Leisure Time Tours, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 986 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leisure Time Tours, Inc. and Dominick Brunner
and John A. Frey. Cases 22-CA-9840 and 22-
CA-9845
September 30, 1980
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 30, 1981, Administrative Law Judge
Steven B. Fish issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions 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
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order.3
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, Leisure Time
Tours, Inc., Mahwah, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order except
that the attached notice is substituted for that of
the Administrative Law Judge.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In affirming the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(3) and () of the Act by discharging employ-
ee Brunner, we find no need to rely on the Administrative Law Judge's
discussion of Charles Batchelder Company, Inc., 250 NLRB 89 (1980), en-
forcement granted in part, denied in relevant part 646 F.2d 33 (2d Cir.
1981).
' In accordance with his partial dissent in Olvmpic Medical Corporation
250 NLRB 146 (1980), Member Jenkins would award interest on the
backpay due based on the formula set forth therein.
258 NLRB No. 128
APPENDIX
No-rTic To EMPI.OYE.ES
POSTI D BY ORDIER OF THE
NATIONAL. LABOR REATIONS 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.
WE WILL NOT grant our employees wage in-
creases or other benefits in order to induce
them to withdraw their support from United
Transportation Union. However, we are not
required to withdraw, vary, or abandon any
wage increases or benefits which we have
granted.
WE WILL NOT discharge our employees,
assign to our employees less desirable work, or
otherwise discriminate against our employees,
because of their activities on behalf of the
Union, or because said employees engage in
other protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE Wll.l. offer John Frey and Dominick
Brunner immediate and full reinstatement to
their former jobs or, if such jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed,
and make them whole, with interest, for any
loss of earnings they may have suffered due to
the discrimination practiced against them.
LEISURE TIME TOURS, INC.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge: Pursuant
to charges and amended charges filed by Dominick
Brunner and John Frey, an order consolidating cases and
complaint and notice of hearing was issued by the Re-
gional Director for Region 22 on May 20, 1980.' The
complaint alleges in substance that Leisure Time Tours,
Inc., herein called Respondent, violated Section 8(a)(1)
of the National Labor Relations Act, as amended, by
promising and granting its employees wage increases and
guaranteed minimum hours of work to refrain from be-
coming or remaining members of United Transportation
' All dates are in 198() unless otherwise indicated.
986
LEISURE TIME TOURS. INC.
Union, AFL-CIO, herein called the Union, and that Re-
spondent violated Section 8(a)(l) and (3) of the Act by
transferring Brunner to less desirable work than he pre-
viously had been assigned, and by discharging and refus-
ing to reinstate Brunner and Frey, because said employ-
ees joined or assisted the Union or engaged in other con-
certed activities for the purpose of collective bargaining
or mutual aid or protection.
A hearing was held before me with respect to the alle-
gations encompassed in said complaint on November 19
and 20 in Newark, New Jersey. Briefs have been filed by
the General Counsel and Respondent, and have been
duly considered.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, is engaged in
the business of providing and performing intrastate and
interstate bus transportation services and related services
with its main office and place of business in Mahwah,
New Jersey. During the past year, Respondent provided
and performed interstate bus transportation services
valued in excess of $50,000 between New Jersey and
other States of the United States other than the State of
New Jersey. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE lABOR ORGANIZATION
It is also admitted and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THE FACTS
My findings of fact, set forth below, represent a com-
posite of the testimony of the General Counsel's wit-
nesses, Brunner, Frey, Harry Buehlmeir (a former super-
visor of Respondent), and Ray Pirnat, a former employee
of Respondent, as well as various documents from Re-
spondent's files.2 Respondent presented none of its offi-
cials to contradict, deny, or explain any of the testimony
adduced from these witnesses. Respondent urges that, be-
cause of various inconsistencies and conflicts between
the testimony of the General Counsel's witnesses, be-
tween the witnesses' testimony on cross-examination and
direct, and between their testimony and their pretrial af-
fidavits, their testimony should be discredited entirely. I
do not agree. The majority of the conflicts and inconsis-
tencies referred to by Respondent were minor and incon-
sequential, dealing with recollections of precise dates and
other similar such items. Although the record did con-
tain a few major conflicts, particularly in the area of the
: Charles Gordon, Respondent's safety director. customer relalions
manager, and personnel manager, and an admitted supervisor of Re-
spondent was called as a witness h)by the General Counsel and was eam-
ined pursuant to1 sec. 61 (c) of the Federal Rules of Evidence, 28
U.S.C.A. His testimony, essentially limited to the identification and au-
Ihenlication of certain documents of Respondent. has also been conid-
ered
execution of union authorization cards, to he discussed
more fully infra, I find them to be insufficient to warrant
totally discrediting the uncontradicted and undenied tes-
timony of these witnesses, whom I found to he generally
believable and candid, and whose testimony was essen-
tially mutually corroborative in most areas of signifi-
cance.
Brunner and Frey were both employed as busdrivers
for Respondent until the dates of their discharge in mid-
March 1980. Brunner began his employment for Re-
spondent in August 1974, and Frey commenced his em-
ployment on May 4, 1979.
Respondent performs two basic types of driving serv-
ices. Charter runs involve transporting various communi-
ty groups on trips ranging from I day to a month in
length to various locations throughout the United States
and Canada.
Line runs, unlike charter runs, involve multiple stops
along routes to pickup and discharge passengers. At
these stops drivers are frequently expected to sell tickets
to the waiting passengers and to receive tickets previous-
ly purchased by the passengers from ticket agents locat-
ed near the bus stops. The drivers are required to retain
a portion of all tickets sold as a receipt for the sale and
as a record of the passenger count, and to return all re-
ceipts and fare moneys to Respondent's dispatcher at the
conclusion of each run.
From 1974 to 1978 Brunner performed only charter
runs. In 1978 Respondent acquired a line run from Oak-
land, New Jersey, to New York City. Brunner at that
time began to be assigned some line runs, principally the
Oakland run, spending on the whole 90 percent of his
time on charter runs and 10 percent on line runs. Frey
performed a combination of line and charter service
work, including the regular operation of the Oakland and
Atlantic City line runs.
Respondent's Atlantic City run commenced in 1979.
This route carried passengers, primarily gamblers, to At-
lantic City destined for the newly opened casinos. Re-
spondent operated several different Atlantic City runs
with stops at different locations throughout New Jersey.
