88 Transit Lines

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 177 (N.L.R.B. 1990)

177
300 NLRB No. 21
88 TRANSIT LINES
1 We agree with the judge that the Respondent’s change in the drivers’
schedule violated Sec. 8(a)(3) and (1) of the Act. The judge also found that
this conduct did not violate Sec. 8(a)(5). The General Counsel excepts, noting
that the complaint does not allege an 8(a)(5) violation. We find merit in the
General Counsel’s exception and therefore find it unnecessary to pass on the
judge’s discussion of this nonexistent allegation.
2 We grant the General Counsel’s limited exceptions relating to the modi-
fication of the judge’s recommended Order. Thus, we shall modify the judge’s
recommended Order to conform more closely with those findings and conclu-
sions that we are adopting. We shall also issue a new notice.
3 The negotiating sessions occurred on December 11 and 30, 1987, and Jan-
uary 12 and 16, February 16, March 10, 24, and 31, May 10, and June 2 and
28, 1988.
88 Transit Lines, Inc. and Teamsters Local Union
No. 872, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO. Cases 6–CA–
20490, 6–CA–20984, and 6–CA–21380
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 4, 1989, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed limited exceptions and a
supporting brief. Both the Respondent and the General
Counsel filed reply briefs to the other party’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.2
1. The judge found that the Respondent, by its over-
all conduct between November 1987 and June 1988,
violated Sections 8(a)(5) and (1) and 8(d) of the Act
by engaging in bargaining with the Union without an
intention of reaching agreement. We disagree.
In finding that Respondent engaged in surface bar-
gaining the judge relied primarily on the infrequency
of the meetings coupled with the Respondent’s insist-
ence, without an explanation, on meeting solely during
business hours (which in effect limited the negotiations
to only 3 hours because the drivers on the negotiating
committee went to work at 1 p.m.). The judge dis-
missed as an excuse the Respondent’s refusal, citing
business reasons, to meet on consecutive days, particu-
larly in light of the Union’s willingness to meet out-
side business hours. Moreover, the judge found the
personal reasons that allegedly impeded the Respond-
ent from meeting outside work to be a pretext designed
to hide its true motivation, namely, the delay and frus-
tration of the bargaining process. The judge found that
these factors, when considered in conjunction with the
Respondent’s adamant refusal to agree to certain union
proposals, the Respondent’s concern that all proposals
be reviewed by its attorney, as well as its insistence on
having the minority stockholders participate in the ne-
gotiations, reflected the Respondent’s negative attitude
towards the negotiations. Contrary to the judge, we
find that the totality of the Respondent’s conduct
throughout the course of the negotiations, at most,
demonstrates hard bargaining on the Respondent’s part
and not a calculated desire to frustrate the bargaining
process and avoid agreement with the Union.
Following the Union’s certification, Robert Lackner,
the Union’s representative, spoke to Aldo Nones, Re-
spondent’s president and majority stockholder, to re-
quest a meeting of the parties. Nones informed the
Union that the Respondent was willing to meet only
during business hours. The Respondent refused to meet
with the Union on the weekends or evenings citing
personal reasons, which were not explained to the
Union. The parties met 11 times between December
11, 1987, and June 28, 1988. The meetings usually
took place in the mornings starting at 10 o’clock and
ending at 1 o’clock in the afternoon.3 Although during
the negotiating sessions the Union continued to insist
that the parties meet at more frequent intervals and
outside business hours, the Respondent refused. Nones
also insisted that all three management officials be
present at the negotiations and refused to agree to any
proposals before the Respondent’s attorney had been
consulted.
At the initial bargaining sessions little progress was
made in terms of specific contract proposals. However,
negotiations on contract proposals became more fruit-
ful after the Union filed for mediation and Federal me-
diators participated in the negotiations; indeed at the
last meetings substantial progress was made.
We do not find that the Respondent’s request to
meet only during business hours or its failure to ex-
plain to the Union the reasons for its position unrea-
sonable. There is no question that Nones’ wife was ill
and therefore that he had a legitimate nonbusiness rea-
son that impeded his meeting outside work. He was
not obligated to disclose that reason to the Union. Fur-
ther, the number of meetings is only significant when
considered together with the fact that most of the
meetings lasted only from 10 a.m. to 1 p.m. The judge
failed to accord any significance to the fact it was the
Union’s insistence on the presence of the drivers that
led to the relatively short meetings. Thus, it was the
Union that was responsible for adjourning the meetings
at 1 p.m. because the drivers had to work, thereby, ef-
fectively limiting the meetings to only 3 hours. The
Union could have sought to extend the meetings after
1 p.m. without the drivers. There is no evidence that
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Atlanta Hilton & Tower, 271 NLRB 1600 (1984).
5 Further, the parties could have met on April 21 had Lackner not refused
to meet on that day.
the Respondent would have opposed such an exten-
sion, as long as it did not go beyond business hours.
Even if the presence of the drivers at the negotiating
table was important because of their knowledge of the
operations, there were issues that could have been ne-
gotiated solely by the Union’s representative without
requiring the drivers’ presence. In fact there were oc-
casions when some of the drivers did not attend the
negotiating sessions and bargaining continued. In addi-
tion, the Union dictated meeting starting times, arguing
that its drivers could not arrive before 10 o’clock in
the morning. Again, the Union could have agreed to
meet earlier if it had so wished. Further, it is undis-
puted that Nones made accommodations in the drivers’
schedules to allow for their participation in the nego-
tiations.
Nor was the Respondent’s failure to meet more fre-
quently unlawfully motivated. There is no evidence
that conflicts with the Respondent’s claim that meeting
more frequently would have affected its operations.
Further, we find that 11 negotiating sessions in a 7-
month period is not unreasonable.4 Even when consid-
ered with the Respondent’s insistence that the parties
meet only during working hours, this time frame might
have sufficed had it not been for the Union’s ending
of the meetings at 1 p.m.5 Under these circumstances,
we find that the Respondent was not solely responsible
for the limited time the parties spent at the bargaining
table.
