and disliking Hoover,
without Bass specifying the reason; and the Section 7
protection afforded to complaints about a supervisor de-
pends upon what the employees are complaining about.
See Cleaver-Brooks Mfg. Corporation v. N.L.R.B., 264
F.2d 637, 640-641 (6th Cir. 1959), cert. denied 361 U.S.
817 (1959); Guernsey-Muskingum, supra, 285 F.2d at 12-
13. However, Respondent was charged with the knowl-
edge of owner Bass, who is admittedly Respondent's
agent and supervisor and is Hodges' superior, about the
nature of the employees' complaint regarding their super-
visor's conduct. N.L.R.B. v. ED.S. Service Corp., 466
F.2d 157, 158 (9th Cir. 1972); see also N.L.R.B. v.
Burnup and Sims Inc., 379 U.S. 21 (1964); V.L.R.B. v.
Cambria Clay Products Company, 215 F.2d 48, 53-54 (6th
Cir. 1954). 1 note that when Bass reported the complaint
to Hodges he did not (so far as the record shows) ask
Bass what the employees were complaining about.
Finally, Hodges testified that he discharged Harrell
partly because he made what Hodges believed to be un-
justified complaints about the operation of the heat on
bus 117. Because Harrell himself thought the bus was too
cold and the discharged passengers on the morning tour
had complained to him about the cold, Hodges' conclu-
sion that the new passengers were not feeling uncomfort-
able after sitting on the bus for a few minutes awaiting
the afternoon tour does not render Harrell's complaints
unprotected. N.L.R.B. v. Washington Aluminum Compa-
ny, Inc., 370 U.S. 9, 15-16 (1962).26 Respondent's conten-
tion that Harrell's complaints did not constitute "con-
certed" activity within the meaning of Section 7 disre-
gards the fact that bus 117 was used by a number of
drivers and, when Harrell complained to Operations
Manager Kay over the company radio on the date of his
discharge that the heat on bus 117 was not working, an-
other driver thereupon chimed in over the radio that the
heat on that bus had not been working the previous
night either.27
In any event, the Board takes the position that an indi-
vidual acting alone, apparently seeking immediately to
protect his own interests, is engaged in protected con-
certed activities if his complaint refers to a matter
!" Moreover, because tour drivers sometimes receive tips from passell-
gers who are particularly pleased with the tour. as they would likely not
he if they had been uncomfortably cold, the temperature of the bus af-
fected employee wages as well as working conditions.
2 Hodges did not deny awareness of this incident In any event, Re-
spondent is charged with admitted Supervisor Kay's knowledge of the
other driver's action in joining in with Harrell E.DS., upra. 466 F2d at
158.
1370
GRAY LINE TOURS
common to other employees. Bucyrus-Erie Company, 247
NLRB 519, 523 (1980). Respondent contends that this
Board position is contrary to the views of the Court of
Appeals for the Sixth Circuit, within which circuit this
case arises and which will probably, although not cer-
tainly, be the court of appeals which considers this case
if litigation continues to that point. However, as the
Board said in Iowa l'ef Packers. Inc., 144 NLRB 615.
616 (1963), modified il F.2d 176 (8th Cir. 1969):
It has been the Board's consistent policy for itself
to determine whether to acquiesce in the contrary
views of a circuit court of appeals or whether, with
due deference to the court's opinion, to adhere to
its previous holding until the Supreme Court of the
United States has ruled otherwise. But it is not for
[an Administrative Law Judge] to speculate as to
what course the Board should follow where a cir-
cuit court has expressed disagreement with its
views. On the contrary, it remains the [Administra-
tive Law Judge's] duty to apply established Board
precedent which the Board or the Supreme Court
has not reversed. Only by such recognition of the
legal authority of Board precedent, will a uniform
and orderly administration of a national act, such as
the National Labor Relations Act, be achieved.
See also Ford Motor Company (Chicago Stamping Plant),
230 NLRB 716, 718, fn. 12 (1977), enfd. 571 F.2d 99 (7th
Cir. 1978), affd. 441 U.S. 488 (1979). Further, even as-
suming arguendo that Harrell's complaints that his bus
was too cold were not protected by Section 7, 1 con-
clude that he would not have been discharged in the ab-
sence of the activities whose Section 7 protection Re-
spondent does not dispute. The record shows that
Hodges was anxious to find a pretext for discharging
Harrell for his union activity, and that in defending Har-
rell's discharge, Respondent relied on a number of purely
pretextual reasons, including imaginary derelictions alleg-
edly engaged in by Harrell on the same morning when
he continued to complain about the temperature on his
bus. Accordingly, I conclude that Harrell's discharge
violated Section 8(a)(1) and (3) of the Act.