Drivers on these routes were required to transmit the
passenger count after each stop to Respondent's dispatch
office, over the bus radio, so that Respondent could de-
termine if additional buses were needed to service pas-
sengers on a particular route.
In March 1980, Respondent employed between 26 to
28 drivers. Brunner was first in seniority, which entitled
him under longstanding company policy to first choice
of all line or charter runs, which are distributed on a bid
system. Seniority was followed on all bids for selection
of routes with the exception of situations where a partic-
ular charter group requested a specific driver based on
the driver's prior satisfactory service with that group.
In June 1979, Charles Gordon became Respondent's
supervisor in charge of customer relations and safety.:
Gordon. after his appointment, began to harass the em-
ployees and imposed what some employees felt was un-
justified discipline. In response to Gordon's actions, as
Jlrunner had hen offTered (ordoin's oh hcforc ( olidll ai t .ccptctd iatd
later ilurned he joh ow n i orlet to rnli ni a ri er
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as to secure increased benefits, Respondent's em-
ployees, in September 1979, formed an employee griev-
ance committee. This was done at Brunner's suggestion,
and he was selected as employee spokeman along with
employees Steve Danzi and Kenneth Ost. A petition was
drawn up in November, and signatures were obtained by
the three committee spokesmen in early November. The
petition stated that the drivers had formed a grievance
committee of three drivers to discuss with management
various matters, including discipline, raises, benefits,
safety, and the condition of vehicles. The petition re-
quested a meeting with management so that the commit-
tee could be recognized as the representative of the driv-
ers, and was signed by 20 employees. Frey is the 2d
name listed on the petition, and Brunner is the 10th name
listed.
A copy of this petition was sent by Brunner to John
Mercandante, Respondent's president. On November 15,
1979, Gordon sent a letter to Brunner, Danzi, and Ost,
acknowledging receipt of the petition and suggesting a
meeting for November 19, 1979.
A meeting was held on that date, attended by John
and Gerald Mercandante (Respondent's director of oper-
ations), Gordon, Brunner, Danzi, and Ost. Brunner acted
as committee spokesman at this session. John Mercan-
dante scratched out the line in the employees' petition
dealing with wages and benefits, and said that it was not
the purpose of the committee to bargain on these mat-
ters. Gordon stated that Respondent would only recog-
nize the committee as a liaison committee to discuss em-
ployee problems. Brunner at this session expressed no ob-
jection to Respondent's refusal to discuss wages and
benefits with the committee. The parties then discussed
discipline, and Brunner suggested that the three grounds
for immediate discharge should be a front-end accident,
drinking on the job, or stealing. Brunner proposed that a
grievance procedure be instituted to dispose of other
types of employee misconduct, such procedure consisting
of management's sending a letter, having a meeting to
discuss the problem, and then making a decision on a
penalty. Respondent's officials made no response to
Brunner's proposals, and no agreements were reached.
On January 4, 1980, Brunner sent a letter to Respond-
ent requesting on behalf of the liaison committee a meet-
ing to be held on January 8, and asking that he be noti-
fied if this were possible. A meeting was confirmed for
January 8 as requested.
On January 7, Mercandante sent a letter to Brunner re-
questing that, in view of possible disciplinary action
against Ost, an alternate committeeman be selected to
attend the January 8 meeting. Ray Pirnat was appointed
to replace Ost and he attended the meeting along with
the other participants who attended the November 19,
1979, session.
At the January 8 meeting, Brunner began by bringing
up the subject of wages and other improvements in bene-
fits. John Mercandante replied that wages and benefits
were not proper subjects for discussion. Brunner protest-
ed, stating that Gordon had given the committee the title
of liaison committee, and that the employees therefore
could bargain on all subjects. Gordon then informed the
committee that Respondent's little black book that the
employees had received ' contained their wages, scales,
and rules and regulations and added that "this book is
what we are going to go by for this year." Brunner re-
sponded that this was not a meeting for negotiations, and
there was no real semblance of negotiations going on.
Gordon replied that they were a liaison committee and
not a grievance committee and that they should not be
concerned with these things. Brunner then responded
that Gordon was wrong.
The subject of employee discipline was then brought
up. After some discussion, Gordon handed out to each
committee member a copy of a sheet entitled "Disci-
pline." The sheet contains an extensive five-step disci-
plinary procedure, consisting of informal interviews, re-
minders to employees, written warnings, meetings with
management representatives, sending an employee home
without loss of pay, and a final warning that if there is
one more incident the Company will have no choice but
to dismiss the employee, culminating in dismissal after
the fifth step. Gordon informed the committee that this
was the procedure that Respondent was going to follow
from that time on in disciplining its employees.
Shortly after the January 8 meeting, Respondent sent a
notice to all its employees. The notice, signed by Mer-
candante, stated that, in a meeting held on January 8
with Brunner, Danzi, and Pirnat, Respondent recognized
and acknowledged the committee as the representative of
its employees pertaining to grievances in work problems.
The letter added that Respondent did not want to
enter into negotiations over wages, and that this was not
the purpose of the committee. Finally, Respondent con-
cluded by stating that an annual review of wages was its
company policy, and that for 1980 this was the afforda-
ble package.'
Several days later, Brunner was designated by the em-
ployees to discuss with John Mercandante the issue of
Respondent's compelling its employees to purchase new
uniforms. Brunner met alone with Mercandante on this
subject, told him that it was a hardship for the employ-
ees to have to pay for uniforms, and suggested that Re-
spondent should go halfway. Mercandante replied that
he would think about it.
The next day, copies of a notice were placed in the
mailboxes of Respondent's employees. The document,
addressed to all operators, notified them that the new
uniforms would be fitted on March 12, and informed
them of the discussion with Brunner concerning the cost
of the uniforms. The notice added that, as a result of
such discussions, beginning January 1981 Respondent
would give each employee a clothing allowance of 75
per year.
Shortly after the January 8 meeting, Gordon went to
the dispatcher's office and spoke with Buelhmeir.
Gordon said that Brunner was too much trouble at these
meetings and that nothing got done. He added that at
Prior to this meeting Respondeint had distrihulcd to its emplosee a
black hook describing Respondent's wages and rules and regulations It
also set torth Respolndent's s ige ilcreases for arious categlrics of
work effective Januar I. 1980.