The judge also relied on Nones’ insistence on hav-
ing the principal stockholders participate in the nego-
tiations as well as on consulting with his lawyer prior
to agreeing to any proposals. The judge found that this
position inhibited the negotiation process and that the
insistence on deferring to the Respondent’s attorney
was tantamount to failing to designate an agent with
bargaining authority at the negotiations. However, as
the judge acknowledged, Nones had authority to nego-
tiate a contract and in fact did reach agreement with
the Union on a number of issues. The fact that Re-
spondent was preoccupied with ensuring that the lan-
guage of the proposals truly reflected the parties’ in-
tent, and that he consulted with his attorney to achieve
that end, is not tantamount to failing to designate a
bargaining agent at the negotiating table. This is par-
ticularly true here because this was the first time the
Respondent had been involved in any collective-bar-
gaining process and the Respondent was not being un-
reasonable in proceeding in a cautious manner. As to
the participation of the minority stockholders, Nones
had every right to choose who would be on its negoti-
ating committee just as the Union selected its own
committee. There is no evidence that the Respondent’s
insistence on their presence affected the scheduling of
the meetings.
The judge’s conclusion that the Respondent was
seeking to evade reaching an agreement was based also
on his findings with respect to the Respondent’s un-
willingness to agree to the ‘‘common ‘boilerplate’ lan-
guage’’ of various proposals made by the Union. This
finding in part reflected the testimony of Union Rep-
resentative Lackner, who complained about the Re-
spondent’s refusal to agree to what Lackner regarded
as perfectly acceptable ‘‘boilerplate’’ language from
Teamsters agreements that comprise the Union’s initial
bargaining proposal. Because, under Section 8(d) of
the Act, the Board is constrained from making findings
that would effectively compel a party to agree to par-
ticular proposals or make particular concessions, a
fortiori, we risk running afoul of Section 8(d) if we
predicate a finding of bad faith on a party’s refusal to
agree to the exact language of the other party’s pro-
posals. Indeed, a major function of the bargaining
process is reaching common ground that represents
modifications of language contained in parties’ initial
proposals.
Of course, if a party is so adamant concerning its
own initial positions on a number of significant man-
datory subjects, we may properly find bad faith
evinced by its ‘‘take-it-or-leave-it’’ approach to bar-
gaining. NLRB v. General Electric Co., 418 F.2d 736,
756–757 (2d Cir. 1969), cert. denied 397 U.S. 965
(1970). Furthermore, there may be cases in which the
substance of a party’s bargaining position is so unrea-
sonable as to provide some evidence of a bad-faith in-
tent to frustrate agreement. NLRB v. A-1 King Size
Sandwiches, 732 F.2d 872 (11th Cir. 1984), cert. de-
nied 469 U.S. 1035 (1984). See also Reichhold Chemi-
cals, 288 NLRB 69 (1988). But these extremes of con-
duct are not evident here.
While the judge was correct in finding, with respect
to the discharge and discipline article, that the Re-
spondent did not agree to the Union’s ‘‘just cause’’
language, it is not the case that the Respondent was re-
sisting agreeing to any contractual limitations on its
discharge and discipline authority. Instead, the Re-
spondent sought to provide specific grounds for imme-
diate discharge in the contract. There is no evidence
that the Respondent was disposed to resist any modi-
fications whatsoever in the language of its own pro-
posal. Indeed, it had been reaching agreements with
the Union on other matters that reflected movement
from the Respondent’s initial proposals. For example,
the ‘‘probationary period’’ article proposed by the Re-
spondent on March 31 included language from both
parties’ proposals, with the Respondent agreeing to a
somewhat shorter period than it had proposed and also
to the provision from the Union’s proposal that an em-
ployee who had successfully passed the probationary
period would immediately be given seniority retro-
17988 TRANSIT LINES
6 We reach this conclusion despite our adoption of most of the judge’s find-
ings regarding a number of unfair labor practices committed by the Respond-
ent. The judge did not find that these violations impeded bargaining nor do
we. Thus, we find that even though some of these violations involved unilat-
eral changes in mandatory subjects of bargaining, they were not of such mag-
nitude as to have an impact on the negotiations.
7 The judge inadvertently failed to include in his remedy a requirement that
Respondent make employees whole for any losses employees may have suf-
fered as a result of the unlawful changes in the schedule and the unilateral
changes with respect to the reimbursement of lodging and other expenses. The
judge’s remedy is amended to provide that the Respondent shall make employ-
ees whole for any losses they may have suffered as a result of these unlawful
actions as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
actively dating back to his original date of employ-
ment. Similarly, the grievance procedure agreed on
June 28 included a modification of the filing limits that
reflected the Union’s position (counting by ‘‘working
days’’ rather than ‘‘calendar days’’). There is no evi-
dence that the other agreements reached—on such sub-
jects as scope of agreement, portions of the manage-
ment-rights clause, stewards clause, workdays, non-
discrimination, and holiday payments and procedures—
deviated from this pattern of reaching agreement on a
position that represented movement by both parties.
While the record supports the finding that the Re-
spondent was unwilling to agree to union security and
dues checkoff, at least as of the last bargaining session,
we cannot find that a failure to make these concessions
to the Union is a sufficient manifestation of intent to
avoid agreement, given the Respondent’s approach to
bargaining on other topics. See Tritac Corp., 286
NLRB 522 (1987).
Finally, we disagree with the weight given by the
judge to statements made by two of the Respondent’s
representatives at the early ‘‘get acquainted’’ bar-
gaining sessions (in December 1987) to the effect that
the negotiations were a waste of time. At least one of
the statements appeared not to be a response to bar-
gaining generally, but the result of momentary pique at
what was viewed as a demand by the Union that the
Respondent agree to the Union’s entire initial contract
proposal. Furthermore, the judge himself found that
subsequent bargaining sessions produced agreement on
a number of issues and that the final bargaining ses-
sion on June 28, 1988, was the ‘‘most productive
meeting’’ of all. In light of this actual conduct, we
cannot find that those initial off-the-cuff remarks are
sufficient evidence of an intent to avoid genuine bar-
gaining.
In sum, when the record is considered as a whole,
the evidence falls short of establishing surface bar-
gaining on the Respondent’s part. Accordingly, we
find the General Counsel has not met his burden of
demonstrating the surface bargaining violation.6 There-
fore, we dismiss this allegation of the complaint.
2. The judge found that the Respondent violated
Section 8(a)(5), as well as Section 8(a)(3) and (1),
when it demanded that employee Gregory Smith se-
cure the original of the physical examination form re-
quired for his recertification. Although we agree, for
the reasons set forth by the judge, that the Respondent
violated Section 8(a)(3) and (1) by requiring employee
Smith to secure the original of his physical exam, the
Respondent did not in any way suggest that other em-
ployees had to follow that practice. The evidence indi-
cates that the Respondent’s unlawful request was di-
rected solely at employee Smith and was not a change
in policy. Therefore, we cannot agree that the Re-
spondent’s actions constituted a unilateral implementa-
tion of policy which violated Section 8(a)(5). See, e.g.,
Cable Vision, 249 NLRB 412, 416 (1980), enfd. 660
F.2d 1 (1st Cir. 1981). Accordingly, we dismiss this al-
legation of the complaint.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 5.
