ATC of Nevada

National Labor Relations Board - Board Decisions

Sep 29, 2006

348 N.L.R.B. 796 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 43
796
ATC, LLC d/b/a ATC of Nevada and Amalgamated
Transit Union, Local 1637, AFL–CIO, CLC.
Cases 28–CA–20076 and 28–CA–20197
September 29, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On February 27, 2006, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Charging
Party filed cross-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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the Order as modified and
set forth in full below.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No party has excepted to the judge’s finding that the Respondent did
not violate Sec. 8(a)(5) of the Act by implementing a memorandum of
understanding that was agreed to by the Union and the Respondent, but
was subsequently rejected by a vote of the Union’s members. In addi-
tion, the General Counsel alleged in the complaint that the Respondent
violated Sec. 8(a)(5) by processing a grievance filed by a union that
was not the exclusive collective-bargaining representative of the unit
employees. The General Counsel never pursued this allegation at the
hearing or in subsequent submissions, and thus the judge did not ad-
dress it, and no party has excepted to the judge’s failure to address the
complaint allegation.
Member Schaumber notes that the General Counsel alleged that the
Respondent violated Sec. 8(a)(5) within the meaning of Sec. 8(d) by (1)
assigning bargaining unit work to nonbargaining unit employees, (2)
requiring operators to call in for overtime assignments on their days off,
and (3) failing to follow the bidding process. Under the General Coun-
sel’s exclusive theory regarding these allegations, he was required in
each instance to identify a contract provision that addressed the issue,
and then show how Respondent’s conduct modified the contract provi-
sion. Bath Iron Works Corp., 345 NLRB No. 33 slip op. at 3–5 (2005).
As the judge noted for each allegation, the General Counsel failed to
identify a provision in the contract that covered the subject modified by
Respondent’s conduct, and thus the allegations were properly dis-
missed. To the extent the Charging Party argued alternative theories
regarding these allegations, they were not properly before the judge and
Member Schaumber does not rely on them in affirming the judge and
dismissing the allegations.
The judge inadvertently stated that the Union’s request for informa-
tion regarding forced overtime was dated February 28, 2005. The
information request was actually dated February 8, 2005.
We find, in agreement with the judge, that the Respon-
dent violated Section 8(a)(1) of the Act when it directed
four employee-union officers, under a threat of suspen-
sion, to complete a written questionnaire seeking infor-
mation about a potential work stoppage. Specifically, the
Respondent demanded answers to the following ques-
tions:
(i) during the past 30 days, what communications
have you had with ATC employees concerning a
work slow down/work stoppage;
(ii) what communications have you had with the
ATU officials from other ATU locals concerning the
use of employees from other properties at the ATC
location;
(iii) what communications have you had with
elected officials concerning a work stoppage/work
slowdown;
(iv) specifically, what communications during
the past 30 days have you had with Las Vegas
Mayor Oscar Goodman; and
(v) what communications during the past 30 days
have you had with any representatives of the Re-
gional Transit Commission concerning a work stop-
page/work slow down.
Applying the totality-of-circumstances test of Rossmore
House,2 the judge properly found that the Respondent’s
questioning of the employees concerning their union activi-
ties was coercive and in violation of Section 8(a)(1) of the
Act. See, e.g., Tony Silva Painting Co., 322 NLRB 989 fn.
1 (1997) (finding that employer unlawfully questioned em-
ployee about whether union was planning to call a strike).3

2 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
3 The Respondent argues that its questions did not trench upon pro-
tected activity because a work stoppage would assertedly have violated
the collective-bargaining agreement and, therefore, would have been
unprotected. Member Walsh notes, however, that the Board has held
that employees’ discussion of a work stoppage constitutes protected
activity, even if the work stoppage itself arguably would be unpro-
tected. See Sunrise Senior Living, Inc., 344 NLRB 1246, 1256 (2005),
enfd. mem. 179 LRRM (BNA) 2920 (4th Cir. 2006); KQED Inc., 238
NLRB 1, 2 (1978), enfd. mem. 605 F.2d 562 (9th Cir. 1979). This
precedent is “consistent with the purposes and policies of the Act since
allowing employers to discipline employees for discussing concerted
protests that might fall outside the protection of the Act would un-
doubtedly chill employees from discussing other forms of concerted
activity, including many forms that are protected by Section 7.” Sun-
rise Senior Living, supra at 1256.