In so finding, I am aware that the Board of Review of
the Tennessee Department of Employee Security re-
versed decisions favorable to Harrell by the appeals ref-
eree and the appeals tribunal, and found that Harrell was
discharged "with good work connected cause." A find-
ing by such a state agency of an employer's motive for a
discharge challenged before me under the National
Labor Relations Act is not binding upon me, but must be
evaluated in the light of all the evidence in the record
made before me. .N.L.R.B. v. Tennessee Packers. Inc..
Frosty Morn Div., 339 F.2d 203, 204 (6th Cir. 1964); Du-
quesne Electric and .Manufacturing Company. 212 NLRB
142, fn. I (1974), enfd. 518 F.2d 701 (3d Cir. 1975);
Herald Lif/i Insurance Company (Independent Life & 4cci-
dent Company), 227 NLRB 1546, 1556, fil. 51 (1977);
Justak Brothers and Companyv. Inc., 253 NLRB 1054
(1981). The Board of Review's decision refers to two in-
cidents (damaging a bus on December 27, 1979, and
taking the bus home without permission) on which
Hodges did not rely before me in testifying why he de-
cided to discharge Harrell. 2 Further, the Board of
Review found that Harrell had received "written warn-
ings for his failure to comply with the employer's regula-
tions"; the record made before me shows only one writ-
ten warning. Moreover, Harrell was not represented and
did not appear at the Board of Review hearing, which
was held 2 days after he began a new job with another
employer, although he did testify before the appeals ref-
eree, who approved his compensation claim. It is true
that in testifying before the appeals referee about why
Harrell had been terminated, he gave the reason given
him by Respondent, "over-exaggeration of the condition
of company equipment." and testified that he was not
terminated because of any union activity. However, Re-
spondent never indicated in Harrell's presence that he
had been discharged for union activity, or even that Re-
spondent knew about it, and Tinkham, who credibly tes-
tified before me that she overheard Hodges tell Kay to
find a reason to discharge Harrell because of the Union,
did not testify at all during the unemployment compensa-
tion hearing. Nor does the Board of Review's decision
allude either to Harrell's complaint to Bass or to the fact
that another driver joined in to complain that the heat on
bus 117 was malfunctioning. In view of the foregoing,
the Board of Review's decision does not call for dismiss-
al of the unfair labor practice complaint before me.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act by discharging Mike Harrell in viola-
tion of Section 8(a)(1) and (3) of the Act.
Till RMEi)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom, and from
like or related conduct. Affirmatively, Respondent will
be required to offer Harrell immediate reinstatement to
the job of which he was unlawfully deprived, or if such
a job no longer exists, a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges previously enjoyed. In addition, Respondent
will be required to make him whole for any loss of pay
he may have suffered by reason of the discrimination
against him, less net earnings, to be computed in the
manner prescribed in F: W. Woolworth Comparny. 90
NLRB 289 (1950), with interest as called for in Florida
Stecl Corporation. 231 NLRB 651 (1977).'9 Also, Re-
spondent will be required to post appropriate notices.
s ,\ , 1 lte )cccnihcr 1')7) iiicitdcint. O1il proh;ai cc ,v oletR prccn1ted
to l (lc th lrr f R l. Bcalr' 4..ci l l!l 19kc') dlllwl tua5 Complcl a l rillrl.gll:
th11 lIlrrcll u la, l I s slo .
-" Scc, giclcrls 1w, I w n/gu imb g & llca:wi (, 118 NL Rit I 11I 2')2
the (cncral (ountllc rcquJclN 1i' 1 ')-1 phrctlt IlICtrst ril is .dc'lL'dI
O/lv'ttr %trdtl Cliorporuri.., 25{) NI RIt 14 t ] 181))
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 30
The Respondent, Music City Services, Inc. d/b/a
Gray Line Tours, Nashville, Tennessee, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise effecting reprisals against
employees because they have engaged in concerted ac-
tivities for the purpose of mutual aid and protection.
(b) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term or conditions of employment, to discourage
membership in the Amalgamated Transit Union or any
other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Mike Harrell immediate reinstatement to the
job of which he was unlawfully deprived or, if such a
30 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board arind
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
job no longer exists to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole for
any loss of pay he may have suffered by reason of the
discrimination against him, in the manner set forth in the
part of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or useful for analyzing the amount of
backpay due under the terms of this Order.
(c) Post at its Nashville, Tennessee, facility copies of
the attached notice marked "Appendix." 3' Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
:" In he event that this Order is enforced hby a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1372