‘‘5. By suspending employee Gregory Smith for
failure to obtain the original of his physical examina-
tion form in retaliation for his union activities, the Re-
spondent engaged in unfair labor practices in violation
of Section 8(a)(3) and (1).’’
2. Delete paragraph 7 and renumber the subsequent
paragraph.
ORDER7
The National Labor Relations Board orders that the
Respondent, 88 Transit Lines, Inc., Charleroi, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to close operations if its employees
voted for the Union, and unqualifiedly prohibiting em-
ployees from talking about union business on company
property and on company time.
(b) Making changes in the drivers’ schedules in re-
taliation for their union activities.
(c) Unilaterally making changes in the terms and
conditions of employment of the employees in the bar-
gaining unit found appropriate, including changes relat-
ing to reimbursement, lodging, and other expenses, un-
less and until it notifies Teamsters Local Union No.
872, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO of such an intention and gives that labor or-
ganization an opportunity to bargain over any such
changes.
(d) Suspending employees for failure to obtain their
physical examination forms in retaliation for their
union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule prohibiting employees from
unqualifiedly discussing union business on company
time or company property.
(b) Rescind work schedule C and reinstate schedule
B.
(c) Rescind, on request, the November 1988 policy
regarding reimbursements for lodging and other ex-
penses to drivers assigned to charter runs to Atlantic
City, New Jersey, and reinstate the policy that existed
before November 1988.
(d) Make whole its employees for any loss of earn-
ings and other benefits they may have suffered and ex-
penses they may have incurred by reason of the unlaw-
ful change in schedule and the unlawful change in its
policy regarding reimbursement for lodging and other
expenses, in the manner specified in the remedy sec-
tion of the judge’s decision as modified herein.
(e) Make Gregory Smith whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner specified in the
remedy section of the judge’s decision and remove
from its files any reference to his unlawful suspension,
and notify him in writing that this has been done and
that the suspension will not be used against him in any
way.
(f) Preserve and, on 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
records necessary to analyze the amounts due under
the terms of this Order.
(g) Post at its Charleroi and Speers, Pennsylvania fa-
cilities copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
have violated the National Labor Relations Act and
has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to close our opertations if
you vote for the Union or unqualifiedly prohibit you
from talking about union business on company prop-
erty or on companytime.
WE WILL NOT change your driving schedules in re-
taliation for your union activities.
WE WILL NOT unilaterally change your terms and
conditions of employment, including changes relating
to reimbursement, lodging, and other expenses, without
notifying Teamsters Local Union No. 872, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO of such
an intention and giving the Union the opportunity to
bargain over any such changes.
WE WILL NOT suspend you for failure to obtain your
original physical examination form in retaliation for
your union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights guaranteed by Section 7 of the Act.
WE WILL rescind the unlawfully implemented rule
prohibiting you from unqualifiedly discussing union
business on company time or company property.
WE WILL rescind the unlawfully implemented sched-
ule C and reinstate schedule B.
WE WILL, on request, rescind the November 1988
policy regarding reimbursements for lodging and other
expenses to drivers assigned to charter runs to Alantic
City, New Jersey, and reinstate the policy which ex-
isted before November 1988.
WE WILL make you whole for any loss of earnings
and benefits suffered and expenses incurred by reason
of the unlawful change in schedule and the unlawful
change in policy regarding reimbursement for lodging
and other expenses, plus interest.
WE WILL make Gregory Smith whole for any loss
of earnings and other benefits resulting from his one
18188 TRANSIT LINES
1 The General Counsel’s unopposed motion to correct transcipt dated Feb-
ruary 7, 1989, is granted and received into evidence as G.C. Exh. 11.
2 All following dates will be in 1987 unless otherwise indicated.
day suspension, plus interest, and WE WILL notify him
that we have removed from our files any reference to
his suspension and that the suspension will not be used
against him in any way.
88 TRANSIT LINES, INC.
Julie R. Stern, Esq., for the General Counsel.
Jason S. Shapiro, Esq., of Harrisburg, Pennsylvania, for the
Respondent.
Stephen Jordan, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Pittsburgh, Pennsylvania, on De-
cember 12 and 13, 1988. Subsequent to an extension of the
filing date, briefs were filed by the General Counsel1 and
Respondent. The proceeding is based upon charges filed No-
vember 16, 1987,2 and May 17 and November 4, 1988, by
Teamsters Local Union No. 872, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO. The Regional Director’s consolidated
complaint, dated December 6, 1988, alleges that Respondent
88 Transit Lines, Inc., of Charleroi, Pennsylvania, violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by promulgating and maintaining a ruling prohibiting em-
ployees from discussing unions on Respondent’s property; by
impliedly threatening to close its facility before allowing a
union to represent its employees; by altering the work sched-
ule of its employees because of the union activity of some
employees; and by laying off its employee Herbert Wise be-
cause of his union activities; that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally implementing
a policy requiring employees to sumbit original physical ex-
amination forms and by unilaterally changing its lodging and
expense payment policy for charter runs to Atlantic City,
New Jersey; and that Respondent violated Section 8(a)(1)
and (5) and Section 8(d) of the Act by advising the Union
it would only negotiate during business hours; by refusing to
negotiate unless all of Respondent’s negotiators were present;
by describing negotiations as a ‘‘waste of time’’; by refusing
to meet on consecutive days, weekends, during evening
hours, or at reasonably frequent intervals; by refusing to en-
gage in meaningful negotiations regarding certain union con-
tract proposals; and by unilaterally instituting a new on-call
procedure.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in operation as both a local and
interstate common carrier of passengers by motor vehicle. It
derives annual gross revenues in excess of $1 million, and
it admits that at all times material it has been an employer
engaged in operations affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. It also admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates both a subsidized commuter
route operations between Pittsburgh, Brownsville, Charleroi,
and California, Pennsylvania, and intra- and interstate charg-
er services, which include frequent trips to and from Atlantic
City, New Jersey. On September 4, 1987, the Union filed a
petition seeking to represent a unit of all full-time and reg-
ular part-time busdrivers, mechanics, office clerical employ-
ees, and cleaners/washers employed by the Employer. A mail
ballot election was held between October 13 and 28, 1987,
and a majority of the Respondent’s approximately 30 em-
ployees voted in favor of representation and the Union was
certified as the exclusive collective-bargaining representative
as of November 9, 1987.