5Apparenly referrinig lo the icrease, set frth in its black book presi-
ously distributed ti cripl', es
988
LEISURE TIME TOURS. INC.
these meetings Brunner was arrogant, and spoke to the
Mercandantes in a loud and boisterous manner. Gordon
suggested that Respondent should have Brunner re-
moved from the committee, and added that they would
be better off without him on the job.
Subsequent to this conversation, Gordon told Pirnat
that Brunner did not belong on the committee because of
his personality.
Following the January 8 meeting, the committee mem-
bers reported to the employees the results of the meeting
and Respondent's refusal to discuss wages and other
items. Brunner and Pirnat recommended that, since the
committee had no real bargaining power, the employees
should seek outside help and try to contact a union.
Pirnat suggested and made the initial contact with the
Union in late January. The subject of the Union was dis-
cussed among the employees of Respondent during the
months of January and February. Pirnat obtained author-
ization cards from the Union and distributed them to a
number of employees in early March.
On March 9, Pirnat gave five cards to Brunner to dis-
tribute to other employees. Frey was given his card by
Pirnat and signed it on March 10. Brunner signed his
card on March 12.6
Beginning in late January and continuing through
March, Buehlmeir was repeatedly questioned (on a
weekly basis) by the Mercandantes and/or Gordon con-
cerning Buehlmeir's knowledge of the union activities of
Respondent's employees. They asked Buehlmeir during
these conversations which of Respondent's employees he
thought were involved inl union activities and Buehlmeir
responded that he did not know.' During one of these
conversations, Gordon told Buehlmeir that the union
thing coming in would be the worst thing that could
happen to the Company.
During at least five or six of these conversations,
Gordon informed Buehlmeir that Respondent suspected
that the members of the grievance committee were in-
volved with the Union. In addition, in a number of such
conversations, Gordon indicated to Buehlmeir that he
thought that Frey might be one of the employees who
instigated the Union. Gordon also specifically mentioned
Brunner as another employee who he thought was in-
volved in organizing the Union. Additionally, Gordon
speculated to Buehlmeir that Pirnat may have been in-
volved with the Union, as well as employees Tomiello,
Wood, Ost, and Danzi.
In one or two of these discussions, Buehlmeir was
asked by Gordon and Mercandante what he thought Re-
spondent could do to keep the Union out. Buehlmeir re-
plied that he believed that, if they wanted to keep the
i The testimony of Pirnat and Brunner as somevs hal confused and in-
consistent concerning the subject of ", hen and where cards sere ditrib-
uted and signed. I discredit Brunner', testimony that he received signed
cards from other employees f Respondent prior to his discharge on
March 12. The record reveals that all the cards submitted by the Union
to the IBoard in coinnection with the related representation case. with the
exception of the cards of Frey and Brunner. ,ere dated subsequent to
March 12 (Three cards where dated March 13. to .here dated March 14.
eight were dated March 15. and one as dated March I Thus. I find it
unlikely that runlner could have recclced any signed cards from cm-
ployees prior to that ime as he estified.
'The, also told uehlmeir that they had heard that the eplolce,
were talking ahoul the Union
Union out, more money for the employees and a drivers'
room would be the best place to start. Gordon replied
that money was tight.
On the evening of March 10, Brunner was assigned the
Atlantic City run for the next day. This was the first
time that Brunner had ever been assigned to perform any
of Respondent's Atlantic City runs. His only prior expe-
rience or training with respect to Atlantic City runs was
on about January 28 when he accompanied a regular At-
lantic City driver on his route and observed this driver
handling passengers and tickets. The route assigned to
Brunner in March was different from the one he had ob-
served in January, with different stop locations. Al-
though the basic functions of the Atlantic City runs were
similar to other line runs that Brunner had performed
previously, the ticket designations and colors were differ-
ent for the Atlantic City run and contained a letter code
with which Brunner was not familiar. In addition, Atlan-
tic City drivers often encountered passengers who pre-
sented large bills with which to pay for the $13.50 fare,
and for which the drivers would have to make change,
and this would cause potential confusion for a driver un-
familiar with the run.
When Brunner was notified of his assignment, he pro-
tested to Buehlmeir that he should not have been as-
signed to this run, and claimed that he was unfamiliar
with the route. He asked Buehlmeir to call Gordon and
relay such message to him. Buehlmeir then called
Gordon at his home and transmitted Brunner's request to
be taken off the run. Gordon replied that Mercandante
wanted Brunner to perform this run and that he wanted
everyone to know the Atlantic City run and no changes
would be made. Buehlmeir relayed Grodon's answer to
Brunner. Brunner told Buehlmeir that he felt that the as-
signment was a trap or a setup, as the penalties were too
great for miscounting and misappropriating moneys.'
Brunner added that he knew it was a setup, but that he
hated to ruin his good attendance record, so he would
pull the run and find out what was up.
On the same day that Brunner was to perform the At-
lantic City run (March II), Ken Ost, a driver with less
seniority than Brunner, was assigned to a charter run
from Verona, New Jersey, to New Preston, Connecti-
cut.9
Brunner performed the Atlantic City run on March 11
as ordered. At his first stop, he picked up three or four
passengers who already had purchased tickets. He called
in the count to Gordon as required. As he was unfamiliar
with the route, he asked Gordon for directions to his
next stop. Gordon had begun giving directions when em-
' ruinner testified that at the January committee meeting he said to
Mercandante that it as unfair for Respondent to assign the Atlantic Cit)
run ,to soreone that they wanted to get rid of and then "hang him" with
his count. Brunner could not recall any other employee who had been
fired for problems ,on this run, but he did state that employees had been
disciplined ,r miscounts on the Atlantic City run. In fact. as %.ill be seen
/?I-au. emnplo)ec Ost as suspendedl fr 3 da>s on Januar> 7. 1980, for
niilsuse of funds on an Atlantic Cils rute
As oted. sertlirit is normallv follo, ed in the assignment of
chartrrs No explaation was offered hb Respotnderlt whyl (st a, as-
signed to this charter contrar to its normal proiedure of gi ing Brunner
ia, he senior dri ser first preferrcte for clhartr run Hutiehlmeir. in fact.
testified tha t liruitner %.ils a etittled to te harter thai ()s, Sas assigned Io
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee Richard Shaw, overhearing the conversation over
the radio, interrupted Gordon, and corrected certain of
the directions Gordon had given.
