Acme Bus Corp.

National Labor Relations Board - Board Decisions

Dec 22, 1995

320 N.L.R.B. 458 (N.L.R.B. 1995)

458
320 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We note that although the Respondent unilaterally announced and
implemented these changes after the date of the election in which
the Union prevailed, the complaint does not allege a violation of
Sec. 8(a)(5).
No exceptions were filed to the judge’s dismissal of various alle-
gations of Sec. 8(a)(3) and (1), nor to his determinations that Charg-
ing Parties Theresa Cafaro and Garth Anthony Campbell were super-
visors.
We note that the Respondent failed specifically to except to the
judge’s conclusion that it violated Sec. 8(a)(1) by soliciting griev-
ances from employees and implying that it would remedy them.
Rather, its exceptions allude generally to the recommended Order
and remedy relating to that violation.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent, through its Vice President Connie Baumann-Gilman, un-
lawfully interrogated employee Neri Van Syckle concerning why she
wanted a union. This alleged violation is cumulative and would not
affect the Order and remedy.
Acme Bus Corp., Brookset Bus Corp., Baumann &
Sons Buses, Inc., Alert Coach Lines, Inc., a
Single Employer and Local 868, International
Brotherhood of Teamsters, AFL–CIO and
Garth Anthony Campbell and Theresa Cafaro.
Cases 29–CA–17613, 29–CA–17622, 29–CA–
17648, 29–CA–17653, 29–CA–17658, 29–CA–
17802, 29–CA–17858, 29–CA–17888, 29–CA–
17788, and 29–CA–17839
December 22, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On November 9, 1994, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
In adopting the judge’s finding that the Respondent
unlawfully implemented a wage and benefits package
on September 7, 1993, in order to induce employees
to abandon the Union, we note that while the timing
of the announcement of the enhanced wage and bene-
fits package was in keeping with the Respondent’s es-
tablished past practice, i.e., at the beginning of the
school year, the surrounding circumstances make clear
that the implementation was done with an eye toward
achieving union disaffection. As the judge found, the
cover letter accompanying the wage/benefits announce-
ment directly tied the improvements to the fact that the
Respondent had ‘‘heard’’ its employees’ needs and
concerns—a reference to its earlier unlawful solicita-
tion of grievances; stated that the only way its business
could move forward was to keep the Union out; noted
that union mistakes could cost employees their jobs;
and mentioned that money employees would have
spent on union dues could be used instead to offset the
cost of health insurance. Thus, by its own words, the
Respondent expressly linked its unlawful solicitation of
employee grievances with its effort to remedy them
through better wages and benefits, and contrasted its
own beneficence with the dangers of unionization. The
statements amount to a declaration to employees that
the Respondent’s actions were a direct product of the
dissatisfaction expressed at the outset of the Union’s
organizational effort and that the best way to ensure
the continuation of such improvements was to support
the Respondent rather than the Union. In sum, the Re-
spondent’s mere adherence to an established timetable
does not immunize its unlawfully motivated implemen-
tation of benefits.2
Further, in adopting the judge’s findings that the Re-
spondent, through its dispatcher Campbell, unlawfully
interrogated employees, we note that neither Camp-
bell’s relatively friendly relationships with certain driv-
ers nor his purported sympathy with their efforts to
unionize diminish the coerciveness of his actions. In
fact, Campbell’s closeness with the drivers increases
the likelihood that they would get the message of the
Respondent’s opposition to the Union because they
would understand his comments as accurately reflect-
ing the Respondent’s resolve. Campbell’s constant
presence among the employees and his ongoing solici-
tation of information served merely to amplify the ef-
fects of the Respondent’s widespread effort to identify
union supporters and solicit grievances that impelled
the organizing campaign.
459ACME BUS CORP.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Acme Bus Corp., Brookset
Bus Corp., Baumann & Sons Buses, Inc., Alert Coach
Lines, Inc., a Single Employer, Ronkonkoma, New
York, its officers, agents, successors and assigns, shall
take the action set forth in the Order.
James Kearns and Thomas Maher, Esqs., for the General
Counsel.
Alan Pearl, Esq., (Portnoy, Messinger, Pearl & Associates),
of Westbury, New York, for Respondents.
Daniel Campbell, Esq., of Floral Park, New York, for Local
868.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on
charges filed by Local 868, International Brotherhood of
Teamsters, AFL–CIO (Union or Local 868) in Cases 29–
CA–17613, 29–CA–17622, 29–CA–17648, 29–CA–17653,
29–CA–17658, 29–CA–17802, 29–CA–17858, and 29–CA–
17888 on August 26; September 2, 21, 22, and 24; Novem-
ber 5 and 29; and December 13, 1993, respectively, and
based on a charge filed in Case 29–CA–17788 on November
1, 1993, by Garth Anthony Campbell, an Individual (Camp-
bell), and based on a charge filed in Case 29–CA–17839 on
November 19, 1993, by Theresa Cafaro, an Individual
(Cafaro), complaints were issued against Acme Bus Corp.,
Brookset Bus Corp., Baumann & Sons Buses, Inc., Alert
Coach Lines, Inc., a Single Employer (Respondent) on No-
vember 30, 1993, and January 24, 1994. The complaints
were consolidated on April 5, 1994.
The complaints allege essentially that during the course of
a campaign by the Union to organize the employees of Re-
spondent, Respondent unlawfully discharged eight employees
because of their activities in behalf of the Union, and inter-
fered with its employees’ Section 7 rights in numerous in-
stances, including: (a) directing its employees to keep the
union activities of its employees under surveillance, and to
report to it concerning such activities; (b) soliciting the
grievances of its employees and implying that it would rem-
edy such grievances; (c) interrogating its employees concern-
ing their union activities and the union activities of other em-
ployees; (d) requiring its employees to sign a letter stating
that they opposed the Union, and threatening to discharge
them if they did not sign such letter; (e) threatening to close
Respondent if the Union was selected by the employees; (f)
creating the impression among its employees that their Union
activities were being kept under surveillance; (g) directing its
employees to order the Union’s agents to discontinue cam-
paigning in front of its facility; (h) directing its employees
to provide it with literature that they had obtained from the
Union; (i) directing its employees to wear ‘‘vote no’’ but-
tons, and to distribute such buttons to other employees; (j)
directing its employees to find out where the Union was
holding a meeting and to disrupt such meeting, if possible;
(k) threatening to discharge its employees or change their
working conditions to cause them to quit because of
theirunion activities; (l) by its agent, interrogating employees
concerning their union sentiments and reporting this informa-
tion to Respondent; (m) threatening to more closely watch
certain employees with the object of discharging them be-
cause of their support for the Union; (n) promising employ-
ees benefits to induce them to abandon their support for the
Union; (o) directing its employees to campaign against the
Union and promising them benefits if they did so; (p) intro-
ducing a harsher, more stringent, written disciplinary system
to be used to retaliate against employees who were union
supporters, and to be used to discharge such supporters; and
(q) implementing a wage and benefits package which in-
cluded increases in vacation and sick time benefits.
Respondent’s answers denied the material allegations of
the complaints, and on August 8 through 11, and August 15
and 16, 1994, a hearing was held before me in Brooklyn,
New York.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, comprised of Acme Bus Corp., Brookset Bus
Corp., Baumann & Sons Buses, Inc., and Alert Coach Lines,
Inc., each of which are New York corporations, having their
principal office and place of business collectively located at
3355 Veterans Memorial Highway, Ronkonkoma, New York,
and having bus yards in Bohemia, Jericho, Northport, and
Westhampton, New York, has been engaged in providing bus
transportation services for various school districts, private or-
ganizations, and the general public.
During the past year, Respondent purchased and received
at its Ronkonkoma facility products, goods, and materials
valued in excess of $50,000 directly from other enterprises
located outside New York State. Respondent admits that the
companies set forth above have been affiliated business en-
terprises with common officers, ownership, directors, man-
agement, and supervision; have formulated and administered
a common labor policy affecting employees of said oper-
ations; have shared common premises and facilities; have
provided services for and made sales to each other; have
interchanged personnel with each other; and have held them-
selves out to the public as a single integrated business enter-
prise.
Respondent further admits that its companies collectively
constitute a single integrated business enterprise and a single
employer within the meaning of the Act, Respondent also ad-
mits, and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Ronald Baumann will be referred to hereafter as Baumann.
2 The drivers’ assistants were also referred to as matrons.
3 All references to dates and months are in 1993, unless otherwise
stated.
4 Respondent denied that Portnoy or Walsh are its agents. They are
associated with the firm of Portnoy, Messinger, Pearl & Associates,
which represented Respondent in the investigation and hearing of
this case, and in the related representation case. I find that Portnoy
and Walsh are agents of Respondent. When they spoke at meetings,
Respondent’s high officials, who were present, did not contradict
them; they met with Respondent’s dispatchers at will on and off
company property. Allegany Aggregates, 311 NLRB 1165 (1993).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operation
The Respondent, a family-owned business, has as its prin-
cipals Ronald Baumann, president,1 Richard Baumann Jr.,
vice president, Richard Baumann III, terminal manager at its
Bohemia facility, and Connie Baumann-Gilman, vice presi-
dent. In addition, Edward Lynch is its vice president of oper-
ations, and Steven Schneider is its terminal manager at its
Jericho facility.
At each terminal, Respondent employs one or more dis-
patchers, drivers, drivers’ assistants,2 and mechanics. The
drivers, who are required to possess Commercial Drivers’ Li-
censes (CDL), operate minivans, large schoolbuses, or coach
buses.
B. The Union Campaign
I find that the following facts, relating to the campaign,
occurred as testified by Cafaro and Campbell, inasmuch as
their testimony was uncontradicted. Numerous events which
they testified about were not challenged by Respondent’s
witnesses who were present thereat, and in addition, Gilman,
Portnoy and Walsh did not testify. I will specify when Re-
spondent’s witnesses challenged General Counsel’s wit-
nesses’ versions of events.
Bohemia dispatcher Theresa Cafaro testified that the
Union began its organizing campaign in late March or early
April 1993.3 At that time she noticed a van with a union in-
signia, and observed union representatives distributing lit-
erature to drivers at the entrance to the Bohemia facility.
Other employees similarly testified that union representatives
spoke to them at the entrance to the Jericho facility, and that
they signed cards in behalf of the Union.
Cafaro stated that in April, Respondent held a meeting at-
tended by all its dispatchers. Present were Company Officials
Ronald Baumann, Richard Baumann III, Lynch, and Re-
spondent’s labor consultants Murray Portnoy and Kathleen
Walsh.4
At the meeting, Portnoy told the dispatchers that the Union
sought to organize the employees, and that it was their ‘‘re-
sponsibility’’ to keep the drivers together as a ‘‘family.’’ He
directed them to go out and listen to the drivers’ complaints
and perhaps the Company could ‘‘overcome’’ their com-
plaints so they would ‘‘stay’’ with the employer. He further
told them to: (a) identify five drivers who they believed were
‘‘strictly company people’’; (b) ask them what they wanted,
and inquire of them to ask the drivers they associated with,
what kinds of benefits they ‘‘really’’ wanted, including what
they believed the Union would obtain for them; and (c) bring
the five drivers with them to the next meeting, and the Com-
pany would ‘‘go over them and see what they can do about
them.’’
Portnoy also told them to go into the yards, speak to the
drivers, and see what their views were about the Union, in-
cluding who was in favor of the Union and who opposed it.
Following the meeting, Cafaro selected five drivers, asked
them to learn what benefits other drivers wanted, and attend
the next company meeting the following month, at which
time they could discuss their suggestions, which might in-
clude hospitalization, sick pay, and vacation pay.
On May 19, Local 868 filed a petition for representation
in Case 29–RC–8162, in which it sought to represent the Re-
spondent’s drivers and drivers’ assistants. Local 144, Service
Employees International Union, AFL–CIO (Local 144) filed
a petition in Case 29–RC–8167.
Cafaro brought her 5 drivers to a company meeting in
May, which was attended by about 50 people, including the
dispatchers and the drivers they selected. The same persons
were present in behalf of Respondent.
Baumann began the discussion by asking Cafaro what she
believed the drivers most desired. She replied ‘‘hospitaliza-
tion.’’ He then asked the others present the same question.
Nearly all the drivers mentioned what benefits they were in-
terested in, many of whom said they wanted a hospitalization
plan with less expensive contributions by the employees.
Baumann said that the Company would review all of the re-
quests, and that it would ‘‘try to do something about hos-
pitalization and things like that.’’ Baumann also mentioned
that the employer was searching for a better, less expensive
hospitalization plan from various companies. Baumann said
that at the next meeting he would give the drivers the results
of that search.
Portnoy told those assembled that Respondent wanted to
keep its operation ‘‘together, as a family,’’ and that the em-
ployees did not need a union, adding that the Company
would attempt to resolve ‘‘all these problems for the driv-
ers.’’ He warned that if the Union got in, Respondent would
‘‘close down.’’
Cafaro did not attend the June meeting, but her coworkers
told her what occurred. Shortly after that meeting, Portnoy
asked her to speak to the drivers and ‘‘see what they are say-
ing.’’ She replied that she was asking questions of the driv-
ers, but they refused to speak to her. Portnoy answered that
other dispatchers were having the same experience, adding
that she should keep trying and asking, and that ‘‘eventually,
maybe somebody will say something.’’
At about this time, Respondent enlisted the aid of Garth
Campbell, its dispatcher in Jericho. He first became aware of
the Union’s campaign in June, when Jericho driver Rupert
McIntosh, who was present with employees David Benijian,
Gilbert O’Connor, George Ward, and Lorenzo Ward, told
him that the Union and Local 144 were trying to organize
the employees.
That evening, Campbell was called into Vice President
Lynch’s office, in which Terminal Manager Schneider was
present. Lynch asked Campbell if he was aware of the
Union’s campaign. Campbell said he was. Lynch asked him
how he learned about it, and Campbell mentioned the names
of the five employees. Lynch asked Campbell whether he
was in favor of the union campaign, and Campbell replied
that he was neutral.
461ACME BUS CORP.
5 On another occasion in July, Lynch told Campbell that if the
Union won the election, Respondent would close the Jericho facility,
and no one would have a job.
Lynch then told Campbell that they had to do some
‘‘ground work’’ in order to ‘‘head this thing off before it
gets blown out of proportion more or less.’’ Lynch told him
that he could help by mingling with the drivers and obtaining
information from them. He instructed Campbell to try to
‘‘find out definitely what’s happening and who is involved
in this thing,’’ and to keep him informed of any information
he acquired. Lynch specifically told Campbell that he wanted
him to find out from his friends what was happening. Camp-
bell then asked his friends certain questions concerning the
Union.
Shortly thereafter, Campbell was summoned to Lynch’s
office. Present were Lynch, Richard Baumann III, Maureen
McCabe Kours, Respondent’s director of human resources,
Schneider, Walsh, and dispatcher Denise. Lynch told Camp-
bell that he learned that the Union was seeking to organize
the employees. Lynch showed Campbell a letter which stated
that the dispatchers and office staff believed that the Com-
pany should be given an opportunity to address the employ-
ees’ problems, and that if the Union was successful, the em-
ployer would close its operation.
Lynch told Campbell that he should sign the letter as a
‘‘good career move’’ in order to ‘‘head off’’ the campaign,
adding that if the Union organized the Jericho employees,
Respondent would close the Jericho terminal, because it was
the newest of its facilities, and the Company was able to op-
erate successfully without it. Lynch added that if Campbell
did not sign the letter, there would be no jobs. Campbell
signed the letter. Copies were made and it was brought to
the garage so that the drivers and drivers’ assistants could
take a copy.
Campbell further stated that in late June or early July,
Lynch asked him to attend a meeting at which Portnoy
would advise the Company as to what action it should take,
adding that the employer would not make any promises dur-
ing the campaign.
Present at the meeting were Baumann, Lynch, McCabe
Kours, Portnoy, and Walsh. Portnoy asked Campbell for his
position on the union drive. Campbell replied that he was for
management. Portnoy announced that he must learn three
things by Friday: (a) whether Local 868 or Local 144 was
trying to organize the employees; (b) who the ‘‘key players’’
were; and (c) the nature of the employees’ grievances. Lynch
asked Campbell to reply to Portnoy’s question about the key
players, and Campbell identified McIntosh and O’Connor.
Portnoy answered that he had been hearing a lot about
O’Connor, and asked to see his file, which Lynch presented
to him. Portnoy then said that he wanted to do a ‘‘Social Se-
curity check’’ on O’Connor. Portnoy then said to ‘‘docu-
ment’’ everything those employees did.
Campbell first testified that, at this meeting, Portnoy di-
rected him to ‘‘remove’’ union organizers who were assem-
bled at the gate to its facility. Campbell later testified, how-
ever, that Portnoy requested that he ask them to leave the
premises if they were, in fact, on Respondent’s property.
Campbell then went to the area, determined that the Union’s
agents were not on the premises, and reported this to Port-
noy. I credit his later testimony as it contained more details,
and described the actions he took in this regard.