Aldo Nones serves as Respondent’s president and general
manager, Edward Burnworth is supervisor of maintenance,
and Stanley Nabozny is secretary-treasurer as well as being
in charge of sales and tour operations. All three are share-
holders of the Company.
Driver Gregory Smith was the primary force behind the
organization drive, which began in August 1987. He was as-
sisted by Louis Cella, Russell Klose, Timothy Theakston,
Herbert Wise, and Larry Boyd in distributing authorization
cards. During the period of the organizational campaign, Re-
spondent mailed numerous letters to its employees urging
them to vote against the Union.
Theakston testified that at the end of September, he and
Nones had a conversation during which Nones told him that
Respondent could not operate under a union, and that not
ony his job but everyone’s job depended on how the vote
went. In early November, Nones also told Theakston not to
talk about union business on company property or on
companytime. Klose testified that he was present during this
conversation and confirmed what was said by Nones (em-
ployees had not previously been told of any subjects about
which they were prohibited to speak). Several employees tes-
tified that they previously had discussed other nonwork-re-
lated subjects in the presence of supervisory personnel during
worktime on company property without repercussions.
Shortly after the ballot count on October 29, the drivers
were given a new schedule, designated ‘‘Schedule C,’’ to
take effect on November 29. No attempt to bargain with the
Union was initiated regarding the new schedule. For several
years prior to this time, ‘‘Schedule B,’’ had been in effect
and it provided for 15 different jobs with each job was made
up of a number of runs. The jobs were assigned following
a bid which awarded jobs based on seniority and a new bid
was conducted every 4 months. The change to ‘‘Schedule
C’’ realigned and consolidated a few runs and eliminated one
driving position; however, most of the routes remained es-
sentially unchanged. Only 8 of these 14 jobs, however, were
open for bid whereas all 15 of the jobs under schedule B had
been bid jobs. The remaining six were run on what is called
‘‘extra board’’ when the run is assigned to a driver on the
day before the run is scheduled. Nones testified that the
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change had been contemplated and worked on for a number
of months and was an outgrowth of a statement from the
Local Transit Authority that the Company should take steps
to reduce its operating costs. There was no decrease in com-
muter business at this time and no scheduled runs were
eliminated but were merely rearranged so that there were
only 14 jobs. Driver testified that the extra board driver is
not able to predict what his work schedule will be each
week, nor can he expect the same salary each week.
In early November, prior to certification, the Union’s sec-
retary-treasurer and principal officer, Robert Lackner, called
Nones and indicated its opposition to the change and it was
discussed in subsequent bargaining sessions after it had taken
effect.
Shortly before schedule C became effective, Respondent
laid off the three drivers with the least seniority, including
employee Herbert Wise. Wise, who has discussed the Union
with other employees, attended union meetings, signed an
authorization card, and voted in the election, was the only
one of these three employees who had a regular bid job.
Nones testified that it was a standard practice to furlough
drivers in November or December when there is a seasonal
decline in traffic and that all three were recalled in April
1988 when work picked up. Respondent record show that
this occurred every year from 1982 on, except for 1984.
Wise acknowledged that the previous year he had voluntarily
requested lay off for the winter and that he did not tell any-
one that he wished to be treated differently in 1987.
On December 2, Nones left a note for driver Smith, who
had become the union steward, stating that he couldn’t work
the next day as his physical certificate had expired. Smith
knew of Federal regulations requiring a physician’s examina-
tion and certification every 2 years and had received his
exam from the Company’s usual doctor on November 25,
Smith explained to Supervisor Nabozny that he had complied
and showed Nabozny his green card (which reflected his up-
to-date physical examination), and told him he had a photo-
copy of the physical examination report at home. He also ex-
plained to Nabozny that the doctor’s receptionist would not
give him the certificate but had said that she would mail it
to the Company. Nabozny checked with Nones by telephone,
then told Smith that Nones wouldn’t accept the green card
and that he wanted Smith to take the day off and go down
to the doctor’s office and get it straightened out himself.
When Smith went to the doctor’s office, and asked for the
original certificate, the receptionist acted upset and told him
Nones had already called and been told the original certifi-
cate had previously been mailed out. After another doctor’s
employee called the Respondent, Smith was told they now
would accept a photo copy from te doctor’s records and that
Smith could bring it to the Respondent’s office. Smith lost
1 day of work but was returned to his regular schedule the
next day.
Following the Union’s certification, the parties met on 11
occasions between December 11, 1987, and June 1988.
When Lackner, the Union’s secretary-treasurer, first con-
tacted Nones to make arrangements for bargaining, a con-
versation confirmed by letter, Nones told Lackner that Re-
spondent would only negotiate during business hours and
would not meet during evening hours or on weekends due
to undescribed personal commitments. Lackner said he was
willing to meet at any time, at any place and indicated that
while he was not accepting the restrictions Nones placed on
the timing of negotiation sessions, he would agree to sched-
ule their first meeting during business hours. He told Nones
that he planned to discuss the scheduling dispute further, and
stated as much in his follow up letter to Nones. Details re-
lated to negotiations are set forth in further detail in the dis-
cussion below.
By letter dated March 22, 1988, Respondent notified em-
ployees of a new on-call policy for employees on layoff sta-
tus which required laid-off employees to be available by tele-
phone during certain hours, so that Respondent could reach
them to assign work as it became available. The Union was
not consulted before this policy was announced but after
Lackner raised the issue with Respondent it was discussed at
the negotiation session on March 24, 1988, and the policy
was rescinded, however, drivers who received the notice ap-
parently were not directly informed of the rescinsion.
Prior to early November 1988, drivers who had to stay
overnight in Atlantic City, a frequent charter trip destination,
stayed in the same hotel as the passengers and were fully re-
imbursed by Respondent for the cost of his hotel, as well as
for the cost of taxi fare between the area where the hotels
are located and a bus holding area designated by local au-
thorities. In early November 1988, again without consulting
the Union, Respondent changed its policy for its Atlantic
City runs. Respondent ceased reimbursing drivers for taxi
fare, and only reimbursed drivers for hotel expenses up to
the amount it would cost to stay in a hotel located across the
street from the bus holding lot. The drivers were not required
to stay at the hotel near the holding lost, but any cost for
lodging over the amount of the established rate at that hotel
were to be paid by the driver.