At the next stop, seven passengers boarded and Brun-
ner called in the count to Gordon, and received direc-
tions to his next destination, Clark, New Jersey. At
Clark, Brunner, for the first time that day, sold a few
cash fares. Brunner then proceeded to Union, New
Jersey, after again receiving directions from Gordon.
There were some 10 people waiting to board the bus at
Union, and several passengers handed him bills of $20
and $50 to purchase their fares. At Union and his next
stop, Woodbridge, New Jersey, Brunner encountered dif-
ficulties with couples separating and with a female pas-
senger who stated that her husband would pay for her
and, when the next passenger in line stepped up, Brunner
learned that the man was not her husband. Thus, Brun-
ner, at Woodbridge, ended up with a dashboard full of
money and tickets and was unable to keep an exact count
of the ticket receipts. Gordon kept asking Brunner for an
exact count during these stops, and Brunner responded
that he was unable to do so at the time because he was
busy and that he would give him a count in Atlantic
City. On one occasion after being asked again by
Gordon for an exact count, Brunner replied, "I can't col-
lect fares, collect tickets, drive this bus and talk to you at
the same time." At that moment, John Mercandante in-
terrupted, ' ° and commanded Brunner to pull the bus
over to the side and give him a count immediately. Brun-
ner complied; he pulled the bus over, counted his fares,
and gave the count to Mercandante, adding, "Don't hold
me to it."
When Brunner arrived in Atlantic City, it was deter-
mined that his count was off by one. His count was 45,
and he had passed out 46 tickets. He then called the
office and informed Respondent of the error and the cor-
rected count.
Upon his return from the Atlantic City run, he re-
ceived a note in his mailbox from Gordon, ordering him
to be in the office the next day, March 12, at I 11 a.m. and
to bring all materials belonging to Respondent with him.
The note continued that failure to report would be con-
sidered a resignation, effective immediately.
The next day, March 12, Brunner signed his union
card at 8 a.m. at Respondent's premises. He decided not
to see Gordon, but to talk instead to John and Gerald
Mercandante. "
Brunner went into John Mercandante's office at 9 a.m.
Both John and Gerald were present. Brunner pulled out
the note from Gordon and asked if they knew anything
about it. John responded that he knew about it. Brunner
then said that he guessed that the note was from manage-
ment and not personnel. John responded, "That's right,"
and asked for Brunner's resignation, stating that he
would be fired if he did not resign. John added that, as
far as he was concerned, Brunner had driven his last Lei-
sure Time bus. Brunner asked why. John answered that
"' It should be noted that Mercandante's office is in another building,
and that he is normally not present in the dispatcher's office.
" Brunner testified that he was hired hy Mercandante and, if anyone
was going to dismiss him. it would have to be Mercandante as far as he
wAas concerned.
it was Brunner's attitude. Brunner, thinking that John
was referring to the Atlantic City run, explained the
problems that he had encountered and the confusion that
had ensued the previous day, and suggested that, if either
of the Mercandantes had run this route for the first time,
they would have had similar problems.
John Mercandante responded, "Your attitude in gener-
al is bad. You have always been against company policy.
You doubt the judgment of the company, and all in all,
you rub our personnel man the wrong way."
Brunner then stated that, since he had the next day off
anyway, Respondent should reconsider its decision and
he would return the next day for their final answer. The
next day, Brunner again met with the Mercandantes.
John began the conversation by asking for Brunner's res-
ignation immediately. Brunner asked if they could keep
him on until he found another job. John responded, "We
don't owe you a goddam thing."
Neither John nor Gerald Mercandante, in either of the
two meetings with Brunner, gave him any specific expla-
nations or examples of his alleged bad attitude, his being
against company policy, his doubting the judgment of
the Company, or his alleged rubbing Gordon the wrong
way.
Following Brunner's discharge, Gordon prepared an
operator's incident report dated March 11, 1980, stating
that Brunner was "insubordinate and uncooperative re-
garding methods of which the dispatcher communicates
with operators while monitoring South bound progress
of an Atlantic City line service trip. His conduct was not
normal to his general ability to perform his duty." The
form indicates that disciplinary action was taken after an
interview with the Mercandantes, but does not specify
what disciplinary action was instituted.
A second undated document was also prepared by
Gordon, listing Brunner's termination as March 13, 1980,
"due to his indifference towards the company goals,
rules and superiors." Neither of these documents was
given to Brunner.
Prior to his termination Brunner had received no disci-
pline or warnings during his 7-year period of employ-
ment at Respondent. On two occasions, in 1978 and
1979, Brunner was spoken to by Gordon about com-
plaints made about him by passengers. Brunner gave an
explanation for each of these incidents, which were ap-
parently accepted by Respondent, since no written
memorandum was kept of the incidents, nor was he dis-
ciplined in any way as a result of such incidents, or
warned that any discipline might be taken against him
should such incidents occur again.
Brunner's personnel file contained some 18 letters of
commendation from various charter groups and passen-
gers on charters driven by Brunner. These letters praised
Brunner's performance in various respects, finding him
to be courteous, excellent, pleasant, efficient, wonderful,
thoughtful, patient, friendly, skillful, helpful, gracious,
considerate, and exhibiting other such similar characteris-
tics.
On the bottom of one of these letters, dated August 1,
1979, Gordon wrote a note to Brunner stating as follows,
"The original letter has been filed into your personnel
990
LEISURE TIME TOURS, INC.
file. Thank you for representing our Company again in
such a manner."
On February , 1980, Gordon wrote a memo to Brun-
ner, reflecting that a letter had been received from a cus-
tomer commending Brunner for a good job in his per-
formance. The memo concludes, "A bus load of kids, 12
Adults and Leisure Time Tours thank you for such [an]
effort."
As noted above, Frey signed his card on March 10.
He signed it in the morning in the garage of Respond-
ent's premises, and returned it to Pirnat. Frey testified
that at the time Gordon was in an area (an office with an
open glass window) where he could have seen Frey sign-
ing his card. However, Frey could not tell whether
Gordon was looking at him when he signed his card or
when he returned the signed card to Pirnat.
After signing his card, Frey went out on a run to At-
lantic City. When he returned to Respondent's premises
in the evening he went to his mailbox to receive his next
day's assignment. Instead he received a note from
Gordon, instructing him to report on March 11 at I p.m.,
and to bring with him all his materials that belonged to
Respondent. Frey reported to Gordon on March 11 as
instructed. Gordon began the conversation by asking if
he had brought all his equipment as requested. Frey said
that he had and asked what the note was all about.