That day, Campbell was given a union card by McIntosh,
which Campbell put, unsigned, in his pocket.
Campbell further testified that later that day, Lynch called
him into his office, at which Baumann, Schneider, McCabe
Kours, and Walsh were present. Lynch told him that he ob-
served many drivers speaking to union agents across the
street. Lynch told Campbell that they had to try to stop the
organizing effort because ‘‘if the union gets in here [Lynch
has] seen a lot of companies . . . destroyed.’’5 Lynch asked
Campbell to attend a union meeting which he heard would
take place that evening at the home of a driver. Lynch asked
him to obtain and give him any communication he was able
to get, including leaflets and buttons. Lynch then asked
Campbell for the union card he was given earlier that day.
Campbell gave it to him.
Campbell testified that following the meeting with Port-
noy, Lynch told him that he should begin ‘‘moving around’’
when he had the time to do so and obtaining information
from employees concerning the support the Union had
among the workers, and who was in favor of union represen-
tation. Campbell thereafter spoke to employees in the garage,
asking them questions as to the progress of the Union’s cam-
paign and the employees’ thoughts on the matter. He stated
that in July, he asked about 100 employees whether they
supported the Union, and reported to Lynch the names of
those who wanted and those who did not want the Union.
Employee Pedro Pozo testified that whenever he spoke to a
union agent with other workers, Campbell was ‘‘running
back and forth’’ within the group.
Campbell further testified that in June and July, he was
away from his desk quite often obtaining information con-
cerning the Union, such as which employees supported it,
where union meetings were scheduled to be held, and remov-
ing union agents from the Respondent’s premises at the gate.
During those months, he spent about 45 minutes of every 2
hours in the garage speaking to employees regarding the
Union. He spoke to drivers when they were in the facility
in between their runs.
Campbell stated that, thereafter, he obtained flyers and
other information from his friend, McIntosh. On one occa-
sion in mid-June, shortly after McIntosh gave some literature
to Campbell in the office, Lynch asked Campbell for the lit-
erature he had received. Campbell gave him the documents.
Later, Walsh asked Campbell to bring any union literature to
her. Campbell noted that McIntosh spoke to him voluntarily
about the Union because they were members of the same fra-
ternal lodge, but other employees spoke to him about the
Union because he acted sympathetic and concerned, inquiring
‘‘what’s going on,’’ ‘‘are you guys getting anywhere?’’
Campbell was also more direct, asking them whether they
were having a union meeting shortly. They gave him infor-
mation as to upcoming meetings, who supported the Union,
and where meetings would take place. He did not threaten
to discharge them if they did not talk to him concerning the
Union.
Thereafter, Lynch and Walsh asked Campbell whether he
believed that dispatchers Audrey and Denise supported the
Union. Campbell reported that Denise was ‘‘neutral.’’ Walsh
replied that she suspected Denise of taking Respondent’s
confidential information and giving it to a driver.
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lynch and Portnoy also asked Campbell to make a count
of the number of employees he believed would vote for and
against the Union. Campbell did so. Cafaro stated that prior
to the election, Walsh and Maureen gave her cards contain-
ing drivers’ names and asked her to tell them who she be-
lieved supported the Union. Cafaro did so.
Lynch gave Campbell a box of ‘‘vote no’’ buttons, telling
him to distribute them, and that all the office employees
should wear them. Campbell gave one to Denise, who pinned
it on. Audrey put hers in a drawer. The buttons were placed
at the front of the office near the entry door. When drivers
entered, Campbell told them to take a button. He stated that
after his first few requests, drivers laughed at him, apparently
refusing to take a button. He stated that he never insisted that
anyone wear a button. One day, Campbell gave driver Pedro
Pozo a button. He threw it across the room into the garbage
can, and removed one from Denise’s blouse, and threw it
into the garbage.
On July 1, 1993, the Regional Office issued a Decision
and Direction of Election, in which an election was directed
in a unit of drivers and drivers’ assistants at Respondent’s
Bohemia, Northport, Westbury/Jericho, and Westhampton lo-
cations.
Campbell testified that in July, Walsh, whose office was
near the Jericho facility, called him and told him that she
needed a ride to a railroad station, and also wanted to speak
with him in private. During their meeting, Walsh asked him
if he heard anything new recently. Campbell said that he did
not. Walsh said that she heard that a union meeting would
be held shortly. She asked him to find out the meeting’s lo-
cation, and the lawful capacity of the meeting place. She
asked him to report this information, including the date of
the meeting, to her. Walsh gave him her business card and
told him to call her with that information, and if he heard
anything concerning the Union. She also told Campbell to
monitor the activities of the five drivers, set forth above.
Thereafter, Campbell learned the location of the meeting, but
could not find out the legal capacity thereof. He reported that
information to Walsh. Lynch testified that he knew that
Campbell and Walsh had met for the purpose of giving her
information.
1. The alleged increased discipline of employees
In early July, following the setting of the election date,
Lynch told Campbell to ‘‘step up our pressure on the work-
ers.’’ Lynch told him that if Benijian, McIntosh, or O’Con-
nor ‘‘step out of line or spit’’ they should be written up, and
denied their midday runs, adding that if they were written up
they would be fired. Campbell stated that he ignored Lynch’s
instruction to deny midday runs to the drivers, and added
that he did not fire anyone or recommend the discharge of
any worker following Lynch’s orders. Further, Campbell did
not know of any worker who was discharged because of this
increase in pressure.
Campbell stated that in July, Maureen Oulette, Respond-
ent’s assistant human resources coordinator, told him that
they had to work harder to try to put a stop to the campaign,
and asked him to begin documenting, in writing, workers’
violations of company rules, such as being out of uniform,
and to ‘‘start putting some pressure on these people.’’ In this
connection, she said that such documentation was necessary
because the employer wanted to discharge workers and re-
place them with new hires, adding that Respondent had been
advertising for drivers and drivers’ assistants for the Jericho
facility. Campbell later testified, however, that such hiring
would be effected if the workers’ struck. Campbell did not
know whether any employee was hired pursuant to the adver-
tising campaign. However, he did quote Oulette as saying
that Respondent ‘‘wanted to get rid of people in Jericho be-
cause they were actively involved in the campaigning.’’
In this connection, Campbell testified that Lynch told him
that he had seen employees Frances Barker, Kim Birdsong,
Val Mead, McIntosh, and O’Connor exchanging union lit-
erature in a bus which was parked in front of Lynch’s office
window. He told Campbell to watch Birdsong closely, add-
ing that she was supposed to have a union meeting at her
house, and Lynch wanted him to attend the meeting or have
someone else attend. Lynch and Schneider told Campbell to
document each instance that Birdsong was absent, and he
did. Campbell was told by Respondent’s human resource de-
partment that he should begin issuing violations for drivers
being out of uniform, and Campbell stated that he warned
Birdsong for being out of uniform.
Campbell testified, however, that this emphasis on docu-
mentation was instituted when Respondent experienced too
much absenteeism, and Hudson General levied monetary
penalties against Respondent for drivers’ lateness. Campbell
conceded that absenteeism is a major concern to a bus com-
pany which transports students. Further, Campbell stated that
Respondent had documented employee infractions of its poli-
cies before the start of the union campaign, but added that
such documentation increased during the Union’s drive.
Campbell explained that employees had not been cited for
violations which were considered minor prior to the Union’s
advent, but the same activities were written up during the
campaign. An example given was where a driver took a bus
to have coffee. Such activity was ignored prior to the
Union’s campaign, but during the organizing, Campbell was
asked if the driver had permission to do so. Campbell noted
that the reason for the inquiry was that Hudson General was
monitoring the gasoline consumed by Respondent’s vehicles.
He conceded, however, that it was possible that more viola-
tions of company rules were occurring at that time which ne-
cessitated the increased number of disciplinary notices.
Campbell stated that following his meeting with Oulette,
he began documenting employee violations of company rules
at the instruction of Lynch, Schneider, and Walsh, who told
him the names of who to write up, such as Benijian and
McIntosh. He was also asked to keep an eye on Pozo for de-
stroying the ‘‘vote no’’ button, and on the others who indi-
cated an interest in the Union.
2. Further instructions to the dispatchers
Sometime in July, Lynch asked Campbell to obtain infor-
mation about an upcoming union meeting on a Friday, and
suggested that he ask one of his carpool companions, Charles
Nixon, a drivers’ assistant, to tape record the meeting. Camp-
bell asked him to record the meeting, and he agreed. Lynch
warned Campbell that he should not drive Nixon to the meet-
ing, because he did not want Campbell to be seen with
Nixon.
Nixon changed his mind and decided, on short notice, not
to undertake this assignment, and did not attend the meeting.
That weekend, Lynch asked Campbell for the tapes, and
463ACME BUS CORP.
6 All references hereafter to Pozo are to Pedro Pozo.
Campbell told him that Nixon refused the mission. Lynch re-
plied that Campbell should have ‘‘padded’’ Nixon to per-
suade him to make the recording. Campbell stated that he
understood ‘‘padding’’ to mean add extra time to his card.
Campbell told Lynch that he would not do that. Lynch de-
nied having any conversation with Campbell regarding pad-
ding an employee’s hours of work.
In July, a meeting was held at a restaurant. Present were
Portnoy, Walsh, Baumann, Gilman, Lynch, Schneider, and
all the dispatchers. Portnoy told those present that he would
not allow a union to organize Respondent, particularly the
Jericho facility, which was the newest location, and that if
necessary, he would recommend that Jericho be closed, as an
alternative to union representation.
Portnoy then requested that each dispatcher speak to about
50 employees, and assure them that the Company was devel-
oping a benefit package which would address their needs,
and that they should have Gilman speak to them as a group.
Portnoy warned that if this was not done, they should look
for a job since he would advise Baumann to close the Jericho
facility. Portnoy then asked those present about their feelings
concerning the Union, whether they believed the employees
have legitimate complaints, and what course of action the
employer should take.
Portnoy asked Campbell for his opinion about the union
campaign, and asked him how he would help Respondent try
to ‘‘stop the Union.’’ Campbell answered that he would do
what he could.
Gilman closed the meeting by telling those present that
she was in the process of developing a benefits package
which would address the employees’ needs, and which she
hoped to present prior to the election.
Several meetings were held shortly before the election.
Campbell attended a meeting with about 50 drivers and driv-
ers’ assistants. Gilman told those assembled that she was im-
plementing a new benefits package. She asked them to trust
her and give her a chance.
Another regular staff meeting was held at which Portnoy,
Gilman, Lynch, the dispatchers, and about 50 employees
were present. Orlando Pozo, the brother of Pedro, asked Gil-
man why the money she was paying Portnoy could not be
better spent by infusing the Company with such funds. Gil-
man replied that she would have preferred to have used the
money for the Company, but that she was not familiar with
labor law and needed guidance in this area. Orlando6 then
asked Portnoy why so many ‘‘inflammatory’’ booklets were
issued against the Union. Portnoy did not respond. Pozo then
said that he would ask that question three times, and if there
was no answer, everyone should leave. Orlando then asked
the question three times, no response was given and the em-
ployees left.
Pozo testified that at that meeting, he asked Gilman ques-
tions about vacations, raises, and what health plan she was
offering the employees. Gilman replied that she could not
say anything about the matter because the Company was in
‘‘litigation’’ with the Union, and only the Company’s attor-
ney could speak about it. According to Pedro, Orlando asked
what the Company was offering that they could not obtain
from the Union, such as raises, health benefits, and vaca-
tions. No response was made and the company representa-
tives made no offers. After asking those questions three
times, and receiving no response, the employees left.
Cafaro testified that a few days before the election a meet-
ing was held in a restaurant at which all the dispatchers were
present, but no drivers or drivers’ assistants. They were given
a paper which represented a ‘‘package’’ developed by Gil-
man. The package stated that drivers would be receiving
more vacation benefits, a better and less expensive hos-
pitalization plan, and pay for time taken when the employee
was sick.
At the meeting, Portnoy asked the dispatchers to show the
package to the drivers, discuss it with them, and see what
they thought about it. He said that if each of them could get
one driver to change his vote from the Union to Respondent,
the Company ‘‘would be ahead.’’
The following day, Cafaro spoke to about 50 drivers about
the package as they were leaving the premises in their buses.
Cafaro first asked the driver if he was voting for the Union,
and described the package to all the drivers she spoke to.
She told them if they wanted to give Gilman a ‘‘chance’’
they should not vote for the Union, but that it could take 6
months to get the package ‘‘together,’’ but it was ‘‘on its
way.’’
On July 30, the election was held off the premises of Re-
spondent. Employees were driven by company bus to the
election site. On the day of the election Portnoy asked
Campbell to ride in a bus and campaign against the Union,
and count how many Jericho employees were at the election.
Campbell replied that he did not want to do that. Portnoy re-
sponded that it would be ‘‘advisable and a good career move
for you to go on the bus.’’ Campbell asked him to check
with Lynch, and Portnoy said that he already had. Campbell
rode on the bus with about 40 potential voters, but did not
campaign thereon or take a count of employees at the voting
site. Those riding with him asked him what he was doing
there, told him that he was part of management, and asked
him to get off the bus.
The Union won the election. Respondent filed objections
to the election, and on October 8, the Regional Director sus-
tained one objection, set aside the election, and directed that
a second election be conducted. Thereafter, the Union and
another petitioner filed a request for review which was grant-
ed by the Board on March 2, 1994. The Board remanded the
case for a hearing on the objection. On June 1, 1994, the
hearing officer, following a hearing, issued a report in which
she recommended that the objection be overruled, and that
the Union be certified. The Employer has filed exceptions to
the hearing officer’s report.
C. The Alleged Supervisory Status of Theresa Cafaro
and Garth Campbell
1. Facts
The complaint alleges that Cafaro and Campbell are em-
ployees who were unlawfully discharged on August 17 and
September 30, respectively. The complaint further alleges
that they were agents and conduits of Respondent, acting on
its behalf. Respondent denied that allegation, and asserts that
they are statutory supervisors.
Cafaro and Campbell were employed as dispatchers at dif-
ferent terminals. Each worked at a desk in an office. Their
duties were essentially the same. Basically, the drivers and
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matrons had the same bus runs each day, which they picked,
pursuant to seniority, at the start of the school year.
In the evening, the dispatchers prepared a sheet with driv-
ers’ names and routes. On that sheet they listed the ‘‘open’’
routes, those which needed to be covered because the drivers
or drivers’ assistants had informed them that they would not
be at work the next day. They also listed employees to
‘‘watch’’ because they had not been at work the previous
day.
2. Theresa Cafaro
Theresa Cafaro was a long-term employee. She began
work for Respondent in 1978, starting as a driver. She was
a dispatcher at Smithtown, where she was in charge of the
entire operation, including hiring and firing, and then went
to Bohemia, where she dispatched schoolbuses. At the Bohe-
mia terminal, Cafaro worked with dispatchers Barbara Law-
rence, who dispatched vans, and Irene Miller. Cafaro, who
said her title was head dispatcher, trained Lawrence, and
‘‘oversaw’’ the dispatch of vans. Terminal Manager Richard
Baumann III had an office in that terminal, but he was pri-
marily involved with supervising the mechanics in the ga-
rage, and, according to Cafaro, everything but the mechanics
and their work was left to the dispatcher’s discretion.
Cafaro dispatched the regular school runs, which basically
were handled by the same drivers on their regular, assigned
routes, and she also assigned drivers to charter coach runs.
Cafaro did not suspend or discharge anyone, nor rec-
ommend the hire or fire of any employee at Bohemia. How-
ever, she asked that certain relatives be hired, but did not
recommend that they be hired. Regarding lesser forms of dis-
cipline, Cafaro issued written disciplinary warnings to drivers
and drivers’ assistants without asking for permission from
her superiors. She exercised her discretion in not writing
them up ‘‘for every little thing.’’ If a driver had not called
or appeared after 3 days, Cafaro wrote a disciplinary report,
reassigned his run, and sent the driver to the office. If the
driver returned before a report was written, she gave him
back his run if it had not yet been reassigned. If the driver
returned on the fourth day, she returned his run, at her dis-
cretion. Cafaro did not consult with anyone concerning the
issuance of a disciplinary warning. Occasionally she asked
Richard Baumann III for advice concerning a driver, and he
told her to do what she wanted. In addition, she wrote dis-
ciplinary reports for other forms of misconduct, such as driv-
ers’ use of inappropriate language to dispatchers, and on the
vehicle’s two-way radio.
Following her writing such a disciplinary report, a copy
was put in the employee’s file. When Cafaro issued a third
reprimand, she sent the employee and the report to the office,
which decided on suspensions of drivers. Cafaro would later
be notified that the driver was suspended.
Cafaro also utilized less formal means of disciplining the
employees. She occasionally spoke to them in an effort to
have them stop using loud, abusive language, and in one in-
stance, asked a driver to improve his personal hygiene.