III. DISCUSSION
The issues in this case arose from the events surrounding
a union organizational drive at Respondent’s bus company
and the Union’s subsequent certification as the employee’s
bargaining representative. As indicated here, the Company
aggressively opposed the Union’s efforts and engaged in sev-
eral acts alleged to be unfair labor practices both before and
after the election and the Union’s certification. In addition,
it is alleged that Respondent was reluctant to recognize or
accept the Union’s function in acting on behalf of the em-
ployees and that its overall conduct inhibited meaningful col-
lective-bargaining negotiations and indicated a lack of good-
faith bargaining.
A. Alleged Violation of Section 8(a)(1), (3), and (5)
I credit the testimony of driver Theakston that Respond-
ent’s president told him that the Company could not operate
with a union and that his and everyone’s jobs depended on
how they voted. Although Nones denied making the state-
ment, he otherwise testified that he spoke with employees
about the Union, was careful about what he said, but could
not remember if he spoke with Theakston. Theakston’s recall
was specific and the statement allegedly made by Nones is
consistent with the context and tenor of the several letters
(G.C. Exh. 8) that he sent to employees. These letters em-
phasis that employees should vote no, that no union can
force it to grant a raise, that the Company would not be put
in a position to pay wages that would put it in an unsound
18388 TRANSIT LINES
position, and that it is not in the interest of the employees
to have a union. Accordingly, I find that Theakston’s testi-
mony shows that Respondent implicitly threatened to close
its operation if the employes voted in favor of the Union, an
action which is clearly designed to influence and interfere
with the union activities of employees. Accordingly, I con-
clude that Respondent is shown to have violated Section
8(a)(1) of the Act, as alleged, see Hedaya Bros., 277 NLRB
942 (1985).
Nones admits that he told driver Smith not to talk about
union business ‘‘or any other’’ to the mechanics on
companytime, on company property, and asserts that a work
rule was posted (for 1 week in 1986) which probihited em-
ployees from speaking to mechanics while they were work-
ing.
Here, there is no indication that Nones’ remarks were lim-
ited to Respondent’s asserted rule, and no qualification was
made in the order to Smith regarding speaking to mechanics
while they were working. Even to the extent admittedly stat-
ed by Nones, Respondent is shown to have issued an un-
qualified order prohibiting talking about union business on
companytime and on company property, a rule that clearly
is unduly broad and discriminatory, see Cerock Wire &
Cable Group, 274 NLRB 888 (1985). It otherwise is shown
that employees regularly discussed ‘‘cars, politics, and fam-
ily’’ in the presence of management, had not been told not
to, and had not been reprimanded. Accordingly, I find that
the stated rule interferes with employee’s rights and I con-
clude that the General Counsel has shown that the Respond-
ent’s oral promulgation of this rule violates Section 8(a)(1)
of the Act as alleged.
It is clear that a few days after the election, Respondent
announced a new scheduling procedure for drivers. This
schedule effected the condition of employment for many
drivers because it changed six former ‘‘bid’’ jobs to less de-
sirable ‘‘extra board’’ jobs. The Board has ruled that an em-
ployer who unilaterally changes terms and conditions of em-
ployment between the time of an election and a union’s cer-
tification does so at its own peril, Mike O’Connor Chevrolet,
209 NLRB 701 (1974). Here, the General Counsel has
shown that the Respondent displayed strong opposition to the
Union’s organizational efforts, including violations of em-
ployees’ rights, prior to this unilateral change in its long-
standing drivers’ operational schedule. This change was
made only a few days after a ballot count demonstrated that
the Union had succeeded in its organizational efforts, and I
conclude that this supports an inference that the employee’s
successful union activities were the motivating factor behind
Respondent’s implementation of a change in conditions of
employment designed to take effect prior to the actual certifi-
cation of the Union’s status as statutory representative’s of
the employees. Respondent principal defense alleges that the
change was founded on compelling economic reasons: name-
ly, better utilization of manpower and, second, instruction by
the transit authority to attempt to reduce cost on its sched-
uled route operations.
Nones testified that he had spent several months preparing
the new schedule; however, Respondent also contends that
the effect of the change is de minimis because it involved
merely the consolidation and realignment of two routes; and
the elimination of only 1 of 15 routes and driver positions.
No financial analysis was presented related to the compara-
tive schedule differences (although one route was eliminated,
additional time, and resulting cost would accrue to two other
routes), and I find that the generalized request by the transit
authority that the Company ‘‘attempt to reduce cost’’ falls
far short of proving that ‘‘compelling’’ economic reasons re-
quired a change. Accordingly, I find that the Respondent was
not free to make changes in the terms and conditions of em-
ployment when it did so by introducing its new work sched-
ule.
The Respondent, however, further argues that although the
Union’s representative called him about the new schedule
after it was posted and prior to certification, the Union failed
to thereafter demand bargaining on the matter and thereby
waived its rights by failing to pursue its opportunity despite
its knowledge of the change.
The record shows that subsequent to certification, the issue
of the scheduled changes became the subject of discussion
only after the charge relating to the matter was filed by the
Union at a bargaining session. Under these circumstances, it
appears that although the Union clearly had knowledge of the
Respondent’s unilateral changes, it took no affirmative action
to request a change, or to request or pursue bargaining on
that issue prior to or during contract negotiations prior to the
filing of a charge. The Union was obligated to act with due
diligence in requesting bargaining and having failed to avail
itself of its rights, I find that it has waived its rights to now
complain in this regard. Accordingly, I find that with respect
to these changes in terms and conditions of employment, Re-
spondent is not shown to have violated Section 8(a)(5) of the
Act as alleged, see Talbert Mfg., Inc., 264 NLRB 1051, 1055
(1982); and Citizens National Bank of Willmar, 245 NLRB
389 (1979).
Otherwise, however, I conclude that the reasons Respond-
ent’s alleged justification for the change in schedule, espe-
cially in view of the timing of the change immediately after
the Union won the election, are not persuasive, especially in
the absence of economic data and in the absence of any ex-
planation at all regarding the reason for changing so many
driver positions (8 out of 15), from regular bid jobs to those
on the ‘‘extra’’ board. Under these circumstances, I find that
the schedule change at this particular time was in retaliation
for and motivated by the Respondent’s displeasure with the
Union’s success in the election and, accordingly, I find that
Respondent violated Section 8(a)(1) and (3) of the Act in this
respect, as alleged.