Chairman Battista does not read Sunrise as standing for the principle
that an employer may not inquire into the prospects of a work stoppage
in breach of contract. He assumes arguendo that employee discussions
of a work stoppage are protected, even if the work stoppage itself
would arguably be unprotected. He acknowledges that the Board has
held that an employer cannot fire employees for having that discussion.
See Sunrise Senior Living. However, he believes that an employer may
ATC OF NEVADA 797
The Respondent argues that its questioning of the em-
ployees was not coercive inasmuch as the Respondent
was merely trying to determine whether a work stoppage
would occur. The Respondent’s questions, however,
were not tailored to this asserted purpose. Specifically,
questions 2 and 4 were not limited to the matter of work
stoppages. Question 2 asked the employees to disclose
communications they had with union officials from other
locals about the use of nonunit employees. Question 4
asked the employees to disclose communications they
had with the mayor of Las Vegas. Plainly, those ques-
tions went beyond what was necessary to determine
whether the employees were planning a work stoppage.
Further, as mentioned, the questioning was conducted
under an express threat of suspension. These circum-
stances easily distinguish the present case from other
cases in which the Board has found that an employer did
not violate the Act by seeking to confirm rumors of a
work stoppage. See, e.g., Yesterday’s Children, 321
NLRB 766 (1996), enfd. in part and vacated in part 115
F.3d 36 (1st Cir. 1997) (finding no unlawful interroga-
tion where, unaccompanied by threatening conduct, the
employer asked an employee if she had heard a strike
rumor).
Accordingly, we affirm the judge’s finding that the
Respondent violated Section 8(a)(1) when it coercively
questioned employees about their union activities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, ATC, LLC d/b/a ATC of Nevada, Las Ve-
gas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union and other protected activities.
(b) Threatening to discipline employees if they fail to
answer questions concerning their union and other pro-
tected activities.
(c) Failing and refusing to provide the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its representative duties.

have the right to inquire about the work stoppage in order to determine
whether it would be unprotected, thereby privileging the employer to
take appropriate disciplinary steps against the employees if they strike.
But, in the instant case, the Respondent’s questions went beyond that
purpose.
Member Schaumber finds it unnecessary to enter the debate on the
applicability of Sunrise to this case because the Respondent’s questions
were not limited to the work stoppage.
(d) Dealing with a labor organization that is neither the
certified nor the lawfully recognized collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All coach operators, coach operator instructors, me-
chanics, service workers, parts persons and specialized
parts person employed by the Respondent at its facili-
ties in the Las Vegas, Nevada metropolitan area; ex-
cluding all other employees, guards, and supervisors as
defined in the Act.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Union with the information it requested
in its letter of December 17, 2004, concerning employees
not in the bargaining unit performing bargaining unit
work.
(b) Provide the Union with the information it requested
in its letter of February 1, 2005, concerning employees in
the bargaining unit who have ceased performing work on
their bids.
(c) Provide the Union with the information it requested
in its letter of February 8, 2005, concerning forced over-
time work.
(d) Within 14 days after service by the Region, post at
its facilities in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 17, 2004.
(e) Within 21 days after service by Region 28, file with
the Regional Director a sworn certification of a responsi-

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD798
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED THAT the complaint is dis-
missed insofar as it alleges violations not specifically
found.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate employees con-
cerning their union or other protected activities.
WE WILL NOT threaten to discipline employees if they
fail to answer questions concerning their union or other
protected activities.
WE WILL NOT fail and refuse to provide the Amalga-
mated Transit Union, Local 1637, AFL–CIO, CLC (the
Union) with requested information that is relevant and
necessary to the performance of its representative duties.