Cafaro interviewed drivers for hire, assembled their appli-
cation papers, and sent them to the office, which decided on
the hire of the applicant. She made no recommendations con-
cerning the hire of the interviewees.
Cafaro verified the time the drivers put on their timecards
as the time they actually worked, and signed the cards. In
other words, she counted the hours the drivers worked, to-
taled it, and sent the papers to the payroll department. She
had no authority to change the time on a card, even if she
found that an incorrect entry was made. She performed this
work for all the employees, even those who drove the vans,
although she did not dispatch the vans. However, she had no
authority to permit employees to leave work early or arrive
late.
In this connection, Baumann testified that Cafaro decided,
with the school district, how much time a run should con-
sume, and then computed when the driver had to be at the
terminal, and then at his first stop. The driver was then paid
based on that estimate. Cafaro stated that if a driver com-
plained that he needed 5 minutes more time for his run than
the time allotted, Cafaro checked the matter, and if true, she
permitted the driver the extra time. Cafaro also changed a
run if children were added or deleted, or if a problem devel-
oped with the driver or passengers. This change in runs
caused drivers to get more or less pay. She also approved
the payment of drivers who completed ‘‘dry runs,’’ in which
the driver practiced his run prior to the start of the school
year.
Cafaro and the other dispatchers had the keys to the prem-
ises. They stayed late, until the last bus was accounted for.
Regarding time off, on days when the weather forced the
closing of schools, drivers called Cafaro and asked if they
had to report. She told them that they did not.
Cafaro received cash from drivers which they obtained
from trips they ran. She sent the money to the office. An-
other dispatcher was in charge of petty cash.
Prior to the start of each school year, Cafaro assembled
the bus runs, based on the addresses of the students. During
the school year she made such changes in the makeup of the
buses as necessary. She sent reports of the numbers of buses
and drivers used, and passengers serviced, to Baumann. Oc-
casionally, Baumann questioned her routing, and asked her to
change certain aspects of the assignments.
Lynch testified that, as Cafaro’s immediate supervisor, he
knew that she recommended the hire and fire of employees,
imposed discipline, and approved requests for time off for
vacations, and leaves of absence. In April 1989, Cafaro ap-
proved, as ‘‘supervisor,’’ Lawrence’s summer vacation re-
quest. The request form was also approved by the personnel
manager. At one time, Lawrence requested the same vacation
as Cafaro. Cafaro refused to approve it, and called Baumann,
who agreed that Cafaro had the first choice of vacation time
because of her seniority.
Baumann testified that Cafaro was the head dispatcher in
Bohemia, with more seniority and a higher salary than any-
one in her office.
Baumann testified that prior to his announcing wage and
benefits packages, he asked for input from Cafaro, and she
gave him certain ideas, such as the ‘‘3 for 5’’ policy, where-
by employees who work 3 days in a 5-day week during
which school is closed, are paid for the entire week. Such
a policy was implemented by Respondent.
Baumann stated that when a worker left Respondent’s em-
ploy, Cafaro completed a termination report in which she
would indicate whether the employee should be rehired.
Baumann testified that if the recommendation was not to re-
hire an employee he would not, based on that recommenda-
tion, and he did no independent investigation into the matter.
465ACME BUS CORP.
Driver Neri Van Syckle testified that she followed the dis-
patcher’s instructions when given. She stated that she asked
Cafaro for time off, for permission to leave early from work,
or for part of a day off, and that Cafaro did not deny her
such time off if another driver was available to cover her
run.
3. Garth Campbell
Garth Campbell worked with another dispatcher at the
Jericho terminal. They both dispatched 300 to 400 drivers
each day. Also present at that terminal were Company Offi-
cials Richard Baumann Jr. and Lynch, Terminal Manager
Schneider, and Safety Director Billy Erickson. Campbell stat-
ed that Schneider was in the office as often as his other re-
sponsibilities, including supervision of the maintenance of
the vehicles, would permit. Indeed, Schneider testified that
he was in the dispatch office a good part of the morning
each day as drivers arrived to begin their assignments.
Schneider removed drivers from routes, replaced them with
other drivers, and also hired and fired employees. Schneider
oversees all dispatchers and the daily operations, and is re-
sponsible for all drivers and assistants at the terminal.
Schneider testified that he hired Campbell as a dispatcher/
manager to assign the runs and vehicles, and ‘‘run the oper-
ation,’’ overseeing 450 employees and 196 vehicles. His re-
sponsibilities included ensuring that all the routes left the ter-
minal on time. Regarding discipline, Schneider told Camp-
bell not to take any ‘‘crap’’ from anyone, and that he should
write up anyone who violated company rules, and discipline
them in accordance with such policy.
Lynch testified that he hired Campbell to dispatch, super-
vise, and discipline the drivers and their assistants. He also
was given the authority to approve their time off, and to per-
mit them time off to attend to personal business. Lynch
could not cite any specific examples of his having granted
such time off. Lynch further stated that Campbell had the au-
thority to and did discipline employees, and did not need
Schneider’s permission to do so.
The dispatchers checked in the drivers as they arrived in
the morning to take their vehicles. If a driver was late or ab-
sent, Campbell notified Schneider, and then listed the route
as being available, and assigned a ‘‘floater’’ or standby driv-
er to take the route. He selected a replacement from a list
of drivers prepared by Schneider, and he had to check with
Schneider, who sat opposite him in the office, when he need-
ed to assign a replacement driver. If a driver was late, and
his bus had been reassigned, the dispatcher could assign him
to another run, or Schneider would decide that the driver
should wait to see if another run became available.
Replacement or ‘‘shape’’ drivers generally waited at the
office for an assignment. After all the runs were filled,
Campbell told Schneider how many drivers were waiting,
and Schneider directed him to have them wait, or ask one
or two to perform routine messenger duties, and then dismiss
the rest. In the afternoon, if Schneider was unavailable,
Campbell dismissed the waiting replacement drivers himself
after seeing that all the routes were covered. Cafaro stated
that she asked drivers to wait 1-1/2 hours in the morning in
case they were needed, for which they received standby pay.
Campbell’s pretrial affidavit stated that if a driver was ab-
sent for 1 or more days, he assigned another driver to the
route. At hearing, however, Campbell altered that to state
that he assigned a route to a driver only after consulting with
Schneider. Regarding a driver’s return to work after an ab-
sence, his testimony, consistent with his affidavit, was that
he asked Schneider for instructions, and Schneider would de-
cide whether to return the regular route to the driver, or as-
sign him a different run.
Campbell kept in close communication with Hudson Gen-
eral, which administered the schoolbus contract. Parents
called Hudson General with complaints including late arriv-
ing buses, and instructions, for example, that a student
should not be picked up. A Hudson General representative
would then call or fax the dispatcher for information. Camp-
bell would then call the driver on the vehicle’s radio, and
then reply to Hudson General, or call the parent.
Drivers are required to ‘‘check in’’ with the dispatcher.
This ensures that the dispatcher knows that the driver has ar-
rived, permits the dispatcher to relay current instructions,
such as not to pick up a particular child, and also permits
the dispatcher to have a ‘‘face to face’’ look at the driver
in order to determine whether he appears fit to drive. There
was no instance where Campbell found a driver to be so
unfit.
Regarding the discipline of employees, 15 disciplinary no-
tices were received in evidence, dated from April 20 through
August 11, all of which were signed by Campbell as super-
visor. The infractions included lateness, failure to wear a
proper uniform, and failure to perform DOT checks on the
vehicle. He also wrote notices for drivers engaged in the fol-
lowing: cursing on the vehicle radio; being loud and insult-
ing to the payroll clerk; not in uniform after receiving three
verbal warnings; and to drivers who were late on 3 or 4 con-
secutive days. Disciplinary notices led to suspension and dis-
charge.
Campbell stated flatly that he never wrote a disciplinary
notice to an employee without being directed to do so by
various company officials who learned of the incidents by
being informed by Campbell or other dispatchers. He further
stated that when a company official was not a witness to an
incident that he issued a written warning for, such as an im-
proper uniform, Schneider or Lynch would check the facts
which led to the issuance of the warning.
In contrast, Schneider denied instructing Campbell to write
a disciplinary notice for any worker. He conceded, however,
that he may have given Campbell ‘‘guidance’’ in telling him
what discipline should be given, according to company pol-
icy. However, according to Schneider, the writing up of the
employee and the decision to do so rested solely with Camp-
bell, as the supervisor and the person ‘‘in charge’’ of the
drivers and assistants. Schneider conceded that Campbell
came to him for advice, told him the facts of the alleged vio-
lation, and Schneider then told him to write up the employee.
Schneider further admitted that Campbell asked him ‘‘numer-
ous times’’ how to write an incident report, and what action
he should take concerning an incident, and Schneider advised
him.
As to a driver who cursed on the vehicle radio, and also
cursed Schneider in Campbell’s presence, Campbell stated
that he was asked for his opinion regarding the discipline of
that employee, but he gave no recommendation. Schneider
suspended the worker for 3 days.
Campbell stated that employee Nahim Burden called
Campbell and asked that his run not be sent until he arrived.
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He was then 10 minutes late. Campbell decided to assign an-
other driver. Burden arrived and cursed Campbell for giving
his route to someone else. The safety director made a written
report and directed Campbell to issue a disciplinary report to
Burden. Schneider testified that Campbell wrote the report,
and that Campbell fired Burden. Two written disciplinary no-
tices received in evidence are signed by Campbell only. One,
a first notice issued in May, stated that his conduct was very
nasty and loud, and that he failed to wear his uniform. The
notice further stated that ‘‘this has been the second time he
has been told to wear his uniform and refused to do so.’’
The second involved Burden’s failure to report on time, as
set forth above.
In addition, Campbell gave several written warnings to
Daniel Mondesir for being out of uniform, and a warning to
Judmice Smalls for the same reason. Schneider testified that
Campbell suspended Mondesir for violations which included
failure to wear his uniform, lateness, and failure to return his
keys. He also gave a written warning to Elaine Peterson.
Schneider told him to give her a warning because she parked
her bus in the wrong place and garbage was strewn inside
it. In that instance, he told Schneider about the matter and
brought Schneider to the bus to view its condition. Schneider
denied seeing the bus.
Campbell testified that when an employee cursed him and
clerical employee Lorna, Campbell told the worker that she
was fired and ordered her to leave the premises. The em-
ployee protested, and Schneider was called. Schneider told
Campbell that he did not have the authority to discharge the
employee.
As set forth above, Lynch told Campbell that he saw Kim
Birdsong in her bus, which was parked in front of Lynch’s
window, distributing union literature with employees Frances
Barker, Val Mead, McIntosh, and O’Connor. Lynch and
Schneider told Campbell that he should document every in-
stance of Birdsong’s absence. He did so, and also issued
warnings to her for being out of uniform. Upon Schneider’s
instruction to issue warnings to Birdsong for being late, he
did so.
Campbell further testified, as set forth above, that he was
told that Pozo should be written up whenever he had an op-
portunity to do so. Campbell stated that he did not write up
Pozo for throwing the ‘‘vote no’’ button into the garbage or
for taking the button from Denise’s blouse because Campbell
did not consider those actions to be violations of company
policy. Respondent argues that this demonstrates that he used
independent judgment in deciding not to issue a disciplinary
notice to Pozo.
The switchboard operator is responsible to ensure that the
drivers submit the ‘‘Daily Vehicle Check’’ and ‘‘Defect Re-
ports’’ to her. If they do not, the operator tells Campbell.
Campbell investigates by searching the slips to see if the par-
ticular document was submitted. If it was not, he asks the
driver why it has not been submitted. Ordinarily, the driver
has the slips in the bus, and he then submits them. If not,
Campbell sends the driver to Schneider for appropriate ac-
tion. Campbell never wrote a warning letter to a driver for
not having submitted those records.
Campbell testified that he did not review or sign the driv-
ers’ timecards. However, the card of Richard Greene, dated
August 2, bears Campbell’s initials. Further, Lynch testified
that Campbell checked the validity of the times entered on
the cards in order to ensure that the employee actually
worked the times set forth. He then approved the cards.
Campbell stated that other office employees were responsible
for calculating their hours and pay, and he never authorized
anyone to work overtime.
Schneider testified that Campbell recommended two neph-
ews for hire. Schneider accepted his recommendation without
investigating further. However, the two relatives met all the
requirements for hire, and were hired. Schneider conceded
that many employees are hired on the recommendation of
current employees.
Campbell first testified that he possessed a coded super-
visor’s key which he used to pump gasoline for the vehicles.
Later he testified that he did not have such a key, but that
when he needed the key he obtained one from Schneider.
The dispatchers, who are salaried and do not receive over-
time pay, are paid from the Brookset payroll, in which the
company officials, mechanics, and office staff are also paid.
The dispatchers also received a fully paid medical plan
which included major medical benefits. In contrast, the driv-
ers and drivers’ assistants, who are paid from a different pay-
roll, earn an hourly wage, with overtime. They had an HMO
plan to which they had to make contributions.
Campbell attended monthly staff meetings, at which
Schneider, Walsh, the human resources directors, the safety
director, and senior drivers were present. They discussed the
Company’s baseball team, uniforms for employees, a health
benefits package, and everyday operations of the employer.
At one meeting, they discussed the necessity of having two
different radio communications systems. Neither business
conditions, driver qualifications, nor safety was discussed at
the meetings. Cafaro stated that company policies were dis-
cussed at such meetings.
D. Analysis
Section 2(11) of the Act defines a supervisor as one who
has authority to perform certain acts, including the respon-
sible direction of employees, the assignment of work, and the
discipline of employees, or effectively to recommend such
action, if the exercise of such authority requires the use of
independent judgment.
The burden of establishing that an employee is a super-
visor rests with the party, here Respondent, which asserts the
supervisory status of the employee. Express Messenger Sys-
tems, 301 NLRB 651, 654 (1991).
The evidence is clear that Cafaro is a supervisor. By her
own testimony, she exercised discretion over all matters re-
lating to her responsibilities as dispatcher. She issued written
disciplinary notices without consultation with her supervisors,
and such notices led to discipline, including suspensions. Al-
though the suspensions were handled by her superiors, her
actions in issuing the notices caused the suspensions of
workers.
Cafaro exercised her discretion in not writing up offenses
which she could have. She decided whether to return a driver
to his original route if he had not called or appeared for 3
or 4 days, rather than assign it to another driver. She also
orally reprimanded employees for using foul language, and
having poor personal habits.
Cafaro’s issuance of discipline to employees warrants a
finding that she is a supervisor. Vanguard Tours, 300 NLRB
467ACME BUS CORP.
250, 261 (1990); Pacemaker Driver Service, 269 NLRB 971,
976 (1984).
Cafaro reassigned drivers as needed, if there was a change
in passenger loads or if a problem arose with the children
or a driver. Hillside Bus Corp., 262 NLRB 1254, 1270
(1982).
Cafaro had the ability to affect drivers’ pay by investigat-
ing, and if warranted, agreeing that a driver be paid more
time, if he needed more time to complete his route. Van-
guard Tours, supra.
She approved vacation requests for other dispatchers, and
disapproved one where it conflicted with her own.
Baumann accepted her opinion in determining whether to
rehire a terminated employee, and as to company policies.
Drivers apparently regarded her as a supervisor, in that
one testified that she followed the dispatcher’s instructions,
and asked for, and received permission to leave work early.
I accordingly find and conclude that Cafaro is a supervisor
within the meaning of Section 2(11) of the Act.
The evidence is less clear regarding Campbell. Although
Campbell testified that he worked in close coordination with
Schneider, that alone is not sufficient to warrant a finding
that he is not a supervisor. Polynesian Hospitality Tours, 297
NLRB 228, 239 (1989).
It is clear that Campbell assigned drivers to routes which
were open, and that he issued disciplinary notices to employ-
ees. I have analyzed the conflicting testimony of Campbell
and Schneider concerning the issuance of disciplinary notices
as follows: Upon Campbell’s becoming aware of a violation
of the Company’s rules, he informed Schneider of the infrac-
tion, and his decision to write up the employee. Schneider
then advised him of the proper language to be used in the
report.
I find it hard to believe, as testified by Campbell, that on
being asked by Schneider his opinion regarding an employee
who cursed on the vehicle radio and at Schneider in his pres-
ence, Campbell gave no recommendation.
The fact that all the disciplinary notices were written in
Campbell’s hand and signed by him, and no notice was of-
fered in evidence which was allegedly written by the safety
director and not by Campbell, despite the fact that Campbell
denied writing such a report, leads me to believe that Camp-
bell exercised his authority in writing disciplinary notices on
his own.
I am aware that the only instance in which Campbell’s at-
tempt to discharge an employee was met with Schneider’s
telling him that he did not have that authority, but neverthe-
less, the evidence, particularly the written disciplinary notices
signed by Campbell as ‘‘supervisor’’ lead to the conclusion
that he exercised the authority, on his own, to discipline em-
ployees for infractions of company rules. He may have asked
Schneider for guidance in what to write, and even whether
a particular incident warranted a disciplinary notice, but it
appears that the decision to issue a notice was Campbell’s,
based on his becoming aware of the violation. He exercised
discretion in determining that Pozo should not be disciplined
for removing a ‘‘vote no’’ from a dispatcher’s blouse, or for
throwing the button across the room since, as he stated, those
were not violations of company policy.