The record shows that driver Wise signed a union author-
ization card and attended some union meetings, however, he
is not shown to have been a union activist nor is it shown
that the Respondent was aware of his union support. Al-
though Wise and two other employees were laid off on No-
vember 24, just prior to the time ‘‘Schedule C’’ became ef-
fective, all three were the least senior drivers, and the Re-
spondent has shown that the layoffs were based on seniority;
that it was a standard practice to furlough drivers for the
usual seasonal decline in business; and that all these drivers
were recalled when traffic picked up. Moreover, Wise pre-
viously had voluntarily told Respondent of his preference to
not work in the winter and did not indicate that he had
changed his position for the winter of 1987. Under these cir-
cumstances, I am not persuaded that Respondent’s layoff ac-
tions were discriminatorily motivated and I conclude that the
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel has failed to show that Respondent violated
Section 8(a)(1) and (3) of the Act in this respect.
Driver Smith not only was an active union organizer but
also acted as the Union’s observer at the taking of ballots on
October 29. When he learned of the necessity for his bian-
nual physical examination and certification, he promply fol-
lowed the Company’s usual procedures and, 1 full week
prior to the required date, had the exam performed by the
Company’s usual doctor and successfully obtained his per-
sonal ‘‘green card’’ and an assurance that the certificate
would be mailed to the Respondent.
Nones, in an unexplained fashion, became aware of the old
certificates pending expiration and the day before it expired
left a note for Smith. Smith asked Supervisor Nabozny what
was going on and told him that he had the physical and had
a green card to prove it as well as a photocopy of the new
certificate at home. Nabozny called Nones at home but
Nones would not accept the representation that Smith had
complied and demanded the original of the new certification.
He then imposed a new requirement that the employee
should take his last valid day under the old certificate, as a
day without pay, and assume the burden of obtaining for Re-
spondent the original certificate from Respondent’s regular
physician.
In this instance, the Respondent asserts that it was required
to have a certificate on file, however; its defense begs the
question of why Smith was required to personally attempt to
get the original rather than the Company’s procurring the
certificate in a normal business exchange between Respond-
ent and the doctor’s office, as had been done in the past. As
noted above, Respondent is shown to have feelings of union
animus, which it apparently extended to the Union’s orga-
nizer and observer Smith. Under these circumstances, I infer
that Respondent seized upon an opportunity to retaliate
against Smith because of his union activities, and I conclude
that Smith would not have been personally ordered to obtain
an original physician’s certificate and lose a day of work on
the last day of his old certificate were it not for his actions
and the success of the Union in the election. Accordingly, I
find that the General Counsel has shown that Respondent
violated Section 8(a)(1) and (3) of the Act in this respect, as
alleged. It also appears that the Union was not given a notice
and opportunity to bargain over this issue and, therefore, the
unilateral change in Respondent’s practice also is shown to
be in violation of Section 8(a)(5) of the Act. See Murphy Oil
USA, Inc., 286 NLRB 1039 (1987).
On March 22, 1988, the three laid-off drivers were sent
letters setting forth a new call-in procedure and a notice was
placed on the board. No notice was given to the Union, how-
ever, the Union learned about the new call-in procedure and
contacted the Respondent. Implementation of the procedure
was delayed until it was discussed at the following bar-
gaining session on March 24 and the letter was rescinded.
Although it is apparent that the Respondent improperly an-
nounced a procedural change without first notifying the
Union about it, the matter was subjected to bargaining and
was withdrawn without implementation. Otherwise, there is
no allegation that the new procedure was established in re-
prisal for the earlier union victory, as was the case in
Pennco, Inc., 212 NLRB 677, 684 (1974), cited by the Gen-
eral Counsel. Accordingly, I conclude that Respondent is not
shown to have violated Section 8(a)(1) and (5) and Section
8(d) of the Act as alleged. Otherwise, however, I find that
Respondent’s actions in this regard are indicative of an intent
to avoid its obligations to deal with the Union as the rep-
resentative of its employees.
During November 1988, Respondent implemented a
change in its practices regarding reimbursements for lodging
and taxi fares to its drivers in connection with charter bus
trips to Atlantic City. No effort was made to notify the
Union and no bargaining on the matter occurred. Respondent
contends (without citation of authority) that the employer’s
payment of such incidental expenses are not labor cost but
cost ‘‘associated’’ with its charter bus operations and that,
accordingly, such an exercise of control over fundamental
business cost (other than labor) are not mandatory subjects
of bargaining. Here, I find that reimbursement for lodging
and taxi fares for busdrivers on overnight trips to locations
remote from their residential area is an integral part of the
employment relationship and clearly falls within the terms
‘‘wages’’ and ‘‘conditions of employment,’’ see Florida
Steel Corp., 231 NLRB 923 (1977). Such reimbursement
clearly is a labor cost and a mandatory subject of bargaining
and, accordingly, I find that Respondent’s unilateral changes
in this respect are shown to violate Section 8(a)(1) and (5)
of the Act, as alleged.
B. Alleged Failure to Bargain in Good Faith
The complaint alleges that Respondent’s overall conduct
between November 1987 and June 1988 demonstrates a re-
fusal to bargain because Respondent advised the Union it
would only negotiate during business hours; it refused to ne-
gotiate unless all of Respondent’s negotiators were present;
it described negotiations as a ‘‘waste of time’’; it refused to
meet on consecutive days, weekends, during evening hours,
or at reasonably frequent intervals; it refused to engage in
meaningful negotiations regarding certain union contract pro-
posals; and it unilaterally made changes in mandatory sub-
jects of bargaining.
As noted above, during the Union’s first telephone con-
versation with Nones following certification, Nones stated
that he would meet with the Union only during business
hours and would not meet evenings or weekends due to un-
specified personal commitments. Respondent maintained this
position throughout the course of contract negotiations, de-
spite the Union’s repeated offers to meet at other times. As
a matter of practice, meetings generally occurred between 10
a.m. and 1 p.m. because the drivers on the negotiating com-
mittee had to take commuter runs into Pittsburgh early in the
morning and return from Pittsburgh in the midafternoon. All
meetings were held at Respondent’s office in Speers, Penn-
sylvania, and occurred on 10 occasions after an initial ‘‘get
acquainted’’ meeting on December 11. Respondent was rep-
resented by Nones, Burnsworth, and Nabozny and the union
representatives were Lackner and employees Smith, Cella,
and Danielchak.