Gordon replied that there was a ticket missing from his
Atlantic City run and that he had to know where it was
and where the money was. Frey responded that if
Gordon thought Frey had stolen money Gordon should
call the police. Gordon refused and said he was going to
have to let Frey go. Frey pressed for the reason, and
Gordon answered that he had a bad attitude, was not
Leisure Time material, and was incompetent. Gordon
also opened up a file of applications and told Frey that
he had three people waiting to get Frey's job. Frey
denied that he had stolen the ticket and began to explain
what had happened 2 days before, when Gordon wrote
out a receipt for Frey for the equipment that he had
turned in and the conversation ended.
Frey performed the same Atlantic City run 2 or 3 days
prior to March 10. At Woodbridge, a very busy stop
with a lot of passengers buying tickets, two men got on
the bus together. One man bought a ticket and the other
already had one. After a few other passengers entered
the bus, the first man said to Frey that he had not been
given a ticket although he had paid for one. Frey gave
him another ticket, but immediately got on the radio
with Dan Mercandante, Respondent's morning dispatch-
er, and explained that he felt that he had just been hus-
tled out of a ticket. Mercandante told him not to make
any trouble and to go to Atlantic City. On March 10,
these same two men appeared again at Woodbridge, and
Frey suspected that one of them used the ticket that
Frey had been "hustled" out of 2 days before. Thus,
Frey believed that this accounted for his being short
$13.50 (the price of one ticket) for his March 10 run.
The operators' incident report dated March 11, 1980,
signed by Gordon, indicates that Frey was interviewed
and discharged for "incompetence and violation of Com-
pany Regulation, Section VII Article 3." 12
Prior to his termination Frey had not received any
prior suspensions or other disciplinary actions, nor had
he received any warnings of future disciplinary action.
There were a couple of occasions when he was spoken
to by Gordon about some problems during the course of
his employment. On January 21 Gordon commented to
Frey that his "tie should be buttoned up to his collar."
Frey replied that he was not working yet and had just
walked in the door. Gordon wrote up an operator's inci-
dent report dated January 21, stating that he had spoken
with Frey regarding his appearance. "namely his tie was
hanging over the second button down from the collar
button." The report indicated that no disciplinary action
was taken and that Frey said he would fix his tie and he
did.
In February 1980, Gordon spoke to Frey twice about
shortages in toll receipts. Respondent gives its drivers a
$10 advance for tolls and they are required to return the
amount not spent, along with receipts for the tolls actual-
ly paid. On February 12, Frey returned $1.50 to Re-
spondent, but his receipts only showed $7.50. Thus he
was $1 short. Frey replied that he could not understand
what happened, as $8.50 was the proper amount of tolls
for the trip. Two days later Frey was again $1 short in
his receipts and was again spoken to about the problem
by Gordon. At no time during either of these discussions
did Gordon warn Frey that any disciplinary action was
contemplated by Respondent should these problems
recur.
Gordon wrote an operator's incident report on the
above incidents, stating that he talked with Frey regard-
ing his inconsistency with recordkeeping; namely, his in-
accurate account of expenditures. The report continued
that 2 days later the same situation occurred and that this
time Frey was offended because he felt Respondent had
accused him of stealing. The report indicated that no dis-
ciplinary action was taken. No mention was made in the
incident report that Frey received any warnings during
these discussions.
Neither of the above-described operator's incident re-
ports was given or shown to Frey.
Respondent's records revealed that employee Tom Pe-
evers improperly used company money on August 7 and
December 20, 1979, and January 8, 1980, and no disci-
plinary action was taken against him. On January 24, Pe-
evers used company money for his personal use ($120),
and, according to an operator's incident report dated
January 24, he was suspended for 3 days for violation of
company rules, section VII, article 3.
In addition, Peevers also had a letter of complaint in
his file dated August 1, 1979, from a customer complain-
ing that he dropped two women off at 9:30 p.m. at a toll
booth on the Garden State Parkway, rather than the reg-
"? Respondent's rules and regulations. sec. VII. art . .slties. All
monies that are required o be accounted fir must he turned in dail "
Attached to the report was a more detailed description of the incident,
indicating that a ticket was old on March 7. but that the stub was not
used until March It, at hich time Frey ',as one ticket short on his
count The report also included Frey's explanation. suggesting that he felt
that on March 7 he was "hustled" out of the ticket h the palssenger
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ular stop where the customers had boarded. The custom-
er requested that the driver be reprimanded for this inci-
dent. No disciplinary action was taken against Peevers
for that conduct. 13
Respondent's records also showed that employee Ken
Ost was given a 3-day suspension on January 7 for mis-
using company funds on the Atlantic City run. Respond-
ent's operator's incident report dated January 7 and the
testimony of Gordon confirmed that this was the third
time that Ost had misused company funds, that the third
time this occurred the amount in question was $193, and
that Ost had received verbal warnings prior to this occa-
sion.
On March 26, the Union filed a petition to represent
Respondent's drivers and maintenance employees in Case
22-RC-8181. On the same day that the petition was
filed,'4 Respondent met with its drivers and announced a
raise in salary for the Atlantic City run to $40 per run.
This amounted to a $4 increase on such trips. No expla-
nation was offered by Respondent as to why the increase
was granted at this time. The record revealed that nor-
mally Respondent gives raises in January of each year.
The election was held on April 30 and a Certification
of Results of Election issued on May 13. Brunner served
as the Union's observer and voted in the election.
IV. ANALYSIS AND CONCLUSIONS
A. Dominick Brunner
In considering the legality of Brunner's discharge it is
necessary to evaluate Respondent's conduct in light of
the Board's test of causality set forth in Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980).
The General Counsel contends that the evidence ad-
duced is sufficient to support an inference that protected
conduct (Brunner's support and activities on behalf of
the employee grievance committee and on behalf of the
Union) was a "motivating factor" in Respondent's deci-
sion to terminate him. I agree.