WE WILL NOT deal with a labor organization that is nei-
ther the certified nor the lawfully recognized collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All coach operators, coach operator instructors, me-
chanics, service workers, parts persons and specialized
parts person employed by the us at our facilities in the
Las Vegas, Nevada metropolitan area; excluding all
other employees, guards, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide the Union with the information it re-
quested in its letter of December 17, 2004, concerning
employees not in the bargaining unit performing bargain-
ing unit work.
WE WILL provide the Union with the information it re-
quested in its letter of February 1, 2005, concerning em-
ployees in the bargaining unit who have ceased perform-
ing work on their bids.
WE WILL provide the Union with the information it re-
quested in its letter of February 8, 2005, concerning
forced overtime work.
ATC, LLC D/B/A ATC OF NEVADA
Nathan W. Albright, Esq., for the General Counsel.
James N. Foster Jr. and Daniel G. Fritz, Esqs. (McMahon,
Berger, Hanna, Linihan, Cody & McCarthy), of St. Louis,
Missouri, for the Respondent.
Richard D. Prochazka, Esq. (Richard D. Prochazka & Associ-
ates, APC), of San Diego, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on November 7–9, 2005. The
charge, first amended charge, and second amended charge in
Case 28–CA–20076 were filed by the Amalgamated Transit
Union, Local 1637, AFL–CIO, CLC ( the Union) on December
21, 2004,1 January 3 and February 23, respectively; the charge
and first amended charge in Case 28–CA–20197 were filed by
the Union on March 15 and April 27, respectively. The order
consolidating cases, consolidated complaint and notice of hear-
ing (the complaint) was issued April 29. The complaint al-
leges2 that ATC, LLC d/b/a ATC of Nevada (Respondent) vio-
lated Section 8(a)(1) by threatening employees with discipline
because they engaged in union activity and interrogating em-
ployees about their union activity when it required them to
complete a questionnaire. The complaint alleges that Respon-
dent violated Section 8(a)(2) by accepting, processing, and
adjusting a grievance filed by Transit Drivers Association of
Nevada (TDAN), a labor organization. Finally, the complaint
alleges that Respondent violated Section 8(a)(5) by failing to
provide the Union with requested information and assigning
unit work outside the unit, requiring unit employees “to call
into work on their days off for assignment to overtime work,”
requiring unit employees “to call the Tompkins Yard and Sim-
mons Yard on their days off for assignment to overtime work,”
eliminating certain bid routes, failing to follow the bidding
process, and failing “to continue in effect all the terms and
conditions of the Agreement by putting into effect a Memoran-
dum of Agreement,” all without first obtaining the consent of
the Union. Respondent filed a timely answer that, as modified
at the hearing, denied the substantive allegations of the com-
plaint but admitted the allegations concerning the filing and

1 All dates are in late 2004 and early 2005, unless otherwise indi-
cated.
2 The complaint originally had allegations arising from Case 28–
CA–20172. Those allegations and that charge were withdrawn from
the complaint.
ATC OF NEVADA 799
service of the charges, jurisdiction, the Union’s labor organiza-
tion and 9(a) status, agency, and appropriate unit.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent and the Union, I make the
following.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company, has been engaged
in the operation of a local passenger transit system for the Las
Vegas, Nevada metropolitan area. During the 12-month period
ending December 21, 2004, Respondent derived gross revenues
in excess of $250,000 and purchased and received at its Nevada
facilities goods valued in excess of $50,000 directly from
points outside the State of Nevada. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act. Although Respondent denied that TDAN is a
labor organization the evidence shows that it is an organization
in which employees participate and that exists for the purpose
of representing employees in grievance handling and collective
bargaining with employers. I conclude that TDAN is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent provides bus transportation services for the
County of Clark; that includes the Las Vegas metropolitan area.
It provides these services pursuant to a contract with the Re-
gional Transportation Commission. Its primary location,
known as the Simmons facility, covers about 40 acres and em-
ploys about 45 mechanics, 25 bus cleaners, over 500 coach
operators, and houses about 215 coaches and all the administra-
tive staff. The second location, known as the Tompkins facil-
ity, employs about 220–230 coach operators, about 18 mechan-
ics, and some other service workers. The RTC owns the busses,
develops the routes, and designs the schedules; Respondent
provides the staffing to fulfill the objectives set by the RTC.