Campbell also handles problems with parents and Hudson
General. Hillside Bus, supra. Employees regarded Campbell
as a supervisor, telling him on the election bus to get off
since he was management.
In Superior Bakery, 294 NLRB 256, 262 (1989), the
Board found that an employee was a supervisor where, in
part, he was told to issue warnings by a higher supervisor,
and where all warnings had to be countersigned by admitted
supervisors.
The dispatchers’ different rate of pay, salaried with no
overtime rather than hourly paid, and the fact that they re-
ceive a paid, extensive medical plan, are further indicia of
their supervisory status. Superior Bakery, supra.
Based on the above, I find that Campbell is a supervisor
within the meaning of Section 2(11) of the Act.
E. The Discharges
1. Cafaro and Campbell
Inasmuch as I have found that Cafaro and Campbell are
statutory supervisors, their discharges are not protected by
the Act. The General Counsel argues however, that even as-
suming that they are supervisors, they were unlawfully dis-
charged because Respondent believed that they would no
longer commit unfair labor practices. Parker-Robb Chevrolet,
262 NLRB 402, 404 (1982). There is no evidence to support
such a finding on the part of Cafaro.
As to Campbell, as set forth infra, in July he complained
to Schneider and Lynch that he did not like being used, and
played as a ‘‘patsie’’ and did not want to be ‘‘involved’’ any
more. Indeed, thereafter, he did not question employees
about their union support, did not report on employees’
union activities, and did not provide Lynch with union lit-
erature. Nevertheless, thereafter, he told Portnoy at a meeting
with high company officials that he would do what he could
to thwart the Union’s campaign, and later agreed to ride on
the election bus and campaign against the Union. Accord-
ingly, although Campbell may have had misgivings about
continuing his antiunion efforts, he told company officials
that he would do what he could, and acquiesced in following
company orders in that regard. Accordingly, I cannot find
that Campbell was discharged because he refused to commit
unfair labor practices.
In the event that it is ultimately found that Cafaro and
Campbell are not supervisors, I have included a discussion
of the merits of their discharges.
2. Cafaro
Cafaro’s activities undertaken at the behest of Respondent,
are set forth above. However, Cafaro also testified concern-
ing her support of the Union. She stated that she never dis-
cussed the Union with the other dispatchers, and in fact
never told anyone that she supported the Union. Neverthe-
less, she stated that in July, she told driver Neri Van Syckle
that she believed that unions were a good thing. In addition,
on two or three occasions, the last being the day before she
was fired, she commented on the poor condition of the bath-
room, telling dispatchers Lawrence and Miller ‘‘and they say
this company doesn’t need a union.’’ Cafaro wore no buttons
during the Union’s campaign, although the other dispatchers
wore a ‘‘vote no’’ button. She testified that she never told
anyone to vote for the Union, but her pretrial affidavit stated
that she told several drivers that they should do so in order
to improve their conditions.
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cafaro returned from vacation on September 20. On Sep-
tember 30, Portnoy asked her what she thought of the new
wage and benefits package that was being offered to the em-
ployees. She replied that much of the language was a little
misleading. Portnoy said that he would correct the wording,
and asked her what the drivers thought of it. Cafaro an-
swered that she did not have time to speak with them about
it.
That day, Lynch called her into his office and discharged
her, explaining that he told her 1 year before to rotate the
charter assignments, and she had not done so. Cafaro replied
that she had, and that she sent a copy of the assignment
sheet to Baumann, listing the dates that employees performed
charter work, and the names of drivers who refused to do
charters.
Lynch then said that her ‘‘loyalty’’ to the Company was
being questioned, and that Respondent no longer needed a
schoolbus dispatcher. Cafaro asked him why her loyalty was
in question since she never sought another job. Lynch an-
swered that she (Cafaro) knew what he meant. Cafaro stated
that she believed that he was referring to the Union.
A memo authored by Lynch, and dated September 30 lists
the reasons for her termination:
1. Refusing to follow direct orders regarding senior-
ity with respect to assigning charters.
2. Not considered to be a loyal company employee.
3. Economics do not necessitate a dispatcher for the
big bus division.
4. Numerous complaints from employees and man-
agement regarding repeated favoritism.
Cafaro’s responsibilities included the assignment of drivers
to charter work. Such work involves transporting school chil-
dren to and from off-school activities such as sports events
and trips to cultural activities. In addition, charter work also
involves transporting nonschool groups or organizations to
various locations. Drivers seek such assignments because ad-
ditional income, including overtime, may be earned in the
evening or on weekends, after the driver completes his regu-
lar assignments. Much charter work was available. There
were six to seven charters per day during the school year in-
volved herein.
Cafaro conceded that in January, Lynch told her that he
received complaints from drivers that she was not assigning
charters properly, in order of seniority, and that she should
do so. According to Cafaro, that was the only time she was
spoken to by a management official about her assignment of
charters. However, she also testified that following that con-
versation, between January and February, the human re-
sources director told her that drivers Barbara Clark and Carol
Tamburo complained that they were not being given a fair
share of charter assignments. Cafaro admitted that, prior to
her conversation with Lynch, she made the assignments
based on those drivers who were available, and not pursuant
to seniority.
Cafaro stated that prior to her conversation with Lynch,
she was not told that charters had to be assigned by senior-
ity, but following their talk, she made such assignments by
seniority, and posted the seniority list in the driver’s room.
Lynch admitted seeing the posted list in late January or early
February. In making such assignments, she called the drivers
in seniority order. She recorded the dates they did the assign-
ment, and if they could not take the assignment, she wrote
‘‘refused’’ next to their name, and asked the next person on
the list. When she completed the list, she began again from
the top.
Baumann testified that the main reason for Cafaro’s dis-
charge was economic. She was the highest paid dispatcher
who was responsible for the least amount of work. Prior to
her work at Bohemia, Cafaro had been the dispatcher and
person in charge of a contract with the Smithtown school
district. That contract ended in 1985 or 1986, and she was
then transferred to Bohemia. In the school year of 1992–
1993, Respondent had a large contract with BOCES, provid-
ing for about 300 employees, and over 200 van runs. Re-
spondent lost its contract, and with it $5 million in income,
and 200 employees. When the BOCES contract was lost, Re-
spondent had to make reductions in its expenses.
Cafaro was chosen because she was the highest paid dis-
patcher, did not want to dispatch vans, and had made certain
mistakes, by not billing a camp for $4500 for certain work
performed.
Baumann explained that Cafaro was involved with the ad-
ministration of the BOCES contract only indirectly, since she
did not dispatch the vans which were the vehicles used in
the contract, but nevertheless since she was the most experi-
enced dispatcher, she ‘‘oversaw’’ the program, although she
was not ‘‘actively involved.’’
Lynch testified that Cafaro was chosen for discharge be-
cause she handled only 12 to 14 buses, and perhaps a couple
of vans, while the 2 other dispatchers dispatched at least 100
vehicles. Cafaro told him that he assisted the others, but they
told him that she was little help. Lynch then reevaluated her
responsibilities, and considered whether to discharge her. In
such an evaluation, Respondent’s concern was that it had to
reduce its expenses due to the loss of the BOCES contract.
He heard about such loss in June, but in mid-July, following
a court challenge, he learned that Respondent had definitely
lost the contract, and with it about 200 vans and drivers. It
therefore no longer needed three dispatchers. Lynch cited
other reasons for her discharge. She assigned charter work to
her favorite group of employees, including her son, a girl
dating her son, and to driver John Murphy, despite being
told, in 1991 or 1992, not to assign Murphy charter work due
to misbehavior on previous charters. Also Clark and
Tamburo complained that they were not being given charter
work.
Lynch stated that on several occasions between January
and June 1993, he told Cafaro that she must assign charter
work by seniority. He stated that after first being warned, she
made the proper assignments, but then, following a couple of
weeks, she reverted to her previous practice of favoritism. At
that point, Lynch again received complaints. He again con-
fronted Cafaro, and told her that he would not tolerate her
failure to assign charter work fairly, and that she should
make such assignments properly or not at all. Cafaro replied
that she attempted to assign the work to certain people, but
they refused the work. She therefore called the drivers who
she knew would accept the jobs.
Lynch conceded that he did not check any records in order
to determine whether any specific person was given a charter
during the period from January to September. However, in
April, May, or June, he reviewed the timecards of charter
drivers, such as Ula Szobonya and Lisa Fornaratto, in order
469ACME BUS CORP.
to see if they received repeated assignments, and found that
to be the case.
Cafaro’s original seniority list with her notations shows
that Szobonya was first on the seniority list, and received
charter assignments on January 15 and in April, May, and
June. Fornaratto, third on the list, received such assignments
on January 16 and in April, and it was noted that she does
‘‘seniors too.’’ Murphy was noted as doing ‘‘drops only.’’
Clark and Tamburo, numbers four and five, performed as-
signments on January 16 and in March, May, and June.
Lynch explained that Cafaro was not considered loyal be-
cause she made ‘‘inappropriate’’ remarks to certain people
regarding Respondent’s owners and its family, for example
telling employees that the Company is ‘‘lousy,’’ and that she
disliked the Baumann family, calling them ‘‘cheap.’’ He
heard these comments over time, and up to about June. She
was also considered disloyal because she was found to have
charged personal arts and crafts purchases in the amount of
$400 to $500 to the business in December 1992, which was
discovered in April or May.
Driver Clark testified that in the summer of 1993, follow-
ing the election, she complained to Gilman that Cafaro un-
fairly assigned charter work to only certain people. She re-
ceived no charter work that summer. Gilman replied that the
Company was checking into the situation, and that Cafaro
had been told that such assignments must be made in senior-
ity order.
About 1 week before Cafaro was terminated, Clark and
Tamburo approached Baumann and told him about the unfair
assignments, mentioning the names of those who they be-
lieved were given preferential treatment. Baumann was aware
of the situation.
Tamburo testified that in 1992 and 1993, she spoke with
Baumann, Lynch, and Gilman concerning the assignment of
charters. Her last discussion was with Gilman before the
summer of 1993. She made the same complaint as Clark and
Gilman made the same reply. Tamburo complained to Lynch
in the winter of 1993. She stated that following the posting
of the seniority list in January, assignments were made in a
fair manner for only 1 week, but then they were made out
of seniority.
On this record, I cannot find that the General Counsel has
made a prima facie showing that Cafaro’s discharge was mo-
tivated by her union activities. Cafaro’s testimony, set forth
above, was severely brought into question concerning the ex-
tent of such activities. Her hearing testimony contrasted
sharply with her pretrial affidavit on important points con-
cerning whether she told employees to vote for the Union,
and her mentioning the Union to the other dispatchers. Based
on the above, and the fact that her undisputed activities were
all in support of the Respondent’s antiunion campaign, the
evidence supports a finding, which I make, that no prima
facie case has been proven. Wright Line, 251 NLRB 1083
(1980).
3. Campbell
In July, on seeing Campbell in the Jericho facility’s ga-
rage, Schneider asked him what he was doing there and not
at his desk. Campbell replied that he was instructed by
Lynch and Walsh to obtain information about the union cam-
paign. Campbell further said that he felt that he was being
‘‘used’’ by the employer, and that if he did not continue
these activities, his job was at risk. Campbell responded to
Schneider’s question about why he was absent by explaining
that he did not like being ‘‘played,’’ but he was told to do
what he was doing, and he did not feel good about it. Camp-
bell told Schneider to check with Lynch if he had any ques-
tions about his activities. Campbell then told Schneider that
he believed that he was entitled to overtime payments.
Schneider said that he would look into the matter.
Schneider then told Campbell that it appeared that he was
‘‘for the Union.’’ Campbell denied that, but said that he was
for ‘‘betterment of people’s welfare, anything to better peo-
ple’s lives and welfare.’’
That day, Lynch confronted Campbell, telling him that he
heard he was asking for overtime, and was having second
thoughts about ‘‘bringing information to us about [the
Union] and the workers.’’ Campbell replied that he believed
that he was being ‘‘played as a patsie’’ and did not want to
be ‘‘involved’’ any longer. Lynch replied that he wanted
Campbell to ‘‘play ball.’’ He accused Campbell of not being
a ‘‘team player,’’ and urged him to cooperate because no one
would have a job if the Union came in. Lynch also said that
he heard that Campbell was complaining about overtime—
‘‘so you’re for the Union.’’ Campbell replied ‘‘yes, that any-
thing that was for the betterment of the workers and people
in general I am for it.’’
Following that conversation, Campbell did not inquire of
employees whether they supported the Union, did not deliver
any union literature to Lynch, and did not distribute ‘‘vote
no’’ buttons.
Campbell stated that on August 17, he was told by Schnei-
der that he was terminated because Respondent was not
pleased with his performance because he was absent too
many times from his desk, and did not pay enough attention
to his job.
Campbell explained that his frequent absence was due to
his responding to numerous requests for information from
Lynch, Portnoy, and Walsh regarding the drivers’ union ac-
tivities. He estimated that in June and July, he spent about
45 minutes every 2 hours away from his desk speaking to
employees concerning the Union. Campbell conceded that
Schneider told him in early July that he was away from his
desk too often, and Schneider wanted him to be more ‘‘fo-
cused’’ on his responsibilities. At that time, he told Schnei-
der that he should check with Lynch, since he was instructed
to obtain information concerning the Union.
Campbell testified that the ‘‘incessant’’ requests for infor-
mation interfered with and prevented him from performing
his work.
Lynch testified that he was not satisfied with Campbell’s
performance, citing instances where he recorded the same
driver for three separate runs leaving at the same time, and
forgot to assign drivers and matrons for runs. Lynch stated
that he spoke to Campbell about these problems. After re-
peated instances of Campbell’s malfeasance, he rec-
ommended to Schneider that he be discharged.
Schneider testified similarly, and identified instances of the
above in various work sheets. Incidents in which runs are
late result in fines to the Company. The amount of fines as-
sessed in July was over $25,000, compared to $6000 in June.
Respondent was notified in the first week in August of the
July fines. It has not been proven to what extent Campbell
was responsible for any or all of those fines. Schneider stated
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Cafaro conceded not mentioning the phrase ‘‘union meeting’’ in
her pretrial affidavit.
that he counseled Campbell numerous times concerning his
improper completion of the route sheets, and at his discharge
explained in detail his inadequate performance. Campbell
protested, claiming that he did his job.
Campbell testified that prior to his discharge he was never
warned by company officials that he was spending too much
time away from his desk, except that in early July, he was
told by Schneider that he should keep more focused on his
responsibilities.
I find that the General Counsel has made a prima facie
showing that Respondent was motivated by antiunion consid-
erations in discharging Campbell. Both Lynch and Schneider
accused him of supporting the Union, and he agreed with
their accusations. Wright Line, supra.
I further find that Respondent has not met its burden of
proving that Campbell would have been discharged even in
the absence of his union activities. Although Respondent has
pointed to numerous errors in Campbell’s completion of his
route sheets, and Schneider allegedly counseled him numer-
ous times concerning these, his allegedly poor conduct was
apparently condoned throughout the course of his employ-
ment, until he admitted supporting the Union. Apparently
Respondent believed that his support of its antiunion pro-
gram was too valuable to be lost, but when he openly sup-
ported the Union’s efforts, these alleged errors became too
much to tolerate. I accordingly would find that Campbell’s
discharge violated Section 8(a)(3) and (1) of the Act.
4. Joseph Anderson and Tommy Edmond
Joseph Anderson, a driver, became employed by Respond-
ent in 1986. He and Tommy Edmond, who started work for
Respondent in 1981, left in about 1987, and returned in
1989, were first employed in Bohemia. They were both
transferred to Jericho in 1992, when it opened, in order to
train the new drivers who were being hired to work at that
location. This training ceased in August, when Basile told
them that they had to be certified, which they were not, in
order to train other drivers. Anderson received certificates of
appreciation for ‘‘outstanding performance,’’ in December
1991, and both he and Edmond received another in Septem-
ber 1992.
Anderson participated in the union campaign by distribut-
ing literature to 15 to 20 employees in the garage and lunch-
room, asking other employees to sign cards for the Union,
and signing a card for the Union. He attended union meet-
ings, and wore a union button.
Edmond stated that he did not speak to the union agents
who were at the Respondent’s gate. Anderson and Edmond
regularly ate lunch with the Pozo brothers and others in the
garage or on a company bus.
Dispatcher Cafaro testified that in May or early June, Gil-
man told her that Anderson and Edmond were seen in their
bus in the Jericho yard having lunch, speaking to other peo-
ple there, and holding a union meeting in the bus.7 Gilman
said that she believed that they were the ‘‘two big union peo-
ple.’’