Although Lackner requested that the parties meet more
frequently and in the evenings or on weekends so that the
meetings would not have to be cut short by the drivers’ work
schedule, Respondent refused because it ‘‘had a business to
run.’’ As the negotiations progressed, written proposals were
exchanged and the sessions began to be more productive, es-
pecially after the Union obtained a Federal mediator. The
parties agreed on some clauses such as the declaration of
18588 TRANSIT LINES
purpose and scope of agreement, probationary period, por-
tions of a management-rights clause, stewards’ grievance
procedure, work days, and nondiscrimination.
Despite his position as principal stockholder and oper-
ations manager, Nones explained that the scheduling of meet-
ings was difficult because it had been decided that as a result
of the split in stock ownership, as well as operating respon-
sibilities, all three management officials, Nones, Burnsworth,
and Nabozny, would have to be present at all negotiating
sessions. Similarly, Nones decided that his personal respon-
sibilities regarding his wife’s illness took precedence in the
evenings and on weekends; however, no effort was made to
convey the nature of this latter information to the Union.
Nones also took the position that he did not have the effec-
tive authority to enter into final agreements at bargaining ses-
sions and Respondent refused to agree to anything before it
had the opportunity to run it by its attorney. It also made no
apparent attempt to have the attorney attend the meetings or
to consult him by telephone during the meetings (the union
representative asserts that he had authority to make final
agreement at the bargaining table).
Nones testified that when he saw the initial bargaining
agreement proposed by the Union (an agreement described as
typical of others negotiated by the Union’s representative),
he had quite a reaction and thought it was one sided, in favor
of the Union. He admits that as a result of his feeling, he
made a statement to the effect that the negotiations were a
waste of time. This comment was reflected in notes Lackner
took at the December 11 meeting. His notes also reflect the
comment that Nones’ attitude was very negative and
antiunion, and that both Burnsworth and Nabozny followed
with the same attitude. Subsequently, at another session
when the parties were discussing a proposed union-security
clause, Burnsworth said that there would never be a closed
shop as long as he had anything to do with the Respondent,
and that as far as he was concerned the negotiations were a
waste of time.
After the initial ‘‘get acquainted’’ meeting, negotiations
actually occurred at meetings on December 30, 1987, Janu-
ary 12 and 26, February 16, March 10, 24, and 31, May 10,
and June 2 and 28, 1988. As can be seen from the dates list-
ed, on one occasion the parties had two meetings separated
by only 1 week, but on another occasion 40 days passed be-
tween two meetings.
Lackner’s testimony and supporting notes indicate that the
February 16 meeting was dominated by discussion of the
charge filed by the Union and Nones lengthy explanation of
how the Transit Authority operates and its relationship to the
Respondent. This discussion apparently was generated after
the Union suggested a talk about ‘‘Schedule B’’ versus
‘‘Schedule C.’’ At the following meeting on March 10,
Nones also spent time emphasizing a funding cut of $40,000
from the Transit Authority and said he couldn’t sign a con-
tract without a fail-safe program that would cover any future
cut in funding. He offered no proposal of his own but re-
quested suggestions from the Union and one union represent-
ative made a suggestion regarding payroll reduction through
cutting of Sunday runs.
Prior to the next meeting the Company made the unilateral
change in call-in rules otherwise discussed above and that
change was discussed and resolved at the meeting on March
24. Some contract proposals were discussed and several were
agreed upon, including a management-rights provision, how-
ever, the Company emphatically stated that it would not
agree to a union-security clause and that it did not want to
discuss it further. It also said that it wanted nothing to do
with dues checkoff. Respondent also refused to agree to the
inclusion of union-requested ‘‘just cause’’ language in the
otherwise agreed-upon discipline and discharge provisions.
The Union continued to object to the infrequency of the
meetings, and was met with the repeated response that Re-
spondent had a business to run and couldn’t meet more fre-
quently. The Union filed for mediation and a Federal medi-
ator attended the session on May 10. Alternate language for
several provisions was discussed including language that the
Union considered ‘‘boilerplate’’ regarding stewards. The spe-
cific clause in question read: ‘‘Stewards and alternates shall
have no authority to take strike action or any other action in-
terrupting the Employer’s business except as authorized by
official action of the Union.’’ The Company, however, took
the position that it wanted language that would hold the
Union liable for any action that the steward took relative to
any kind of strike issue, any kind of work stoppage, or
occurrance that might be detrimental to the Company. At the
end of that meeting, the Union repeated its request for more
timely meetings in the presences of the mediator and re-
ceived a response reiterating the same limitation against
meeting on evenings or weekends.
A different mediator attended the next session on June 2.
Agreements were reached on the stewards clause and on a
grievance procedure in a meeting that lasted until 1:20 p.m.
rather than the usual 1 p.m. adjournment. Respondent offered
to meet during the week of June 20; however, Lackner had
a conflict and the meeting was set for the following Tuesday,
June 28, despite Lackner’s desire that it be held prior to June
20.
The meeting of June 28 (attended by the second mediator)
was characterized by the Union as the most productive held.
It included agreements on several noneconomic subjects and
holiday payments and procedures; however, the Respondent
continued to disagree to ‘‘boilerplate’’ type language on the
subject of protection of employee’s rights.
The Board, in Reichhold Chemical, 288 NLRB 69 (1988),
recently reviewed and endorsed the summary of legal prin-
ciples set forth in Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984), which decision stated, in part:
It is necessary to scrutinize an employer’s overall
conduct to determine whether it has bargained in good
faith. ‘‘From the context of an employer’s total con-
duct, it must be decided whether the employer is law-
fully engaging in hard bargaining to achieve a contract
that it considers desirable or is unlawfully endeavoring
to frustrate the possibility of arriving at any agree-
ment.’’ A party is entitled to stand firm on a position
if he reasonably believes that it is fair and proper or
that he has sufficient bargaining strength to force the
other party to agree. [Footnote and citation omitted.]
Although an adamant insistence on a bargaining po-
sition is not of itself a refusal to bargain in good faith,
Neon Sign Corp. v. NLRB, 602 F.2d 1203 (5th Cir.
1979), other conduct has been held to be indicative of
a lack of good faith. Such conduct includes delaying
tactics, unreasonable bargaining demands, unilateral
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changes in mandatory subjects of bargaining . . . fail-
ure to designate an agent with sufficient bargaining au-
thority . . . and arbitrary scheduling of meetings. . . .