Respondent and the Union were parties to a contract effec-
tive October 1, 1996, through December 31, 2001. This was
followed by a contract effective July 1, 2002, through June 30,
2006. Charles Kellogg is Respondent’s human resources man-
ager. J-nean-e Mills is a senior supervisor at the Tompkins
facility. Richard Valero works as a full-time coach operator for
Respondent and since June 2004 has been the Union’s presi-
dent/business agent. William Beaty is the Union’s vice presi-
dent. Thomas Vukdelich also works as a full-time coach opera-
tor for Respondent; he serves as an executive board member for
the Union.
B. Transfer of Bargaining Unit Work Allegation
For years Respondent has found it difficult to hire enough
coach operators to cover the routes specified by the RTC. It
has requested operators to volunteer to work overtime and then
required the operators to work overtime if volunteers were in-
sufficient to meet its needs. On Thanksgiving Day, 2004, 101
employees called off work; this was out of about a total of 350
shifts for that day. The next day about the same number of
employees called off. In Respondent’s view this was both un-
precedented and suspicious. It resulted in chaos as Respondent
tried to patch things together to deliver service to riders. After
Thanksgiving, Respondent began calling its facilities in other
states in preparation for having operators from those facilities
come to work at its Nevada locations.
On December 13, Respondent sent the Union the following
letter:
We continue to experience a shortage of drivers and/or
drivers willing to fill overtime runs. In addition, when we
require overtime, drivers are finding means of becoming
absent. As a result, we immediately need to cover these
runs. We have, with the Union’s knowledge and consent,
used Supervisors and other properly licensed and experi-
enced ATC employees, but remain reluctant to rely on this
as a solution. Accordingly, unless we receive an objection
from the Union within five days of this letter, it is our in-
tention to use other drivers from other locations to cover
during this shortage.
Time is of the essence.
At the time this letter was sent Respondent had made specific
arrangements for work to be done by nonunit workers, but these
nonunit workers had not yet started working.
The next day the Union responded:
We understand the unfortunate circumstances sur-
rounding the present state of affairs at ATC regarding op-
erator’s filling runs. We wholeheartedly intend to partici-
pate in achieving a mutual and equitable solution to this
problem.
However, in response to your letter dated December
13, 2004 in regards to your intention to use Supervisor’s
and other properly licensed and experienced ATC employ-
ees as a means to cover these runs is unacceptable and a
violation of our Collective Bargaining Agreement.
Accordingly, we intend to file a grievance objecting to
this solution as a means of facilitating the overtime need.
Starting in mid-December and continuing into January about
30 drivers from other facilities came to the Las Vegas area and
worked as coach operators. During that same period of time
supervisors also performed this unit work. They performed
work that otherwise would not have been performed by unit
employees because Respondent lacked sufficient drivers to
operate the vehicles, especially in light of the call offs and the
unit employees’ unwillingness to work additional overtime.
However, the out-of-state drivers were not paid pursuant to the
contract between Respondent and the Union; instead they were
paid pursuant to the collective-bargaining agreement that cov-
ered them at their home location.
On December 17, the Union filed a grievance over Respon-
dent’s:
[A]nnounced intent to commence utilizing other than bargain-
ing unit employees perform bargaining unit work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD800
In response to your telephonic communication that the Com-
pany intended to start using supervisors to perform bargaining
unit work and your letter of December 13, 2004 that the Com-
pany is intending to start using not only supervisors, but other
properly licensed and experienced ATC employees, please be
advised that Local 1637 has not and does not consent to any
such proposal.