In August, Anderson and Edmond were told by Gilman
that they would be transferred back to Bohemia, because
they had a right to pick a run for the new school year, and
they were high on the Bohemia seniority list. They told her
that they preferred to stay in Jericho, and she asked them to
sign a waiver of their right to return to Bohemia, and they
did.
During that conversation, Gilman told them that she heard
that they were ‘‘unhappy’’ at the Company, and asked
whether that was true. They both denied it. She asked them
if they were involved in the Union. Anderson admitted dis-
tributing literature. She told Edmond that she heard that he
was ‘‘instigating’’ employees to sign for the Union. Edmond
denied that. She further told him that she heard his name
mentioned frequently concerning the Union. She then asked
them whether they would cross a picket line if the Union
struck. Both said that they would not cross a picket line. Gil-
man then told them that she was happy that they were stay-
ing in Jericho.
On August 23, Anderson submitted a request for 6 days’
vacation, with his last day of vacation listed as Tuesday,
September 7. He testified that he was supposed to return to
work on September 9. On September 9, Respondent sent a
mailgram to his home, which stated ‘‘due to abandonment of
your job, your services are no longer required.’’
During his vacation in North Carolina, Anderson had me-
chanical problems with his car. He returned home on Sep-
tember 10 or 11, and reported to work on September 13. He
did not contact Respondent concerning his extended absence.
Upon his return, he was told by Official Lynch that he was
terminated for abandonment of his job since he did not notify
the Company.
Schneider made a decision to terminate Anderson before
he spoke with him. Schneider testified that Anderson told
him that he did not think it was necessary for him to phone
the Company because he was employed for such a long pe-
riod of time, adding that he said that he bought a coach and
a van and would operate his own bus company. Schneider
concluded that he did not care about his job, and told him
that he was terminated for not calling and not appearing for
2 consecutive days.
Lynch testified that on the day of Anderson’s discharge,
Anderson admitted to him that he was aware of the Compa-
ny’s policy of ‘‘2 days no call/no show,’’ but that he did not
believe that he had to call because his vehicle was broken
down in North Carolina. Lynch testified similarly to Schnei-
der that he did not give employees another chance if they re-
turned after being out without calling for 2 days.
Edmond testified that on Monday, August 30, due to a
change in plans, he was required to take his son to college.
He was away from work the following day, also. He stated
that he tried to call the Company with this information but
there was a delay in getting through, and was kept on hold.
Edmond returned to work on September 1. He signed a
disciplinary notice which stated that he failed to call in on
August 30 and 31. The form, which did not have first notice
or final notice checked off, said that ‘‘a final notice shall re-
sult in immediate dismissal or suspension.’’
Thereafter, Edmond worked continuously until September
17. At that time, Manager Schneider told him that he was
terminated for not calling in and not appearing for 2 days.
Anderson and Edmond denied any knowledge about a
company policy permitting discharge if the employee did not
call in or appear for 2 consecutive days. However, Anderson
471ACME BUS CORP.
8 Babai, Castaneda, Davidson, De Feo, Golden, Marter, Moreno,
and Schramm.
9 Moreno, Babai, DeFeo, and Golden, who were terminated during
the period January to April 27, 1993.
conceded that he was aware of his obligation to call Re-
spondent in the morning if he could not come to work.
Edmond stated that prior to these incidents, he had never
failed to appear at work without notification, or not called
to report that he would be absent. Anderson stated that he
was never absent or late.
Respondent’s employee handbook, issued in 1979, states
that immediate dismissal or immediate indefinite suspension
pending review will result from ‘‘failure to report to work
three (3) days in succession without notification to the com-
pany.’’ Dispatcher Cafaro testified that the 3-day rule was in
effect throughout her employ with Respondent. She further
stated that if the driver did not call or appear for 3 days, but
came to work on the fourth day, and had not yet been writ-
ten up for this infraction, he would be assigned to the same
run, at her discretion. In addition, Cafaro stated that she was
unaware of any employee at her facility who was disciplined
or terminated for two instances of ‘‘no call/no show.’’
Similarly, dispatcher Campbell testified that five or six
drivers were no call/no show each day. There have been in-
stances where a driver did not call or appear for 3 or 4 days,
and the route was filled by a replacement driver, and on his
return, he was given his original route. In contrast, Campbell
also stated that there had been an instance where an em-
ployee did not call and did not appear for 1 day, and his
route was taken away. Campbell further testified that em-
ployees were discharged for not calling and not appearing for
2 or 3 days. He also testified that, prior to June, no one was
discharged for violating the no call/no show policy.
Baumann testified that the 3-day policy was changed in
the early 1980’s, and a written policy change was made by
memo of January 9, 1990, sent to all dispatchers, which gave
instructions concerning details to be put on termination re-
ports. An example given was ‘‘when an employee is termi-
nated for two (2) days no call/now show, both dates MUST
be written on the Termination Report.’’
Schneider stated that Respondent’s policy, since at least
December 1992 when he was hired, was that when an em-
ployee does not call and does not appear for 2 consecutive
days, the supervisor or dispatcher informs Schneider and a
mailgram or call is made to him, advising him to see Schnei-
der. He then discharges the employee. Schneider further tes-
tified that, in his experience, no one had come in on the third
day with an excuse that warranted his retention. He further
stated, however, that if an employee was involved in a car
wreck and could not call in for 3 days, he would not imple-
ment this policy.
Lynch testified that employees who do not call or appear
receive a disciplinary notice. The first infraction calls for a
verbal warning, then a first written warning, then a final
warning, and after the second time they are terminated. This
apparently refers to an employee who has been no call/no
show for only 1 day at a time, on different occasions, since
Lynch further testified that if an employee is a no call/no
show for 2 consecutive days he is terminated, and sent a
mailgram.
Termination reports of eight employees who were dis-
charged for being absent without calling for 2 days, were re-
ceived in evidence.8 Three involved terminations of employ-
ees prior to the advent of the Union.
However, the General Counsel offered documents which
cast some doubt on the uniform enforcement of this alleged
policy. Thus, a disciplinary notice for Suzanne Schramm,
signed by Schramm and dispatcher Lawrence stated that she
was no call/no show on March 29, 30 and 31, and April 1.
However, her termination report showed that she was termi-
nated on March 9, 1993, and stated that she was no show/no
call on ‘‘3/8/93 & 3/8/94,’’ and Respondent’s witness testi-
fied that Schramm did not work between March 9 and 29,
1993. There is no record that Respondent sent her a
mailgram informing her of her termination. As to other em-
ployees who were discharged for two instances of no call/no
show, there was similarly no evidence that they were sent
telegrams terminating them.9
Kathleen Clarke received disciplinary notices which stated
that she was no call/no show on November 16 and 17, 1992.
Respondent’s records reflect that Clarke quit on March 11,
1993. There was thus no evidence that she was discharged.
Disciplinary notices dated November 9 and 10, 1992, for
Patricia Widman state that she failed to call in. Respondent’s
records indicate that she quit on November 20. This evidence
does not appear, at first blush, to support the General Coun-
sel, since she was not charged with being absent on those
dates—only failing to call in. However, it must be noted that
the disciplinary notices issued to Alfred Johnson, who was
discharged, similarly noted only that he had failed to call in
on two consecutive occasions for which he was fired. Thus,
Widman may have, in fact, also failed to appear on Novem-
ber 9 and 10, and therefore this would be further evidence
of an individual who had two no call/no shows but was not
discharged.
5. Frances Barker
Frances Barker became employed in September 1992, and
worked as a van driver. She signed a card for the Union, and
attended union meetings.
In October, following the election, she distributed union
leaflets to all 18 parents on her route, either in the company
vehicle or in her own car. The leaflets stated, in part, that
the employees did not have medical coverage, dental plan,
life insurance, sick days, or paid vacation, and that the work-
ing conditions were ‘‘poor and deplorable.’’
On November 9, Respondent issued the following rules to
its employees:
1. There will be no distribution of literature of ANY
kind during working hours in working areas.
2. Any employee who jeopardizes the jobs of all of
us by spreading false information to the public will be
dealt with appropriately.
3. EMPLOYEES SHALL NOT MAKE ANY
STATEMENTS to customers or clients which are dis-
paraging or derogatory towards the company since that
can jeopardize all of our jobs. Violation of this rule will
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This must be contrasted with her testimony at a NYS Unem-
ployment Insurance hearing that she did not give any literature to
anyone.
result in disciplinary action, up to and including dis-
charge.
4. You may distribute literature during non-working
hours in non-working areas.
Barker admitted giving a leaflet to Betty Andreadis, the
mother of a child she drove, in October.10 Andreadis asked
her if she was the steady driver. Barker said that she was.
Andreadis answered that she was happy at that because the
Company assigned different drivers to transport her child.
Barker stated that the adult babysitter for a child she
drove, Baker, asked her about employee benefits. Barker told
either her or Mrs. Baker that Respondent does not provide
vacations to its employees, and only pays 1/2 day for time
taken when the employee is sick. Barker admitted having
read the above rules when she made these comments. In Sep-
tember, Respondent implemented benefits such as vacations
and sick days.
Barker stated in her pretrial affidavit that Mrs. Andreadis
asked her about the Company’s benefits, and she replied that
they ‘‘stink,’’ in that there was no accidental death benefit,
no vacations other than days on which school was closed,
and 1/2 day for sick time.
Barker denied saying anything to any parent about vaca-
tion or insurance. That of course is contradicted by her testi-
mony above, and by her pretrial affidavit which stated that
she told the Baker parent or babysitter, in answer to a ques-
tion about Respondent’s benefits, that there was no life insur-
ance, no vacations, and 1/2 day for sick days.
At hearing, Barker admitted that her statement that Re-
spondent offered no paid vacations was false.
On November 30, a letter was sent by the Massapequa
Public Schools to Baumann, which stated that it had received
a letter from the Andreadis in which they expressed a con-
cern about the high turnover of drivers on their child’s route,
and sought to keep a regular driver employed thereon.
Baumann caused an investigation to be conducted, and it was
determined that Barker spoke to Andreadis concerning com-
pany benefits and working conditions.
On December 9, Schneider discharged Barker for violating
paragraph 3 of the Company’s rules, above. Schneider testi-
fied that at the discharge interview, at which Lynch was
present, Barker admitted telling a parent that the Company
‘‘sucked,’’ did not care whether they died, and that the em-
ployees had no benefits, and working conditions were ter-
rible. Schneider determined that Barker had violated para-
graph 3 by her remarks to a parent that the Company
‘‘sucked,’’ and that they had no benefits, which was a false
statement.
Interestingly, Lynch testified that at that meeting that
Barker did not admit telling a parent that the Company
‘‘sucked,’’ but conceded telling a parent that Respondent did
not provide any insurance, which was a false statement since
health insurance benefits were available. This is supported by
Barker’s testimony that at her discharge interview, Schneider
told her that she had opted not to contribute toward the em-
ployer’s health benefits plan. That statement would logically
have been made on Barker’s telling him that she told a par-
ent that Respondent did not provide insurance, as testified by
Lynch.
6. Alfred Johnson
Alfred Johnson became employed in April 1993. He
worked primarily as a coach driver for charter trips, but
when such work was not available he accepted assignments
as a schoolbus driver.
He conceded participating in the union campaign in a
‘‘minor way.’’ He signed a card for the Union, spoke to
union representatives who stood outside the company gates,
wore a union button at all times on his shirt or bag, and
spoke to other drivers about the Union. Campbell testified
that Johnson spoke with him and others about the Union, and
that he saw Johnson wearing a union button.
Johnson testified that on September 7, he had just returned
from an assignment in Virginia, and was called at home by
Charter Supervisor Eileen Meyer. She said she had a charter
run for him at 5:30 the following morning. Johnson stated
that he replied that he wanted 1 week’s leave of absence, if
possible, but if that request would be a ‘‘problem’’ he did
not need the time off. According to Johnson, Meyer said that
she would have to check with Lynch, and she would call him
later. On cross-examination, Johnson conceded that Meyer
told him to report at 5:30 the following morning, and in a
second conversation, he asked her for a leave of absence.
Johnson further stated that later that day, Sue Martines, a
clerical employee who worked with Meyer, called him and
told him that his leave was approved, and he had to sign a
form.
Accordingly, Johnson believed that he was on leave begin-
ning immediately, and did not report to work the following
morning to operate the charter. On September 9, Respondent
sent a mailgram which stated, in part, that ‘‘due to job aban-
donment your services are no longer required.’’ He did not
sign a leave of absence form prior to his termination.
A few days later, he met with Lynch, who told him that
he was fired because he abandoned his job, and did not ap-
pear for work. He told Lynch that he had asked for a leave
of absence. Lynch replied that Martines had no authority to
grant such a leave. Johnson answered that he did not think
that Martines was granting the leave, but was simply relaying
a message that the leave was approved, and that he would
have expected the Company to call to inquire why he did not
appear for work. Lynch replied that Meyer said she called
him at 6 a.m. the day he was supposed to take the charter.
Johnson denied receiving the call.
Meyer testified that Johnson agreed to take an Atlantic
City charter the following day, and also requested a 1 week’s
leave of absence. Her testimony was confused as to which
matter was discussed first, but nevertheless the import of her
testimony was that he agreed to take the run, and he re-
quested the leave.
Meyer told him that if he completed the proper paperwork
she could approve the leave of absence. She said that she
would put the leave of absence form in an envelope contain-
ing materials for the next day’s charter.
Later that day, she told Lynch that Johnson wanted a leave
of absence. Lynch said that if Meyer could spare him, he
should be granted the leave. Meyer then prepared the paper-
work for the leave of absence and charter run, and asked
Martines to call Johnson and confirm that she (Meyer) would
473ACME BUS CORP.
be at the terminal at 5:30 the next morning to present the
leave of absence paperwork to Johnson so that he could sign
it, return it to her, and she would have it processed.
Interestingly, Martines first testified that Meyer instructed
her to call Johnson only to confirm his reporting time for the
next day’s charter, and nothing about the leave of absence
request. However, Martines later testified that Meyer told her
that Meyer would meet Johnson the following morning to re-
ceive the leave form.
Martines testified that she phoned Johnson and confirmed
his reporting time. Johnson agreed with the time, and said
that he wanted a leave of absence. Martines replied that she
did not handle that and could not authorize it, and that he
had to speak with Meyer or Lynch concerning the leave. She
then told Johnson that Meyer would meet him at the terminal
the following morning to receive a leave of absence form
that would be in the charter’s envelope. Johnson agreed.
Martines denied telling Johnson that his leave of absence
had been approved, and Meyer denied instructing her to tell
Johnson that the leave was approved.
Respondent’s 1979 employee manual provides that leaves
of absence will be granted for ‘‘sickness or accident impair-
ing health’’ for up to 30 days, and that a leave of absence
form must be filled out. Although a new manual was effec-
tive in August 1993, it was not offered in evidence, and there
was no evidence that this provision was modified.
Disciplinary notices were issued on September 8 and 9 to
Johnson for failing to call in. The notices did not indicate
that he failed to appear.
7. Pedro Pozo
Pedro Pozo became employed by Respondent in October
1992 as a driver’s assistant. In December 1992, on receiving
a CDL, he worked as a driver. At the time of his discharge,
he transported mentally handicapped adults to work programs
pursuant to a Community Support Service (CSS) contract.
Pozo first spoke to union representatives in the spring of
1993, and he conversed with them at the gate to the Jericho
facility. He attended a few union meetings. At one of them
he received union authorization cards which he distributed to
40 or 50 employees at the Jericho facility in the company
of his brother Orlando, Rupert McIntosh, and another em-
ployee. He also distributed union leaflets to other drivers, as
did Orlando, Joseph Anderson, and McIntosh. Pozo wore a
union button every day. Baumann testified that during his
conversations with Pozo, discussed below, he did not see a
union button on Pozo’s person.
During Pozo’s daily 4-hour break, in between driving as-
signments, he associated with Orlando, Anderson, and
Tommy Edmond. During the breaks, they spoke about union
matters and solicited other drivers to sign cards for the
Union.
Pozo was given a ‘‘vote no’’ button by Campbell which
he immediately threw into the garbage, and as set forth
above, Campbell was asked to watch Pozo because he de-
stroyed the button, and also, Lynch told Campbell that he
heard about Pozo removing Denise’s button. Lynch further
told Campbell that Pozo was an employee who should be
written up when the opportunity arose. Nevertheless, Camp-
bell did not write him up for the button incidents because he
did not consider that a violation of company rules. Lynch
also told Campbell that he did not like Pozo because they
had an altercation that almost led to blows, and he advised
Campbell to ‘‘watch him.’’
On August 4, a man who was a regular passenger on
Pozo’s bus offered to sell him a small, hospital-type tele-
vision for $10, which Pozo purchased. The man’s residence
home informed Respondent. Baumann testified that he spoke
to Pozo about the incident, suggesting that Pozo took advan-
tage of the man because the television was worth more than
$10, and telling him that it was not a good idea to become
involved with a bus client, and suggested that he should re-
port any such solicitations to his dispatcher or the customer.