Brunner was known and acknowledged by Respondent
to be the leading employee organizer and spokesman for
the employee grievance committee. Respondent was
clearly antagonized by and annoyed at Brunner for his
role in such activities, particularly Brunner's insistence
that the committee should be empowered to discuss
wages and other benefits with Respondent contrary to
the adamant position taken by Respondent's officials on
this subject. Thus, Gordon told Buehlmeir that Brunner
was too much trouble at these meetings and that nothing
got done. He added that Brunner was arrogant and
spoke in a loud and boisterous manner at these meet-
ings.5 Gordon then suggested that Respondent should
:1 In fact, on the bottom of a copy of the letter, which was apparently
given to Peevers Gordon wrote, "I know this is an exception to your
daily operation to and from Atlantic City, because we receive many good
reports from folks who ride with you to Atlantic City. "
" The record contains no evidence that Respondent was aware of the
fact that the petition was filed prior to announcing and granting this in-
crease to its employees.
'" No evidence was presented by Respondent that in fact runner swas
arrogant, loud, or boisterous at any of these committee meetings. Even if
such evidence were forthcoming, "[w]here ... the conduct in issue is
closely intertwined with protected activity, the protection is not lost
have Brunner removed from the committee, and that
they would be better off without him on the job.
After the committee proved unsuccessful in redressing
the employees' main concerns, primarily because of Re-
spondent's refusal even to discuss with the committee,
over Brunner's frequently expressed objections, the issues
of wages and benefits, the employees then discussed
among themselves and eventually sought union represen-
tation to obtain their demands. Brunner was involved in
these discussions among the employees concerning union
representation. Although there is no direct evidence of
Respondent's knowledge of Brunner's union activities,
the record conclusively establishes that Respondent
strongly suspected Brunner to have been a union sup-
porter. Thus, Gordon, on several occasions during the
months of January through March, expressed to Buehl-
meir that he suspected that the members of the grievance
committee were involved with the Union.' 6 Additionally,
on more than one occasion Gordon specifically men-
tioned to Buehlmeir that he thought Brunner was in-
volved in organizing the Union.
It is well settled that a discharge because an employer
suspects that an employee is engaged in union activity is
prohibited. " As the Board has held, "[W]hether or not
[the charging party] . . . engaged in union activity is ir-
relevant. The only pertinent inquiry is whether Respond-
ent acted in the belief that [the charging party] was so
engaged." Riverfront Restaurant, a Corporation Trading as
Riverfront Restaurant & Dinner Theatre, 235 NLRB 319,
320 (1978).
Thus, it is clear from this record, and I so find, that
Respondent, based on its knowledge that Brunner was
the leader of the employee grievance committee, suspect-
ed that Brunner was a union supporter, 8s and demon-
strated animus and antagonism towards him for such
conduct.
An examination of Respondent's alleged reasons for
terminating Brunner, as well as the procedure it followed
in implementing the discharge, further supports an infer-
ence of discriminatory motivation. As noted, none of Re-
spondent's officials testified concerning the reasons why
it decided to terminate Brunner. Respondent's discharge
form reflects that he was fired due to his indifference to-
wards company goals, rules, and supervisors. Respondent
argues that these comments relate to Brunner's actions
on the Atlantic City run when he was allegedly insubor-
dinate to Gordon and refused to give Gordon the proper
count when requested to do so. However, when Brunner
was informed of his discharge, he was told that his atti-
tude in general was bad, that he was always against com-
pany policy, that he doubted the Company's judgment,
unless the impropriety is egregious." Union Carhide Corporation. 171
NLRB 1651, fn. I (1968); Ibairmont Hotel Company. 230 NLRB 874
(1977). Thus, since Brunner's alleged arrogance and boisterous talk oc-
curred in the context of his act as spokesman for the employee com-
mittnce, and has not been shown to be "egregious." I find Respondent was
antagonistic towards Brunlner because of his protected concerted activity.
Ei As noted, Brunner was chief spokesman for the grievance colmmit-
tee
r Crucible, Inrc.. Division of 'Colt Indiluriev. In.., 228 NL RB 721 (1977):
Suburban Chevrolet. Inc.. 254 NLRB 228 (1981): ialax Apparel Corpora-
trin, 247 NLRB 159 (1980).
, See Suburhan Chevrolet, upra.
992
LEISURE TIME TOURS. INC.
and that he rubbed Gordon the wrong way. Thus, it is
clear that the problems on the Atlantic City run were
not the real reasons for the discharge. Respondent made
no explanation of the circumstances in which Brunner
was against company policy, doubted ccmpany judg-
ment, had a bad attitude, or rubbed Gordon the wrong
way. In fact, the only evidence in this record of Brun-
ner's doubting company policy or judgment related to
Brunner's protected concerted activity of pressing the
views of the employee grievance committee that all sub-
jects should be bargainable contrary to Respondent's
adamant position. The only evidence of Gordon's having
been rubbed the wrong way by Brunner related to this
activity engaged in by Brunner and Gordon's suggesting
to Buehlmeir that Brunner be removed from the commit-
tee, and that Respondent would be better off without
him on the job.
In addition, Brunner was the most senior employee
employed by Respondent, who he had been previously
offered the position of supervisor, and he had in his file
18 letters of commendation from customers and 2 written
compliments from Gordon, while never receiving any
written or oral warnings from Respondent. Contrast
Brunner's treatment with that of employee Tom Peevers,
who was not disciplined at all until he received four
written warnings from Respondent between August 7,
1979, and January 24, 1980, for improper use of company
money, at which time he was merely suspended for 3
days. Additionally, on August 1, 1979, Peevers received
a letter of complaint from a customer about his leaving
two passengers stranded on the Garden State Parkway.
Not only was Peevers not disciplined for this conduct,
but Gordon also wrote on the bottom of the letter that
"this is an exception to your daily operation . . . because
we receive many good reports from folks who ride with
you to Atlantic City. "It is interesting to note how Re-
spondent reacted to this incident in August 1979 prior to
any union or concerted activity, and how it reacted to
Brunner's conduct in March 1980 with a record of 18
complimentary letters in his file.
Moreover, Respondent, in discharging Brunner, failed
to follow any of the steps in its disciplinary procedure
instituted by it and announced to employees by Gordon
at the January 1980 grievance committee meeting. This
departure from the prescribed termination procedures
supplies further evidence of Respondent's discriminatory
intent in discharging Brunner. 19
In the case of Charles Batchelder Company, Inc., 250
NLRB 89 (1980), the Board reversed the decision of an
administrative law judge on facts similar in many re-
spects to the facts herein. Thus, in Batchelder as here, the
charging party was a long-term valued employee whose
achievements had been recognized by the employer,
whose conduct was no more than other employees not
discharged, and who was never warned that his conduct
might cause his discharge. Thus, the Board made the ob-
servation, which I find equally applicable herein, that it
was unlikely that respondent viewed the misconduct of
the charging party, if viewed by respondent as miscon-
9 Butler-Johnson Corporation. 237 NLRB 88 (197); C75 Keen. Inc.
247 NLRH 1016 (Il80)
duct at all, as such egregious conduct to cause summary
dismissal of a valued long term employee.