The grievance asserted that Respondent violated the following
sections of the collective-bargaining agreement: section 1, par-
ticipative work agreement; section 2.2, entire agreement; sec-
tion 4, recognition; section 8.1, nondiscrimination; section 14,
promotions; section 21, union/management committee; section
25, workweek and overtime; section 26, probationary period;
section 28, part-time employees; section 30, wage progres-
sions/incentive plans; section 31, bidding process; and section
32, extra-board. None of those sections, however, expressly
forbid Respondent from using nonunit employees to perform
unit work.
Analysis
As indicated, the complaint alleges that Respondent assigned
unit work to nonunit employees without first obtaining the Un-
ion’s consent in violation of Section 8(d) and 8(a)(5). In order
to prevail on this allegation the General Counsel must show
that provisions contained in the existing collective-bargaining
agreement were changed by Respondent. Bath Iron Works
Corp., 345 NLRB 499, 501-503 (2005). But here, there is
nothing in that contract that forbids Respondent from assigning
unit work to nonunit employees.
The General Counsel’s legal argument on this point goes as
follows. He cites St. Vincent’s Hospital, 320 NLRB 42 (1995),
and cases cited therein for the propositions that an employer
may not change working conditions contained in a contract
without the union’s agreement and that consensual oral agree-
ments may become part of the contract. Without citing any
provisions of the collective-bargaining agreement the General
Counsel then states: “Under the principles set forth above, Re-
spondent, by its actions, changed the provisions contained in
the CBA.” The General Counsel then argues that this occurred
in late November even before Respondent’s December 13 let-
ter. The General Counsel concludes:
The Unit description, admitted by Respondent, specifically
excludes supervisors from the Unit. The unit description con-
tained in the CBA applies only to Unit employees hired and
working in Las Vegas. Kellogg conceded that the out-of-
town drivers were paid according to the collective-bargaining
agreement in their home local. On its face, Respondent’s ac-
tions were a change in the Recognition clause of the CBA.
3
Even though Kellogg told the Union Respondent had a staff-
ing problem, such an assertion is no defense to the implemen-
tation of a mandatory subject of bargaining without the con-

3 The logic of this point escapes me. If supervisors are excluded
from the unit and unit employees are only those working and hired in
Las Vegas, then it follows that the supervisors and the workers from
other facilities were not unit employees and therefore Respondent did
not breach the recognition clause by failing to recognize the Union as
the bargaining representative for these nonunit employees.
sent of the Union. St. Vincent Hospital, supra. Respondent
changed the provisions contained in the CBA and changed
Unit employees’ terms and conditions of employment without
the consent of the Union, and, accordingly, violated Section
8(d) and (5) of the Act.
It seems that the General Counsel may be arguing that Re-
spondent unlawfully failed to apply the contract’s terms to the
nonunit workers who performed the unit work. The difficulty
with this theory is that it is not the theory alleged in the com-
plaint. Just the opposite, the complaint alleges that the assign-
ment of unit work “to employees not in the Unit” was unlawful;
it did not allege that Respondent failed to treat those workers as
unit employees. There is a difference between employees per-
forming unit work and employees being members of the unit.
Nor was the matter fully litigated in that there is no evidence
concerning whether those workers were unit employees or not.
Under these circumstances I dismiss this allegation in the com-
plaint.
C. Failing to Continue in Effect the Terms and
Conditions of the Agreement Allegation
After previous discussions with the Union, on November 24
Kellogg presented Valero, Beaty, and Vukdelich with a pro-
posal for a memorandum of understanding covering several
matters. One provision dealt with fixed route mechanics and
described a procedure whereby they could be eligible for hourly
wage increases of up to 40 cents beyond those set forth in the
collective-bargaining agreement provided the mechanics met
certain safety standards. Another section described a procedure
whereby full-time fixed coach operators could receive up to 50-
cents-per-hour above the wage rates in the collective-
bargaining agreement provided the operator met certain safety
and attendance standards; this provision also allowed Respon-
dent to develop a program for probationary employees that
would allow them to transition more smoothly into becoming
full time fixed coach operators. Under another section service
workers who clean certain specified vehicles would receive 40-
cents-per-hour wage increase. Another section provided for a
$400 bonus for employees who referred an applicant who was
subsequently hired as a full-time fixed coach operator. The
collective-bargaining agreement provided for a $25-referral
bonus. Finally, in an effort to increase recruitment and reten-
tion of operators, operators in training would receive an hourly
wage increase of $1.50, in service operators 75 cents, and post-
probationary operators 25 cents; the hourly wage rate for other
operators would remain the same. The Union made several
suggestions, mostly to increase the amount of wage increases to
be given to the employees.