Baumann asked him to return the television and Pozo did.
Pozo denied that, prior to his discharge, he was spoken to
by any company representative regarding something he did
wrong, but he conceded being asked to return the television.
In late July, while driving a bus with passengers, Pozo ex-
perienced difficulty with the brakes. He testified that he
called his dispatcher, and told her the problem. She directed
him to continue his run because it was difficult to obtain a
relief driver so late in the day. Pozo refused, citing the un-
safe condition of the vehicle. He discharged all the riders at
one location, instead of driving them to their designated
stops, and did not make a pick up at another stop. He then
returned to the Jericho garage.
On his return, he told the mechanics to check his brakes.
The brakes were repaired and Pozo used the same bus the
following day.
Shortly thereafter, Baumann met with officials of the Nas-
sau County Department of Mental Health which oversees the
CSS program, during which they criticized the Employer’s
performance of its contract, and threatened to cancel its $10
to $12 million contract. Baumann was given a letter from the
Peninsula Counseling Center dated August 8 which com-
plained that the bus did not pick up its clients on the day
in question, and other matters regarding the driver.
Baumann went to the Jericho facility and learned that the
driver in question was Pozo. Baumann testified that at a
meeting with Pozo and Orlando, Pozo explained that the bus’
brakes were smoking at the Atlantic Motel. He called the
dispatcher who told him to stand by. After 30 minutes, he
left the passengers at the Atlantic Motel, whereas they were
supposed to be taken to their regular stops. Pozo told him
that he could not get a clear answer from the dispatcher
whether to leave or not, and decided himself to discharge the
passengers and leave. Baumann told him that he should have
phoned if he could not communicate with the dispatcher
through the bus’ radio.
Pozo then told Baumann that on his return to the terminal
he wrote on the vehicle’s Daily Vehicle Pre-Check Report
and Defect Report that the bus’ brakes were defective.
Baumann then requested the report from the receptionist and
showed Pozo that no defect had been noted. Pozo’s expla-
nation was that mechanic Mike Mireider told him not to re-
port the defect because Mireider would be discharged.
Baumann then told Pozo that he falsified company records
and was in violation of state law. Pozo agreed, but said that
he did that in order to save Mireider’s job. Baumann said
that this error was considered very serious by the New York
State Department of Transportation, and the employer could
have received a stiff fine.
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Campbell’s testimony that the receptionist was searching for
Pozo’s defect slips 2 days prior to his discharge does not show that
Respondent sought to uncover evidence of wrongdoing that did not
exist. Rather, it supports Respondent’s chronology of events, that
when this matter came to Baumann’s attention he investigated its
circumstances, and requested the slips from the receptionist.
Baumann stated that Pozo may have been discharged 2 days after
their conversation, thus supporting Baumann’s testimony that the re-
quest for the slips occurred during their meeting, 2 days earlier.
According to Baumann, Pozo then threatened that if some-
one sought to fire him, he would shoot or kill them. Pozo
denied arguing or threatening any company official.
Pozo conceded forgetting to write that the bus was defec-
tive on his return to the terminal that day. Instead he filled
out the form prior to this run, at which time he routinely
checked the box which said ‘‘no defects.’’ He stated that he
was aware that it was his responsibility to note any defects
encountered during the course of his operation of the vehicle.
Baumann then spoke to Mireider who denied telling Pozo
to conceal the bus’ defects. A recommendation was then
made to discharge Pozo and that was done. Pozo stated that
on August 13, Schneider told him that he was terminated for
falsifying Department of Transportation documents. Baumann
stated that the discharge occurred either that day, or within
the next 2 days.
Dispatcher Campbell testified that around the time of the
July 30 election, he overheard Walsh asking Lynch what
could they ‘‘find on’’ Pozo, noting that his attendance was
excellent. Walsh then said that the only thing they could
‘‘look into’’ were the Department of Transportation papers.
Campbell estimated that this conversation occurred 2 days
before Pozo’s discharge. Campbell further stated that 2 days
before Pozo’s discharge, which was 2 weeks after the elec-
tion, the receptionist complained to him that she was directed
to look through Pozo’s DOT slips.11 Campbell further stated
that Lynch told him that Pozo was discharged due to prob-
lems caused by Pozo’s DOT papers not being ‘‘up to date,’’
and because he falsified those papers.
Pozo testified that he and his brother Orlando engaged in
their union activities together, such as distributing fliers and
buttons and speaking to other employees. Orlando remained
employed following Pedro’s discharge, and was still em-
ployed at the time of the hearing.
8. Neri Van Syckle
Neri Van Syckle began work for Respondent in 1983 as
a van driver, but left in 1984. She returned in 1991, and was
employed by it thereafter. At the time of her discharge she
drove schoolbuses from the Bohemia terminal.
Van Syckle’s initial union activities included accepting a
flyer, attending union meetings, and signing a card for the
Union. Immediately following a union meeting she attended
in May, she distributed union leaflets and union membership
cards, made phone calls to 40 to 100 workers in behalf of
the Union in which she asked employees whether they sup-
ported the Union, and asked them to attend union meetings.
She also spoke to other workers about the Union. She dis-
tributed union leaflets on and off the company premises and
at a restaurant one block from the terminal. She stated that
she distributed more than 100 flyers and authorization cards
from May to the election on July 30. She also helped orga-
nize recruitment meetings, and wore a union button.
Van Syckle testified that Gilman asked her why she want-
ed a union. Van Syckle replied that Respondent was ‘‘un-
fair’’ to the drivers concerning seniority, hours of work,
medical benefits, and sick time. Gilman told her that she just
returned to the business following the recent death of her fa-
ther, who was the owner of Respondent, and was being
‘‘hit’’ by all the unions. Gilman asked for a chance to work
with her. Van Syckle asked why drivers could not earn 1/2
sick day per month. Gilman answered that her father never
awarded sick days because he believed that employees would
abuse them, and that she (Gilman) would never do so either.
Van Syckle replied ‘‘that’s why this company needs a
union.’’
In late June or July, Van Syckle posted a union notice of
meetings on a bulletin board near the Bohemia dispatch of-
fice. Dispatcher Barbara Lawrence removed it, threw it into
the wastebasket and told her to take her union garbage out-
side.
Dispatcher Cafaro testified that in early July, Gilman told
her that she saw Van Syckle distributing union leaflets, and
that she (Gilman) could not ‘‘believe it,’’ adding that we
have to ‘‘find some way to get rid of her.’’ Respondent as-
serts that that statement should not be credited because it was
not contained in Cafaro’s pretrial affidavit. I credit Cafaro.
She stated in her affidavit that several times, Gilman reported
to her that she observed Van Syckle distributing union cards
and speaking to other employees about the Union, and that
‘‘we really can’t have this.’’ In addition, Gilman did not tes-
tify, and thus Cafaro’s testimony stands uncontradicted.
Thereafter, Gilman told Cafaro that Van Syckle had every-
one’s phone number, and asked her whether Van Syckle
looked through Cafaro’s rolodex. Cafaro denied that she had
done so.
Apparently learning about this inquiry, Van Syckle asked
Gilman whether she was being investigated for taking phone
numbers from the office rolodex. Gilman replied that she
was, because about 43 drivers had told her that Van Syckle
called them, and Gilman assumed that their phone numbers
were obtained from office records. Van Syckle denied using
the rolodex, and Gilman asked how she got their phone num-
bers. Van Syckle replied that she obtained them from the
telephone Company’s information service, the union cards
the employees completed, and from workers who knew the
phone numbers of other employees.
Van Syckle also told Gilman that she heard that Gilman
believed that Van Syckle had called in the Union to organize
the employees, and that was not true. Van Syckle added that
she would have called a ‘‘meat cutters union’’ to represent
the workers. Gilman replied that that was the ‘‘rumor mill
and we had to put a stop to it.’’
On August 30, Van Syckle was discharged following a
traffic accident while driving a bus. The reason for discharge
was that this accident, which occurred on August 26, was the
second ‘‘preventable’’ accident she was involved in. The first
accident occurred on January 13, 1992. She was discharged
for having two preventable accidents. Safety Director Bennett
Basile defined a preventable accident as one which could
have been avoided if the driver was paying attention, not fol-
lowing too closely, not speeding, or did not do everything in
her power to prevent the accident.
Van Syckle conceded to having being told, in late 1991,
that two preventable accidents are grounds for termination at
475ACME BUS CORP.
Respondent’s discretion, and acknowledged at an unemploy-
ment hearing, that she could be discharged for that reason.
Van Syckle claims, however, that the January 1992 acci-
dent was not preventable, and was not viewed by Respondent
as being preventable. On that occasion, her bus hit a vehicle
in the rear at a stop sign. Her police report statement taken
at the time indicated that she believed that the other driver
backed into her, but another accident statement noted that the
other driver pulled into traffic, she pulled up to the sign, and
looked away from the front of her vehicle, and was then
struck. At the time of that accident, Van Syckle was notified
that she would be suspended for having a preventable acci-
dent, but the following day, the suspension was rescinded
pending receipt of the police accident report.
Thereafter, in March 1992, the report was received. The
officer stated that the driver of the other vehicle stated that
he was stopped, waiting to enter the roadway safely, when
struck in the rear by the bus. He reported Van Syckle as say-
ing that she ‘‘stopped staring forward and believes she
wasn’t moving. She thinks [the other driver] put car in re-
verse and struck her.’’ The officer also noted, by code, that
Van Syckle’s actions were an apparent contributing factor to
the accident. No such notation was made for the other driver.
It was noted in a company memo that the report ‘‘faulted’’
her for the accident, but due to the length of time involved,
the suspension would not be enforced, and no disciplinary
action was taken.
Thereafter, on August 26, Van Syckle’s bus was in an im-
proper lane, and struck a vehicle on the bus’ left side. This
was determined to be Van Syckle’s second preventable acci-
dent and she was discharged.
Van Syckle disputes that the 1992 accident was prevent-
able, and that it was treated as such by Respondent. She tes-
tified that following receiving a letter of suspension, she was
told by Assistant Safety Director Erickson that ‘‘everything
is fine and clear, you are okay,’’ and that Basile permitted
her to continue to drive. However, it appears, based on
Basile’s testimony, and the memo written at the time, that
the suspension was immediately lifted pending receipt of the
police report, not because she was cleared of any fault in that
accident. Basile further testified that, on receiving the police
report, his opinion that the accident was preventable re-
mained, especially since it was a rear end collision.
Van Syckle further claims that a letter she received from
Respondent on June 7 shows that the 1992 accident was not
her fault. In about June 1993, her personal insurance com-
pany raised her rates due to the two accidents on her record.
When she protested to the insurance company, she was told
to obtain a letter from Respondent stating that the accidents
occurred while she was driving company vehicles, and not
her personal vehicle. Van Syckle then asked Basile for a let-
ter stating that she was driving company vehicles at the time
of the accidents. Basile wrote her a letter which stated that
the 1992 accident was ‘‘not her fault. Occurred while she
was performing her duties as a bus driver for Acme Bus
Corp.’’
Van Syckle argues that this proves that Respondent be-
lieved that the 1992 accident was not preventable. However,
Basile testified that he wrote the letter as a favor, and that
she insisted that he write that the accident was not her fault.
Van Syckle denied asking him to write anything about fault.
I need not resolve this controversy. The evidence is sufficient
to support a finding that Respondent believed, at the time of
the January 1992 accident, that this rear end accident was
preventable. The police report, taken together with Van
Syckle’s statement, led Basile to believe that the accident
was preventable. Further, reports were received in evidence
of six drivers who were terminated during the period July
1989 through September 1993, (five of such discharges oc-
curring prior to the Union’s advent) for having two prevent-
able accidents.
F. Implementation of a Wage and Benefits Package
The complaint alleges that on about September 7, Re-
spondent unlawfully implemented a wage and benefits pack-
age which included increases in vacation and sick time bene-
fits.
The General Counsel relies on Cafaro’s testimony, set
forth above, to support this allegation. Cafaro testified that,
beginning in April, she and other dispatchers were directed
by Respondent to find out what kinds of benefits they want-
ed, which they believed that the Union would obtain for
them. At a meeting in May, the drivers stated what benefits
they sought, and Portnoy offered to resolve the drivers’ prob-
lems. In July, a new wage and benefits package was shown
to the dispatchers, with instructions that they discuss it with
the drivers in an effort to persuade them to change their vote
from the Union to Respondent.
On September 6, the status of the representation matter
was that the Union had won the election, and the Employer’s
objections thereto were pending. On that day, Respondent
issued its wage and benefits package for 1993–1994 with the
following letter, in relevant part, signed by Gilman:
As you know, in the beginning of each school year
we review our wages and fringe benefits and make
changes if we feel we are able to. This year is no dif-
ferent.
I have heard you. I know your needs and concerns.
This is part of my effort to address them and to help
us achieve our objectives. Of course, the schoolbus
business is highly competitive and in order to maintain
jobs we must move ahead with caution. There is no
quick fix solution for all of the things we must achieve
together. It is going to take some time. We must edu-
cate our customers who in turn must educate the tax-
payers so that the bids can include enough money to
maintain decent wages and decent conditions.
Teamsters Local 868 has no knowledge of the bus
industry. They want you to pay for their training. Let’s
not let them learn here where mistakes could cost us
our company and you your jobs. There is only one way
to make sure that we continue to move forward: with-
out a strike—by keeping the Union outside. If we fail
you, you know how to reach them. The money that you
would have spent for dues can now be used to offset
the cost of health insurance.
I will continue to meet with small groups to get
input and work towards making all of us part of the so-
lution and not the problem. Anyone who wishes to
serve on a committee, should give your name to a dis-
patcher.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vacation benefits were increased in the September 1993
package, over what had been given the employees in the
package implemented in September 1992. The new benefit
provides that employees having 1 year or more of employ-
ment were entitled to a 5-day vacation, and those having 3
or more years of employment were entitled to a 10-day vaca-
tion.
The 1992 vacation benefit provided that employees em-
ployed for 1 year were entitled to a 2-1/2 day vacation, and
those employed for 2 years were entitled to a 5-day vacation.
Those employed for 5 and 8 years were entitled to 6 and 7
days, respectively.
The 1993 package increased the wages of employees: for
busdrivers newly hired, employed for 90 days, and employed
for 1 year, the rates were $10.25, $10.40, and $10.55, respec-
tively, compared to the 1992 rates of $10, $10.15, and
$10.30. The 1992 rates contained a 5-year wage rate of
$10.65 which was not included in the 1993 schedule. In ad-
dition, in 1993, all busdrivers were scheduled to receive a
25-cent-per-hour raise or the rate in their progression, which-
ever was greater. That provision was not contained in the
1992 schedule.
For 1993, the van drivers’ rates were: $8.20, $8.30 and
$8.40 for those newly hired, employed 90 days, and em-
ployed 1 year, respectively. Those with 2 years of service,
would receive 20 cents per hour or $8.60, whichever was
greater. In addition, all van drivers would receive a 20-cent-
per-hour increase or the rate in their progression, whichever
was greater. In 1992, the rates were $8 for those newly
hired, and $8.10 for those employed for 90 days. There was
no enumerated wage rate for those employed for 1 year, but
those employed 2 years and 5 years had a rate of $8.40 and
$8.65.
In 1993, drivers’ assistants would receive $6.15 to start,
$6.30 after 90 days, $6.35 after 9 months, and $6.40 after
1 year. They were to receive a 15-cent-per-hour increase or
the wages set forth above, whichever was greater. In addi-
tion, drivers and drivers’ assistants who regularly handle
wheelchair students are to be paid 25 cents per hour above
the regular pay rate for wheelchair runs only. In 1992, the
drivers’ assistants received $6 per hour to start, and $6.15
after 3 years.
In 1993, Respondent implemented a sick day policy which
replaced the ‘‘bonus’’ policy included in the 1992 package.
Eligible employees were those employed for at least 6
months, and employed 5 days per week. The new sick day
program provided that employees with perfect attendance
records shall receive 1/2 sick day for every 30 days worked
up to a maximum of 6 days per year.
The 1992 bonus plan provided for 6 days’ incentive pay
for those hired before September 1992, and for 5 days’ pay
for those hired after September 1992, but before March 1993.
There is a sliding scale for such employees depending on the
date of hire. In addition to perfect attendance, the employee
must not have had any ‘‘preventative, comparable or neg-
ligent accidents’’ and work both the morning and afternoon
shifts.
Baumann testified that he reviewed the employees’ bene-
fits annually, and normally issues a new wage and benefits
package in September of each year, as that time coincides
with the new school calendar, and additional school contracts
that Respondent secured. Employee witnesses confirmed that
new wage and benefits packages are distributed in September
of each year. Dispatcher Cafaro testified that, in the past,
meetings were held with the dispatchers to announce the new
package of wages and benefits.