[Footnotes omitted.]
Here, I find that the Respondent placed arbitrary restric-
tions on the scheduling and conduction of meetings as evi-
denced by its adamant insistence on negotiating only during
regular business hours (which, in consideration of drivers’
work schedules, effectively limited meetings to the 3 hours
between 10 a.m. and 1 p.m.), and by refusing to meet more
frequently or on consecutive days, weekends, or evenings.
Respondent’s excuse of ‘‘business reasons’’ rings hollow in-
asmuch as the Union freely made itself available to meet at
times that would not have constrained normal business oper-
ations. In total, it appears that the Respondent approached
bargaining with extreme rigidity in its announced policy to
limit the time for meetings and it made no allowance for
consideration of any accommodation to promote and assist
bargaining. Compare Borg-Warner Controls, 198 NLRB 726,
729 (1972). Otherwise, Respondent never explained to the
Union the ‘‘personal reasons,’’ why its president, Nones,
couldn’t attend. I find that its purported justification is
pretextual and merely an excuse to hide the true motivation
for its behavior, namely, delay and frustration of the bar-
gaining process.
In a similar vein, Respondent’s rigid insistence that its mi-
nority stockholders, Burnsworth and Nabozny, be at most all
negotiations in addition to Nones, the controlling owner, and
its rigid position that its attorney review each item discussed
before it would agree to any proposal, clearly tend to inhibit
the progress of negotiations. While it is apparent that Nones
had the final authority to make agreements, he consistently
refused to exercise his authority and he purported to defer to
his attorney (who never attended any meetings) and his mi-
nority stockholders. This is comparable to failing to des-
ignate an agent with appropriate bargaining authority. When
it is viewed together with Respondent’s pattern of conduct in
its advoidance of meetings on consecutive days, weekly, or
at all frequently (a total of 11, 3-hour meetings over a 29-
week period), it demonstrates an arbitrary approach that is
inconsistent with the concept of good-faith accommodation
and appears to be designed to frustrate and prolong meaning-
ful bargaining.
As noted, both Nones and Burnsworth verbally acknowl-
edged their attitude toward the bargaining process by stating
that it was a waste of time. Respondent then proceeded to
conduct itself in such a way as to prove its self-fulfilling
prophecy.
When meetings actually occurred, the Respondent consist-
ently refused to recognize or accommodate the Union’s at-
tempt to use common ‘‘boilerplate’’ language. For example,
the Respondent refused to agree to any ‘‘just cause’’ lan-
guage in the discipline and discharge provisions. Also, the
Respondent announced its philosophical opposition to union
security and dues checkoff, and refused to discuss any such
provisions, even when the Union attempted to explore a lim-
ited union-security proposal.
While it is recognized that the concept of good-faith bar-
gaining does not require the yielding of positions fairly
maintained and it does not require concessions or agreement
on particular contract provisions, a respondent’s overall con-
duct and approach to bargaining must be evaluated in order
to determine its motivation in collective-bargaining negotia-
tions and whether its conduct displays a predetermination to
avoid or delay an agreement. Here, I find that the Respond-
ent’s approach to bargaining evidenced an inflexible attitude
on many minor, as well as major issues, with little effort to
reconcile differences, make accommodations, or exchange
concessions. See Borg-Warner Controls, supra, and Hospi-
tality Motor Inn, 249 NLRB 1036, 1040 (1980). Accord-
ingly, I conclude that the evidence of the Respondent’s gen-
erally fixed and inflexible approach to bargaining, especially
as colored by its expressed opinions that it was a ‘‘waste of
time,’’ supports an inference that Respondent was seeking to
avoid an agreement rather than reach a common ground with
the Union and its employees and, I find that its conduct is
inconsistent with good-faith bargaining.
Lastly, it is observed that on several occasions during the
course of negotiations, the Respondent engaged in conduct
away from the bargaining table (through its unilateral
changes in layoff procedures and, subsequently, lodging ex-
pense payments and through the unfair labor practices other-
wise discussed above) that reflects adversely on the appro-
priateness of its approach to bargaining. I find that a review
of Respondent’s total conduct relative to its responsibilities
to bargain in good faith consistently shows conduct incon-
sistent with good faith under the criteria of Atlanta Hilton &
Tower, supra, and under these circumstances, I conclude that
Respondent is shown to have violated Section 8(a)(1) and (5)
and Section 8(d) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and, at all times material, the
Union has been, and is now, the exclusive representative of
the employees at Respondent’s Charleroi and Speers, Penn-
sylvania facilities for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By implicitly threatening to close its operations if its
employees voted for the Union, and by unqualifiedly prohib-
iting talking about union business on company property and
on companytime, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act and thereby has engaged
in unfair labor practices in violation of Section 8(a)(1) of the
Act.
4. By unilaterally making a change in its drivers’ oper-
ations schedule in retaliation for the Union’s success in the
election, Respondent engaged in an unfair labor practice in
violation of Section 8(a)(1) and (3) of the Act.
5. By unilaterally implementing a change in the manner in
which drivers obtained physical recertification and by sus-
pending employee Gregory Smith in connection with the
change in certification procedures because of his activities on
behalf of the Union, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act.
6. By unilaterally changing its policy relating to reim-
bursement for lodging and other expenses, Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
18788 TRANSIT LINES
3 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
7. By its overall conduct between November 1987 and
June 1988, Respondent has refused to bargain collectively in
good faith concerning wages, hours of employment, and
other terms and conditions of employment in violations of
Section 8(a)(1) and (5) and Section 8(d) of the Act.
8. Except as found here, Respondent has not engaged in
any other unfair labor practices as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to make employee
Gregory Smith whole for any loss of earnings he may have
suffered because of the discrimination practiced against him
in accordance with the method set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 ( 1987),3 and
that Respondent expunge from its files any reference to his
suspension and notify him in writing that this has been done
and that evidence of the unlawful suspension will not be
used as a basis for future personnel action against them.
Having found that Respondent has refused to bargain in
good faith in violation of Section 8(a)(5) of the Act, I shall
recommend that Respondent be ordered to meet with the
Union and, on request, bargain collectively in good faith
concerning rates of pay, wages, hours of employment, and
other terms and conditions of employment of the employees
in the unit and, if an agreement is reached, embody it in a
signed contract.
Otherwise, it is not considered to be necessary that a broad
order be issued.
[Recommended Order omitted from publication.]