Accordingly, based on the foregoing, I find that the
General Counsel has established that Brunner's activities
on behalf of the grievance committee and his suspected
involvement in the Union were motivating factors in Re-
spondent's decision to terminate him. Respondent, having
adduced no evidence to explain or justify its actions in
discharging Brunner, has therefore not met its burden of
demonstrating that the same action would have taken
place even in the absence of the protected conduct. 2 0
I find therefore that Respondent has violated Section
8(a)(1) and (3) of the Act by its discharge of Brunner.
The complaint also alleges that Respondent assigned
Brunner to less desirable work than that to which he
previously had been assigned (the Atlantic City run) be-
cause of his union and protected activities. The record
reveals that Brunner, as most senior man, was entitled to
first choice on charter runs, and that his March 10 as-
signment was the first time he was assigned to the Atlan-
tic City run. Brunner complained about the assignment
to Buehlmeir since he was not familiar with the route,
which required different and more difficult ticket collec-
tion procedures than charter work, which Brunner pre-
ferred and was entitled to receive. In addition, on the
day of Brunner's assignment employee Ost was assigned
a charter route, which Brunner was entitled to receive
under Respondent's procedures. 2
Accordingly, I find that this assignment to Brunner,
occurring without regard to seniority and contrary to
Respondent's past practice, 22 without any explanation by
Respondent as to why it chose to make this assignment
at that time, and in the context of Brunner's protected
activities as set forth above, was made by Respondent in
retaliation for Brunner's having engaged in such activi-
ties, and in order to create the setting for his eventual
discharge. 2' Therefore, Respondent, by this conduct, has
additionally violated Section 8(a)(1) and (3) of the Act.
B. John Frey
Although Frey was not one of the grievance commit-
tee members, he did sign the petition and did support the
committee's formation. He also was suspected by Re-
spondent of being a union adherent, as evidenced by
Gordon's statements to that effect to Buehlmeir. Addi-
20 I agree with Respondent's counsel that Wright Line. supra. does not
impose upon Respondent a burden of presenting witnesses, and that it can
meet its burden of demonstrating that it would have taken the same
action against an employee, absent his union activities, solely on consider-
ation of the General Counsel's eidence. However, in the instant case I
find that the General Counsel s evidence presents a strong inference of
discriminatory motivation. and that Respondent, by failing to present any
evidence. explanation, or justification for its actions, has therefore not
met its burden as required by Wright Line:, supra.
' Note that Respondent's own supervisor, Buehlmeir. testified that
Brunner should hase been assigned to the charter given to Ost.
'2 See New Procers Gear. Division of Chrysler Corporation. 249 NtI.R
1102 (19801): Groendvke Transport. Inc. and Ann .Myer Bell dhia Bell
lransport Company, 204 NLRB 96 (1973}
!: Thai Respondent seized upon a relatively minor and insignificant in-
cident that occurred during the course of Brunner's operating the Atlan-
tic City run in order tlo discharge Brunner unlawfully. as found above.
lends further support to my conclusion that the assignment to perform
this run s.as dcrinintatoril motivated as Is ell
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionally, he signed his authorization card on March 10,
the day before he was discharged by Respondent.2 4
Similar to Respondent's treatment of Brunner, Re-
spondent again failed to follow its established disciplin-
ary procedure in terminating Frey.25
Finally, Frey was discharged without any prior warn-
ings, where other employees had not been discharged
and had received lesser or no discipline for similar and in
fact more serious misconduct prior to the advent of the
Union. Thus, Frey was terminated, according to Re-
spondent's records, due to incompetence and violation of
a company rule, section VII, article 3.26 Since none of
Respondent's officials testified as to what Respondent
considered incompetent about Frey's performance, it is
necessary to examine section VII, article 3. This section
of Respondent's rules and regulations specifies that rec-
ordkeeping must be complete and accurate and that all
moneys that are required to be accounted for must be
turned in daily. As noted above, employee Peevers was
written up four times for misuse of company funds from
August 1979 to January 1980, and then only after the
fourth incident, consisting of the personal use of $120 of
Respondent's money, was he merely suspended for 3
days under the same section Vll, article 3, utilized to
support Frey's discharge.27 Similarly, employee Ost was
only suspended for 3 days on January 7 for using compa-
ny funds after two prior verbal warnings, and after mis-
using $193 of Respondent's money.
Frey, on the other hand, was terminated for an inad-
vertent error of $13.50 (the price of one ticket) after he
gave an explanation to Respondent that he had been
"hustled" out of this money by a passenger 2 or 3 days
before March 10. It is quite significant to note that he ex-
plained this fact to Respondent's dispatcher on March 7
and was told at that time (before he signed his authoriza-
tion card) not to make any trouble, and to complete the
run.
Respondent's more lenient treatment of Peevers and
Ost, who committed more serious offenses than Frey,2s
occurred prior to the advent of any union activity at Re-
spondent's premises. It is certainly reasonable to infer,
which I do, that this disparate treatment was motivated
by the appearance of the Union and by Frey's suspected
and actual invovlement in activities on behalf of the
Union.
4 Although Frey's testimony did not conclusively establish that
Gordon actually saw him sign his card, his uncontradicted testimony that
Gordon was present in an office from which he could see Frey signing
the card justifies an inference, absent a denial by Gordon. that Respond-
ent observed such activity. Riverfront Restaurant. supra: Joseph Pollack
Corp.. 232 NLRB 825 (1977).
25 See cases cited in fn. 19 above.
es At the time of his discharge, when Frey pressed Gordon for the
reason for his termination, Gordon answered that he had a bad "atti-
tude." that he was not Leisure Time material, and that he was incompe-
tent.
27 As noted above. Peevers also had a letter of complaint in his file
from a customer complaining about his leaving two passengers on the
Garden State Parkway, and not letting them off at their proper stop.