The health benefit plan offered to employees in 1993 was
in response to employees’ complaints that their weekly con-
tributions to the plan were too high. Accordingly, in 1993,
the Respondent made a greater contribution to the employ-
ees’ health benefits, and the employees paid a lower amount
than in 1993, resulting in a savings of at least $14.75 in their
weekly pay.
G. Analysis and Discussion
1. The alleged violations of Section 8(a)(1) of the Act
a. The implementation of increased wages and benefits
The complaint alleges that on September 7, Respondent
unlawfully implemented a wage and benefits package which
included increases in vacation and sick time benefits.
Respondent annually reviews its wages and benefits at the
start of each school year and based on its contracts deter-
mines the package to offer its employees.
Accompanying the introduction of the new wage and bene-
fits package was Gilman’s letter, set forth in full above, in
which she stated, in part, ‘‘I have heard you. I know your
needs and concerns. This is part of my effort to address them
and to help us achieve our objectives.’’ At this point in time,
the Union had won the election and the Employer’s objec-
tions thereto were pending.
An employer’s grant of benefits in order to dissuade them
from supporting a union violates Section 8(a)(1) of the Act.
Capitol EMI Music, 311 NLRB 997, 1012 (1993). However,
the grant of such increases is legally permissible ‘‘if it can
be shown that an employer was following its past practice
regarding such increases or that the increases were planned
and settled upon before the advent of union activity.’’ Id.
Respondent has clearly established that it has a history of
granting increases in September of each year. These in-
creases were not made hastily, immediately on the advent of
the Union. Rather, they were made pursuant to its past prac-
tice of reviewing its contracts at the beginning of the school
year, and then deciding what increases to offer. Stanton In-
dustries, 313 NLRB 838, 857 (1994).
I am troubled, however, by the context in which the new
wage and benefits package was presented. They were intro-
duced with Gilman’s letter, set forth above, which also in-
cluded a plea to ‘‘keep the Union outside,’’ with a reference
that the ‘‘only way to make sure that we continue to move
forward without a strike’’ is by ‘‘keeping the Union out-
side.’’ The letter also mentioned that the Union’s lack of
knowledge of the bus industry could cause ‘‘mistakes’’
which ‘‘could cost us our company and you your jobs.’’
The letter also informs the workers that this new package
represents Gilman’s ‘‘effort’’ to address their needs and con-
cerns, and would help them achieve their ‘‘objectives.’’ In
this context, the announcement thus ties Respondent’s objec-
tive of remaining union-free with the increases given. Fur-
ther, her reference to having ‘‘heard’’ the employees is a di-
rect reference to their attempt to unionize. Even if it is con-
sidered a reference to having heard their need for hospitaliza-
tion benefits, such information was obtained through its ille-
477ACME BUS CORP.
gal solicitation of employee grievances, as found herein.
Den-Tal-EZ, Inc., 303 NLRB 968, 970 (1991).
Under all these circumstances, I find that the wage and
benefits increases had as their effect the influence of employ-
ees to abandon their support for the Union. Although the
Union had won the election, the Employer’s objections were
pending, and Gilman’s letter urged its employees not to sup-
port it. I accordingly find and conclude that the implementa-
tion of the wage and benefits package violated Section
8(a)(1) of the Act.
b. Solicitation of grievances
The evidence is clear that Respondent solicited its employ-
ees grievances and implied that it would remedy them.
As set forth above, Portnoy told the dispatchers to learn
what benefits the drivers wanted and said that it would see
what it could do about them. At a meeting thereafter in May,
Baumann asked the drivers what they wanted. Most fre-
quently mentioned was hospitalization and Baumann said he
would try to do something about it. At the same meeting,
Portnoy said Respondent would try to resolve ‘‘all these
problems.’’ Thereafter, a package of benefits was distributed
to the dispatchers, which included a hospitalization plan
sought by the employees. Portnoy asked them to show it to
the drivers, and that if each could get one driver to change
his vote to the Company, the Respondent would be ‘‘ahead.’’
In Valley Community Services, 314 NLRB 903, 904
(1994), the Board stated:
When an employer, who has not previously had a prac-
tice of soliciting employee grievances or complaints,
suddenly embarks on such a course during an organiza-
tional campaign, the Board may find that the employer
is implicitly promising to correct those inequities dis-
covered as a result of the inquiries, thereby leading em-
ployees to believe that the combined program of in-
quiry and correction will make collective action unnec-
essary. [Footnote omitted.]
In that case, following the onset of a union organizational
campaign, the employer asked its employees what problems
they were having, including problems with health insurance.
The employer promised to look into the complaints. At sub-
sequent meetings, the employer made progress reports on the
topics previously discussed, and asked if their problems had
been resolved. The Board, in finding that respondent unlaw-
fully solicited grievances and promised benefits to its em-
ployees to undermine their support for the union, found that
the employer had no previous practice of holding such meet-
ings and soliciting grievances.
Here, Respondent had its dispatchers ask drivers what they
wanted, and had them bring the drivers to a meeting for the
specific purpose of learning what they wanted. Respondent
solicited their grievances and promised to remedy them, sug-
gesting that if the drivers were convinced that these were sig-
nificant benefits, the Respondent would be successful in the
upcoming election.
I accordingly find and conclude that Respondent solicited
its employees grievances and impliedly promised to remedy
them, as alleged in the complaint.
c. Other instances of interference with employees’
Section 7 rights
I find, as set forth above, that the conduct of officials of
Respondent, and its agents Portnoy and Walsh, directed to
employees, violated the Act as set forth below. However, I
cannot find that their actions violated the Act with respect
to statements to Cafaro and Campbell since I have found that
they were supervisors within the meaning of the Act.
Inasmuch as I have found Campbell and Cafaro to be su-
pervisors, I find that their statements to employees, set forth
above, and summarized below, are attributable to Respond-
ent. Under Section 2(13) of the Act, an employer is bound
by the acts and statements of its supervisors whether specifi-
cally authorized or not.’’ Ideal Elevator Corp., 295 NLRB
347 fn. 2 (1989).
Even assuming that Cafaro and Campbell were not super-
visors, they were clearly agents of Respondent within the
meaning of Section 2(13) of the Act. As to all the instances
described below, they acted pursuant to specific instructions
by Respondent’s officials. They were asked to interrogate
employees about their union activities, obtain other union-re-
lated information, and report back to management on what
they learned. Thus, Cafaro and Campbell were agents with
actual, specific authority and direction to engage in the con-
duct described. Respondent is therefore directly responsible
for their conduct. Albertson’s Inc., 307 NLRB 787 (1992);
Jacobo Marti & Sons, 264 NLRB 30, 33 (1982).
Portnoy’s statement to employees at a meeting in May,
that if the Union got in, Respondent would close constitutes
an unlawful threat of plant closure. American Wire Products,
313 NLRB 989, 993 (1994).
Gilman’s questioning of Van Syckle in about July as to
why she wanted a union, and her questions to Anderson and
Edmond as to whether they were involved in the Union, and
whether they would cross a picket line if the Union struck
constitutes unlawful interrogation.
Gilman’s question to Van Syckle in July as to how she ob-
tained phone numbers of employees, and her acknowledg-
ment to Van Syckle in that month that she believed that Van
Syckle had called in the Union to organize the employees
constitutes unlawful interrogation and the creation of the im-
pression of surveillance.
Gilman’s statement to Edmond that she heard that he was
‘‘instigating’’ employees to sign for the Union, and that she
heard his name mentioned frequently concerning the Union
constitutes the creation of the impression of surveillance.
The test for determining whether an employer has created
an impression of surveillance is whether the employee would
reasonably assume from the statement that his union activi-
ties had been placed under surveillance. The idea in such
violation is that employees should be free to participate in
union organizing campaigns without the fear that members of
management are watching them. An employer creates an im-
pression of surveillance by indicating that it is closely mon-
itoring the degree of an employee’s union involvement.
Flexsteel Industries, 311 NLRB 257 (1993).
Gilman’s comments to Anderson and Edmond, when com-
bined with her prior statement to Cafaro that they were seen
in their bus having a union meeting, and that she (Gilman)
believed that they were the ‘‘two big union people’’ strongly
supports a finding that she created the impression of surveil-
lance in her remarks to them.
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Campbell’s inquiry of his friends in June as to matters
concerning the Union is unlawful interrogation. The fact that
Campbell may have asked his friends does not make the in-
terrogations lawful. Flexsteel, id. at 258 fn. 5. (1993).
Campbell’s questioning of employees in June or July, ask-
ing them questions regarding the progress of the Union’s
campaign, the employees’ thoughts on the Union, whether
they supported the Union, where union meetings would be
held, and obtaining information and flyers from employees,
and his reporting to Lynch of the names of employees who
were in favor of the Union, and information concerning the
locations of union meetings, and giving flyers to Lynch, con-
stitute unlawful interrogations of employees. Midland Trans-
portation Co., 304 NLRB 4, 6–7 (1991); Vemco, Inc., 304
NLRB 911, 922 (1991).
Campbell’s direction to employees that they wear ‘‘vote
no’’ buttons constitutes unlawful interrogation. Campbell told
the drivers to take a button. The refusals of some drivers to
take a button does not negate the violation. The drivers did
not ask for the button, and they were not merely made avail-
able to the drivers to take if they wished. Rather, they were
asked by a supervisor to take a button. These actions con-
stituted interrogation since ‘‘by agreeing or refusing to wear
the button the employee is forced into an open declaration
either for or against the Union.’’ Kurz-Kasch, 239 NLRB
1044 (1978).
Campbell’s ascertaining the location of a July union meet-
ing at Walsh’s request, attempting to learn the legal capacity
of the meeting place, and reporting this information to
Walsh. This was clearly an attempt to obtain information in
order to disrupt the meeting, as alleged in the complaint, and
constitutes unlawful interference with employees’ Section 7
rights in violation of Section 8(a)(1) of the Act.
Campbell’s request to employee Nixon in July that he tape
record a union meeting and give the tape to Campbell con-
stitutes an unlawful request that employees conduct surveil-
lance of a union meeting. Douglas & Lomason Co., 304
NLRB 322, 327 (1991); Fontaine Body & Hoist Co., 302
NLRB 863, 866 (1991).
Cafaro’s questioning of employees on July 28 as to wheth-
er they were voting for the Union, and her promise of bene-
fits to the drivers, in the form of an increased benefit pack-
age, if they voted against the Union constitutes interference
with their Section 7 rights in violation of Section 8(a)(1) of
the Act.
I find no violation in the allegation concerning Campbell’s
determining that union agents were not on Respondent’s
property, and therefore not removing them. I further find no
violation in Campbell’s riding in Respondent’s bus with vot-
ers on the way to the election. Although he was instructed
to campaign against the Union during the trip, he did not do
so, and he stayed only a short time at the polling place.
2. The alleged violations of Section 8(a)(3) of the Act
a. The discharges
I find that the General Counsel has made a prima facie
showing, in each case, that Respondent was motivated by
antiunion considerations in discharging Anderson, Barker,
Edmond, Johnson, Pozo, and Van Syckle.
Thus, each engaged in union activities, which came to the
knowledge of Respondent.
Regarding Anderson and Edmond, Cafaro gave uncon-
tradicted testimony that Gilman told her that Anderson and
Edmond were conducting a union meeting in their bus, and
that she (Gilman) believed that they were the ‘‘two big union
people.’’ In addition, Anderson and Edmond gave uncontra-
dicted testimony that Gilman told them that she heard that
Edmond instigated employees to sign for the Union. They
both told her that they would cross a picket line if the Union
struck.
Barker admitted to Respondent that she distributed union
leaflets to parents on her route. Campbell gave uncontra-
dicted testimony that Lynch told him that he saw Barker and
others exchanging union literature in a bus in the terminal.
Johnson signed a union card and credibly testified that he
wore a union button at all times. His wearing a button was
corroborated by Campbell, who spoke to him about the
Union. I do not credit Respondent’s witnesses who stated
that they did not see the button.
Pozo distributed union cards to 40 to 50 employees at the
terminal. Campbell gave uncontradicted testimony that Lynch
told him to watch Pozo because of his destruction of the
‘‘vote no’’ button, and to write him up at every opportunity.
Van Syckle distributed union documents to employees and
made numerous phone calls to workers. She gave uncontra-
dicted testimony that she told Gilman that the workers need-
ed a union, and Cafaro gave uncontradicted testimony that
Gilman told her she saw Van Syckle distributing union leaf-
lets, and she had to find some way to get rid of her, and
‘‘we can’t have this.’’ Gilman also accused her of obtaining
employee phone numbers from company records, and of
being the person who called the Union in.
Respondent’s union animus is well demonstrated in the
fact that on the Union’s advent, a well-coordinated campaign
was undertaken to thwart the Union’s efforts. I have found,
above, that Respondent, committed numerous violations of
the Act by its high level officials, supervisors, and agents,
including the interrogation of employees concerning their
union activities, directing its agents to spy on union meetings
and attempting to disrupt them, directing its agents to report
on the union activities of its employees, implementing a
wage and benefits package to induce employees to abandon
the Union, soliciting grievances from its employees, threaten-
ing to close its facility, creating the impression of surveil-
lance of the union activities of its employees, and promising
benefits to employees if they voted against the Union.
I accordingly find that the General Counsel has made a
prima facie showing that the union activities of Anderson,
Barker, Edmond, Johnson, Pozo, and Van Syckle were moti-
vating factors in Respondent’s decision to discharge them.
Wright Line, 251 NLRB 1083 (1980).
Having found a prima facie case of unlawful motivation
in the discharges, the burden shifts to Respondent to prove
that it would have discharged them even in the absence of
their union activities. Wright Line, supra.
The General Counsel argues that the discharges were pre-
textual, the events precipitating them ‘‘seized upon’’ by Re-
spondent in order to effectuate its plan to terminate those
employees who expressed interest in the Union. The General
Counsel’s other theory, that the discharges were made to in-
still fear in the unit prior to a rerun election is not supported
by the evidence, since all the discharges, except for Barker,
479ACME BUS CORP.
occurred before October 8, the date a rerun election was di-
rected.
Respondent argues that, notwithstanding the union cam-
paign, it had a right to operate its business, terminating those
employees who it believed had violated its policies. It denies
that the discharges were motivated by union considerations.
(1) Joseph Anderson and Tommy Edmond
As set forth above, Anderson and Edmond were dis-
charged for failing to call in or appear for work for 2 con-
secutive days. Both were absent without calling.
The General Counsel argues that either there was no estab-
lished rule requiring discharge after 2 days without calling or
appearing, or the rule was not enforced.
Cafaro credibly testified that the only rule she was aware
of, which was in effect, was a 3-day rule, which she did not
enforce routinely. That written rule was in an employee man-
ual which was not reissued, in modified form, until after the
Union’s advent. Supervisor Eileen Meyer testified that she
discharged employee Jackie Foster following his being ab-
sent for 3 or 4 days.
Cafaro and Campbell, Respondent’s supervisors, gave con-
sistent, credible testimony that there were occasions that
drivers were not present and did not call for 3 or 4 days, but
nevertheless were assigned to their regular run with no dis-
cipline given. No documentary evidence was offered as to
such variations in the policy, and none could be offered if
the driver was not written up for those alleged infractions.
Certainly, termination reports were received which showed
that employees were discharged for two instances of no
call/no show, and three of the eight reports occurred prior to
the Union’s campaign. However, doubt was cast on the rigid
enforcement of the rule, as testified by Respondent’s offi-
cials. Thus, the circumstances surrounding Schramm’s termi-
nation are suspicious. She was terminated on March 9, 1993,
for being no call/no show on March 8, 1993, and ‘‘March
8, 1994.’’ Nevertheless, she and a supervisor signed a dis-
ciplinary notice stating that she was no call/no show on
March 29 through April 1, 1993. If she was terminated on
March 9, how could she have been no call/no show 3 weeks
later, especially in view of McCabe Kours’ testimony that
she did not work between March 9 and 29.
Further, Clarke received a disciplinary notice for being no
call/no show for November 16 and 17, 1992, yet quit on
March 11, 1993. It thus appears that she was not terminated
on November 17, but permitted to remain at work for nearly
4 months until she quit. In addition, as noted above,
Widman, too, may have been permitted to work notwith-
standing two no call/no shows.
Accordingly, the application of the rule against Anderson
and Edmond appears to have been disparately enforced, espe-
cially where it appears that Clarke was not discharged for a
similar offense, and Schramm may have also continued in
her employ. Stoody Co., 312 NLRB 1175, 1182 (1983);
Sealectro Corp., 280 NLRB 151, 160 fn. 22 (1986). Re-
spondent’s alleged policy of automatic discharge for two no
call/no shows was not supported by the evidence. Hyatt Re-
gency Memphis, 296 NLRB 259, 262-263 (1989).
Thus, I find that Respondent has not met its burden of
proving that it would have discharged Anderson and Ed-
mond, long-term employees, entrusted by Respondent with
the responsibility of training new drivers, and awardees of
certificates for outstanding performance 1 year before their
discharges, in the absence of their union activities.