2- Thus. Peever's and Ost's conduct involved the loss of significantly
more money than in Frey's case and appears to have been intentional acts
of personally using Respondent's money, rather than being unable to ac-
count for one ticket because of being "hustled" by a passenger, as was
the case with Frey
Based on the foregoing, I find that the General Coun-
sel has made a showing that Frey's protected concerted
activity was a motivating factor in Respondent's decision
to discharge him. Wright Line, supra.
I also find that Respondent has failed to demonstrate
that it would have taken the same action against Frey in
the absence of his engaging in union activities. Again,
Respondent has not presented any witnesses to explain or
justify its characterization of Frey as incompetent, not
Leisure Time material, or as having a bad attitude. No
evidence was presented that Respondent has ever termi-
nated any employees for the conduct engaged in by Frey
and, to the contrary, as set forth below, the record dem-
onstrates that prior to the Union's appearance employees
committing more serious and frequent violations of the
same company rule allegedly violated by Frey received
no discipline or lesser forms of discipline short of dis-
charge.
Accordingly, I find that Respondent's discharge of
John Frey violated Section 8(a)(1) and (3) of the Act.
C. The Wage Increase
The parties stipulated that on March 26, 1980 (the
same day the petition was filed), Respondent granted to
its employees a wage increase of $4 on the flat-rate trip
to Atlantic City. The General Counsel alleges that this
wage increase was instituted for the purpose of under-
mining the union organizing campaign in violation of
Section 8(a)(1) of the Act.
Respondent, on the other hand, contends that the Gen-
eral Counsel has not established a prima facie case of un-
lawful motivation, and notes that no evidence was pre-
sented that Respondent was aware of the filing of the pe-
tition when it granted the increase.
I agree with Respondent that the evidence does not es-
tablish that it was aware of the filing of the petition
when it announced its wage increase, and I do not infer
that Respondent was so aware. However, contrary to
Respondent's position, the inquiry does not end there.
There is a presumption of the illegality of a wage in-
crease granted by an employer where it occurs after the
employer acquires knowledge of the union campaign,
even when a petition has not yet been filed. 29 In circum-
stances where, as here, the timing of the wage increase
coincides with the origination of union activity, absent
an affirmative showing of some legitimate business
reason for the timing, it is not unreasonable to draw the
inference of improper motivation. 30
As set forth above, Respondent proffered no economic
justification for the increase, nor did it otherwise explain
the purpose or timing of such action. In these circum-
stances alone, an inference would be justified that the
raise was unlawfully motivated. However, additional evi-
dence in the record further supports such a finding, and
conclusively demonstrates, in my judgment, the unlawful
purpose of Respondent's wage increase. Respondent's
normal practice was to grant wage increases in January
of each year, and such an increase was granted as per
Y Rich' of Plymouth. 1nc., 232 NLRB 621 (1977).
:. Grandee Beer Distributors. Inc.. 247 NLRB 1280 (1980): Neiiport Divi-
Iion of Winrex Kitting Mill. Inc.. 216 NLRB 1058 (1975)
994
LEISURE TIME TOURS. INC.
usual in January 1980. When the employee grievance
committee in November 1979 and in January 1980 re-
quested additional wage increases, Respondent refused to
discuss it with them, except when Gordon stated in Janu-
ary that Respondent's black book distributed to employ-
ees contained Respondent's employee wages and scales,
and added that "this book is what we are going to go by
for this year." Additionally, Respondent, in its letter to
employees in early January, stated that the raise granted
in January 1980 was the affordable package for 1980.
Furthermore, in various discussions concerning the
Union between Buehlmeir and Gordon, Gordon asked
Buehlmeir what he thought Respondent could do to
keep the Union out, and Buehlmeir's response was "more
money for the employees." Gordon at that time replied
that "money was tight."
It is obvious that on March 26, when the union cam-
paign was at its height, 3 ' and after Respondent had un-
lawfully discharged two employees as found above, Re-
spondent, suddenly finding that money was not "so
tight" and that it could afford a wage increase, was moti-
vated by a desire to undermine the Union's organizing
drive, and I so find.
Accordingly, by granting a wage increase to its em-
ployees on March 26, Respondent has violated Section
8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By unlawfully discharging Richard Frey and Do-
minick Brunner on March 11, 1980, and March 13, 1980,
respectively, and by unlawfully assigning Brunner less
desirable work on March 10, 1980, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. Respondent has violated Section 8(a)(1) of the Act
by granting a wage increase to its employees on March
26, 1980.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged em-
ployees Frey and Brunner, I shall recommend that Re-
spondent be required to offer John Frey and Dominick
Brunner immediate and full reinstatement to their former
positions of employment or, in the event that such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and to make them whole for any loss of earn-
1' The Union had obtained 16 authorization cards from Respondent's
employees between March 10 and March 16.
ings and other benefits they may have suffered because
of Respondent's discrimination against them. Their loss
of earnings shall be computed as prescribed in F W.
Woolworth Company, 90 NLRB 289 (1950), plus interest
as set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
Nothing in this recommended Order shall be construed
as requiring Respondent to withdraw. vary, or abandon
any wage increase or benefits which it may have granted
to its employees.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 32
The Respondent, Leisure Time Tours, Inc., Mahwah,
New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Granting wage increases and benefits to its employ-
ees in order to induce them to withdraw their support
from United Transportation Union.
(b) Discharging its employees, assigning to its employ-
ees less desirable work, or otherwise discriminating
against its employees because of their activities on behalf
of the Union or because said employees engage in other
protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer John Frey and Dominick Brunner immediate
and full reinstatement to their former jobs or, if their
former jobs no longer exist, to substantially equivalent
jobs, and make them whole for any loss of pay and other
benefits they may have suffered by reason of their un-
lawful discharges in the manner set forth in the section
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 to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Mahwah. New
Jersey, copies of the attached notice marked "Appen-
dix."33 Copies of said notice, on forms provided by the
12 In the eent no exceptions are filed as pros ided bh 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 4 of the Rules and Regulalions. be adopted by the Hoard and
become its findings, conclusions, and Order, and all oblections hereto
shall be deemed waived fr all purposes
:: In the eent that this Order is enforced b a Judgment of a United
Slates Court of Appeals the words ill he notice reading Po',lted hb
Order of the National Labor Relation, Board" hall read "IPoslted Pursu-
ant to a Judgmentl of the United State. Court of Appeal, Linfoircilg an
Order of the National Labor Rlatilon, Board "
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 22, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon reveipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
996