(2) Frances Barker
Respondent first argues that Barker, in acting alone, was
not engaged in concerted activity. The Board has held that,
even though an employee may be acting alone, a worker at-
tempting to form, join, or assist a union is nevertheless pro-
tected by Section 7 of the Act, and an employee’s action in
publicizing her labor dispute is within the scope of activities
protected by that Section. Carpenters Local 925, 279 NLRB
1051, 1055 fn. 40 (1986); Cincinnati Suburban Press, 289
NLRB 966, 967 (1988).
Respondent’s rules may be ‘‘facially invalid and unlawful
to the extent that they prohibit inadvertent or unknowingly
false statements which are protected when uttered in the con-
text of concerted activity.’’ Bell Halter, Inc., 276 NLRB
1208, 1220 fn. 12 (1985). However, the rules were not al-
leged as unlawful.
[E]mployees may communicate with third parties in cir-
cumstances where the communication is related to an
ongoing labor dispute where the communication is not
so disloyal, reckless, or maliciously untrue as to lose
the Act’s protection. [Cincinnati, supra at 967.]
Respondent’s rule 3 prohibits making ‘‘disparaging or de-
rogatory’’ statements concerning the Company, violation of
which will result in disciplinary action up to and including
discharge.
I find that Barker admitted, as set forth in her pretrial affi-
davit, that she falsely told a parent, in answer to a question,
that Respondent provides no vacations. I cannot find, in view
of the contradictions between the testimony of Schneider and
Lynch, that Barker admitted telling a parent that the Com-
pany ‘‘sucked’’ and had no benefits. I do find, however,
based on the testimony of Lynch, set forth above, which was
impliedly supported by Barker, that Barker admitted to the
two men that she told the parent that Respondent did not
provide insurance, which was also false since health insur-
ance benefits were available.
The result of these falsehoods to parent Andreadis was that
Andreadis sent a letter to the school district which expressed
concern about the high turnover of drivers, and in which she
sought to keep a regular driver employed on her route.
Andreadis, who was told that Barker was the regular driver
for her child, was clearly prompted to write the letter, in
part, by Barker’s false statements to her concerning the lack
of benefits provided by Respondent. The implication being,
of course, that Respondent’s poor benefits would cause Bark-
er’s resignation, a consequence which Andreadis sought to
avoid.
The types of customers to whom these false statements
were made must also be taken into consideration. These were
not purchasers of products who could take their business
elsewhere if they believed that Respondent was not treating
its workers fairly. Rather, these were parents of preschool
age Down Syndrome children, who entrusted the safety and
welfare of their children to the drivers. The parents could
thus be expected to be extremely concerned that the employ-
ees be treated properly and therefore satisfied with their
working conditions. Unlike commercial purchasers, the par-
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I am aware that the school district to which Andreadis sent the
letter had nothing to do with the contract administered by Respond-
ent. However, this strengthens rather than detracts from the finding
I make, by showing the willingness of an unrelated authority to be-
come involved in this issue.
ents were committed to the bus company chosen by the
school district.
Under these circumstances, I believe that Barker’s com-
ments that Respondent provided no vacations and no insur-
ance were knowingly false, and by their dissemination to
these customers of Respondent were designed to do more
than merely obtain support among those customers for the
Union’s cause. They were meant to cause, and had the effect
of causing, customers to lose faith in Respondent’s business
since it allegedly failed to provide important benefits to its
employees, and at the same time create a belief that the chil-
dren would not be properly taken care of by dissatisfied em-
ployees. Barker’s comments therefore sought to impair Re-
spondent’s relations with its customers. Cf. GHR Energy
Corp., 284 NLRB 1011, 1028 (1989), where the Board, find-
ing that an employee’s discharge was unlawful, noted that
his statements were not knowingly false, and did not seek to
impair the employer’s relations with its customers.
Each parent of the hundreds of school children Respondent
transports represents a powerful force if false complaints by
workers are complained about to government authorities
which can affect its contracts. The effect of these statements
on Respondent’s business is clearly seen in copies of the
school district’s letter being sent to the County Executive of
Nassau County.12
Under these circumstances, I find that Respondent properly
believed that Barker’s remarks were disparaging and deroga-
tory within the meaning of its rule. I accordingly find and
conclude that Respondent has met its burden of showing that
it would have discharged Barker even in the absence of her
union activities. Troxel Co., 301 NLRB 270, 282 (1991);
Bell Halter, supra at 1223.
(3) Alfred Johnson
It is undisputed that Meyer made a charter assignment to
Johnson for September 8, and that Johnson accepted it. John-
son conceded on cross-examination that he was told to report
the next morning, and then only in a second conversation,
denied by Meyer, did he request a leave of absence.
The question is whether the leave of absence was granted,
thereby obviating the need for him to report for the charter.
I credit the testimony of Meyer and Martines who testified
consistently that the only matter discussed with Johnson was
that a leave of absence would be granted on his completing
the appropriate papers which would be presented to him
when he appeared for the next morning’s charter. In fact,
Johnson conceded that he was required to complete a leave
of absence form, which he did not do.
It appears clear that Meyer acted on the belief that John-
son would be at the terminal to operate the charter. She ar-
rived there in time to give him the leave of absence papers,
but he did not appear. Lynch served to corroborate her pres-
ence through Johnson’s testimony that Lynch told him that
Meyer phoned him (Johnson) at 6 a.m. when he did not ap-
pear for the charter. Clearly, if Meyer had believed that
Johnson was not assigned to the charter, she would not have
called to learn where he was. I do not credit Johnson’s denial
that he received the call.
The General Counsel’s argument that Johnson was im-
properly discharged because a no call/no show form was
issued for the second day of his absence, September 9, al-
though he was not due to report that day, is irrelevant be-
cause he was discharged for ‘‘job abandonment’’—not ap-
pearing for his agreed-on scheduled charter on September 8.
In finding that Respondent has met its burden of proving
that it would have discharged Johnson even in the absence
of his union activities, I note that his union activities, which
were minimal, did not come to the knowledge of high offi-
cials of Respondent, and he was not spoken to by them about
such activities.
(4) Pedro Pozo
As set forth above, Pozo was discharged for falsifying a
DOT form, by not stating thereon that the bus’ brakes were
defective. Baumann testified that Pozo sought to place the
blame on the mechanic. The General Counsel argues that this
is a minor offense.
Respondent’s uncontradicted evidence supports a finding
that the DOT forms are of critical importance in keeping
track of a vehicle’s maintenance. The incident which precip-
itated Baumann’s investigation into the defect records was
not manufactured. It came to Baumann’s attention through
criticism of a driver’s failure to discharge and pick up pas-
sengers. When he looked into the matter, Baumann learned
that Pozo was the driver on that occasion, and that the reason
for the aborted run was that the bus’ brakes were not operat-
ing properly.
Upon further investigation, Baumann found that he had
improperly noted on the DOT form that the bus had no de-
fects. Such an improper notation could result in penalties to
Respondent.
I accordingly find and conclude that Respondent has met
its burden of proving that it would have discharged Pozo in
the absence of his union activities. There was no evidence
of disparate treatment. I further note that Pozo’s brother, Or-
lando, engaged in the same union activities and was quite
outspoken at a meeting with Employer officials, and was not
the subject of discriminatory treatment.
(5) Neri Van Syckle
As set forth above, Van Syckle was discharged for having
two preventable accidents. She conceded that such conduct
is grounds for discharge; however, she disputes that the acci-
dent of January 1992 was preventable. Her uncontradicted
testimony that Safety Director Erickson told her that ‘‘every-
thing is fine and clear, you are okay’’ is credited. The fact
that she was permitted to continue to drive, and not sus-
pended, is consistent with Respondent’s contemporaneous
memos which lifted the suspension pending receipt of the po-
lice report, and not because she was cleared of fault in the
crash. Indeed, on receipt of the report, a memo correctly stat-
ed that the accident was deemed to be her fault, but the sus-
pension would not be enforced due to the length of time in-
volved, 2 months, in obtaining the report.
Respondent’s evidence that six other drivers were termi-
nated for having two preventable accidents, five such termi-
nations occurring prior to the Union’s advent, and in the ab-
481ACME BUS CORP.
sence of any evidence of disparate treatment, I find that Re-
spondent has met its burden of proof that it would have dis-
charged Van Syckle even in the absence of her union activi-
ties. Wright Line, supra.
Even if ‘‘it is fair to assume that the Respondent enter-
tained a desire to get rid of [Van Syckle], whose union ac-
tivities it resented, and was pleased to have an opportunity
for doing so . . . that alone is not enough to establish that
the discharge was in violation of Section 8(a)(3).’’ Opelika
Welding, 303 NLRB 1051 (1991).
b. The alleged introduction of a harsher
disciplinary system
The complaint alleges that in July, Respondent introduced
a harsher, more stringent written disciplinary system to be
used to retaliate against employees who are union supporters,
including to discharge union supporters.
As set forth above, Lynch told Campbell to write up cer-
tain employees who were identified as being union support-
ers, and after being written up they would be fired. Campbell
for the most part ignored Lynch’s instructions, and no dis-
ciplinary notices concerning those employees were offered in
evidence. He could not identify any worker discharged be-
cause of this alleged increase in discipline. Oulette also told
Campbell to start documenting employee wrongdoing in
order to fire workers, and replace them with new hires. But
this harmful testimony was undercut by Campbell’s conces-
sion that such hiring would be made if the workers struck.
Campbell further undercut the alleged unlawful motivation
for the increased discipline by stating that the emphasis on
increased documentation was made necessary when absentee-
ism had become rampant, and Respondent was fined for
drivers’ latenesses. Although Campbell said that documenta-
tion of employee wrongdoing had been made before the
Union’s advent, it increased after the campaign began, but
once more stated that it was possible than company rules
were being violated more often following the start of the
union campaign.
I cannot find, based on the above, that the General Coun-
sel has made a prima facie showing that Section 8(a)(3) of
the Act has been violated, as alleged. At most, there were
vague suggestions that employees be written up for their
union activities, which were not followed up. Explanations
were given by Campbell which minimized these suggestions.
Indeed, there was no showing that, as alleged in the com-
plaint, that Respondent introduced a harsher, more stringent
disciplinary system. I, accordingly, find no violation of the
Act in this respect.
CONCLUSIONS OF LAW
1. Respondent, Acme Bus Corp., Brookset Bus Corp.,
Baumann & Sons Buses, Inc., and Alert Coach Lines, Inc.,
a single employer, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 868, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Joseph Anderson and Tommy Edmond,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. By implementing a wage and benefits package, in order
to induce employees to abandon the Union, Respondent vio-
lated Section 8(a)(1) of the Act.
5. By soliciting grievances from its employees and imply-
ing that it would remedy said grievances, Respondent vio-
lated Section 8(a)(1) of the Act.
6. By threatening its employees that if the Union orga-
nized its employees Respondent would close, Respondent
violated Section 8(a)(1) of the Act.
7. By interrogating its employees concerning: why they
wanted a Union; whether they were involved in the Union;
whether they would cross a picket line if the Union struck;
how they obtained phone numbers of employees; the Union
generally; the progress of the Union’s campaign; the employ-
ees’ thoughts about the Union; whether they supported the
Union; the locations of union meetings; whether they were
voting for the Union; and by directing its employees to wear
‘‘vote no’’ buttons, Respondent violated Section 8(a)(1) of
the Act.
8. By interrogating an employee and creating the impres-
sion of surveillance by telling an employee that Respondent
believed that the employee had called in the Union to orga-
nize the employees, Respondent violated Section 8(a)(1) of
the Act.
9. By creating the impression of surveillance by telling an
employee that Respondent heard that he was ‘‘instigating’’
employees to sign for the Union, and that it had heard his
name mentioned frequently concerning the Union, Respond-
ent violated Section 8(a)(1) of the Act.
10. By ascertaining the location of a union meeting, and
by attempting to learn the legal capacity of the meeting
place, Respondent violated Section 8(a)(1) of the Act.
11. By requesting that an employee tape record a union
meeting, Respondent violated Section 8(a)(1) of the Act.
12. By promising benefits to employees if they voted
against the Union, Respondent violated Section 8(a)(1) of the
Act.
13. Theresa Cafaro and Garth Anthony Campbell are su-
pervisors within the meaning of Section 2(11) of the Act.
14. Respondent has not committed any violations of the
Act not found herein.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall recommend that Respondent offer full and imme-
diate reinstatement to Joseph Anderson and to Tommy Ed-
mond to their former jobs or. if those jobs no longer exist,
to substantially equivalent positions without prejudice to their
seniority and any other rights and privileges enjoyed, and to
make each of them whole for any loss of earnings and bene-
fits suffered because of their unlawful discharges, less any
interim earnings, to be computed in the manner established
by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950,
with interest as computed in New Horizons for the Retarded,
233 NLRB 1173 (1987).
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Acme Bus Corp., Brookset Bus Corp.,
Baumann & Sons Buses, Inc., and Alert Coach Lines, Inc.,
a Single Employer, Ronkonkoma, New York, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees in order to discourage them from joining or support-
ing Local 868, International Brotherhood of Teamsters,
AFL–CIO.
(b) Implementing a wage and benefits package in order to
induce employees to abandon the Union.
(c) Soliciting grievances from its employees and implying
that it would remedy the grievances.
(d) Threatening its employees that if the Union organized
its employees, Respondent would close.
(e) Interrogating its employees concerning: why they want-
ed a Union; whether they were involved in the Union;
whether they would cross a picket line if the Union struck;
how they obtained phone numbers of employees; the Union
generally; the progress of the Union’s campaign; the employ-
ees’ thoughts about the Union; whether they supported the
Union; the locations of union meetings; whether they were
voting for the Union, and by directing its employees to wear
‘‘vote no’’ buttons.
(f) Interrogating employees and creating the impression of
surveillance by telling employees that Respondent believed
that employees had called in the Union to organize the em-
ployees.
(g) Creating the impression of surveillance by telling em-
ployees that Respondent heard that they were ‘‘instigating’’
employees to sign for the Union, and that it had heard their
names mentioned frequently concerning the Union.
(h) Ascertaining the location of union meetings, and at-
tempting to learn the legal capacity of the union’s meeting
place.
(i) Requesting that an employee tape record a union meet-
ing.
(j) Promising benefits to employees if they voted against
the Union.
(k) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Joseph Anderson and Tommy Edmond imme-
diate and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make each of them
whole, with interest, for any loss of earnings and benefits
each of them may have suffered as a result of its unlawful
discharges of them on about September 9 and 17, 1993, re-
spectively, as set forth in the remedy section of this decision.
(b) Remove from its files any memoranda, records, or
other references to the unlawful discharges of Joseph Ander-
son and Tommy Edmond, as set forth above, and notify each
of them, in writing, that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this recommended
Order.
(d) Post at its Ronkonkoma and Jericho/Westbury facilities
copies of the attached notice marked ‘‘Appendix.’’14 Copies
of the notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate against
our employees in order to discourage them from joining or
supporting Local 868, International Brotherhood of Team-
sters, AFL–CIO.
WE WILL NOT implement wage and benefits packages in
order to induce employees to abandon the Union.
WE WILL NOT solicit grievances from our employees and
imply that we will remedy those grievances.
WE WILL NOT threaten our employees that if the Union or-
ganized our employees, we would close.
WE WILL NOT interrogate our employees concerning: why
they wanted a Union; whether they were involved in the
Union; whether they would cross a picket line if the Union
struck; how they obtained phone numbers of employees; the
Union generally; the progress of the Union’s campaign; the
employees’ thoughts about the Union; whether they sup-
ported the Union; the locations of union meetings; whether
they were voting for the Union, or by directing our employ-
ees to wear ‘‘vote no’’ buttons.
WE WILL NOT interrogate our employees and create the
impression of surveillance by telling our employees that we
483ACME BUS CORP.
believed that our employees had called in the Union to orga-
nize them.
WE WILL NOT create the impression of surveillance by tell-
ing our employees that we heard that they were ‘‘instigat-
ing’’ employees to sign for the Union, and that we had heard
their names mentioned frequently concerning the Union.
WE WILL NOT ascertain the location of union meetings,
and attempt to learn the legal capacity of the union’s meeting
places.
WE WILL NOT request that employees tape record union
meetings.
WE WILL NOT promise benefits to employees if they voted
against the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer to Joseph Anderson and Tommy Edmond
immediate and full reinstatement to their former positions or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make each of them
whole, with interest, for any loss of earnings and benefits
each of them may have suffered as a result of our unlawful
discharges of them.
WE WILL remove from our files any memoranda, records,
or other references to the unlawful discharges of Joseph An-
derson and Tommy Edmond, as set forth above, and notify
each of them, in writing, that this has been done and that the
discharges will not be used against them in any way.
ACME BUS CORP., BROOKSET BUS CORP.,
BAUMANN & SONS BUSES, INC., ALERT
COACH LINES, INC., A SINGLE EMPLOYER