Respondent and the Union met again on December 8; this
time the Union’s entire seven person executive board was pre-
sent and other managers also attended with Kellogg. Kellogg
had incorporated some of the Union’s suggestions from the last
meeting and presented a revised proposal. As further modified
during the course of the meeting the proposed memorandum of
understanding provided as follows. The safety and attendance
wage increase was increased from 50 cents per hour to $1 and
the eligibility standards were loosened. The potential hourly
wage increases for mechanics increased from 40 cents to 70
ATC OF NEVADA 801
cents and for operators in training from $8.50 to $9 and service
workers from 40 cents to 50 cents. The Union’s executive
board expressed unanimous support for Respondent’s propos-
als. The parties reached tentative agreement and agreed that the
agreement should be finalized in writing, reviewed and signed.
But a day or two later Valero called Kellogg and told him the
Union could not just agree to the revised terms, that the mem-
bers had to vote on it and the vote could not be held until De-
cember 22. Kellogg told Valero that was not the deal.
Respondent had prepared advertisements with the higher
wage rates described in the December 8 meeting. On Decem-
ber 9 or 10 Kellogg asked Valero by telephone if he could
move forward with the advertising and Valero agreed. Around
this same time Valero advised Kellogg that he was going to put
up notices to employees of the meetings concerning the propos-
als and he asked Kellogg to be sure that the notices were not
taken down by supervisors. Later Valero and Kellogg had a
series of conversations concerning when the mechanics would
begin receiving their wage increases under the proposals and
they were unable to reach an agreement. Kellogg said that
Respondent was going to implement the proposals with or
without the Union’s signature.
The union members rejected the agreement on December 22
by a vote of 49 to 1. That night Valero faxed Kellogg the re-
sults. On December 23 Kellogg replied by letter asserting that,
[T]he December 8, 2004 agreement was reached with
unanimous support of the ATU Executive Board and the
ATU originally advised ATC that no election process of
its membership was necessary.
It is the position of ATC that the ATU has not bar-
gained in good faith. The agreement provides additional
compensation for bargaining unit employees and again this
agreement was fully reached in good faith. ATC intends
to implement the five (5) economic proposals dated De-
cember 8, 2004, as originally agreed upon. Implementa-
tion of these proposals is in the best interest of ATC’s val-
ued employees.
Except for the provision allowing the development of a pro-
gram for probationary employees that would allow them to
transition more smoothly into becoming full-time fixed coach
operators, Respondent implemented the December 8 conditions
and thereafter employees received the wage increases as pro-
vided. For example, Valero received the $1-per-hour-wage
increase and received bonus money for referring an applicant
who was then hired by Respondent.
Analysis
The foregoing facts are based on a composite of the credible
testimony of Kellogg, Valero, and Vukdelich. The General
Counsel and the Union contend that during the course of these
meetings the Union stated that the memorandum of understand-
ing would have to be approved by a vote of the membership
before it could become effective. For reasons explained below
I do not credit the testimony they rely on to support this asser-
tion.
Vukdelich testified that at the November 24 meeting “Mr.
Beaty was extremely vocal and extremely vehement, about the
fact that no matter what, it would have to be voted on, by the
membership.” Valero testified concerning this meeting but
made no reference to any comments by Beaty. Beaty did not
testify at the hearing. Kellogg denied that anything was said
about a membership vote. Vukdelich’s testimony on this mat-
ter appears exaggerated at the least and Valero did not corrobo-
rate Vukdelich on this critical point. I do not credit Vukde-
lich’s testimony on this point. Moving on to the December 8
meeting, according to Valero, the parties reached tentative
agreement but Beaty said that the agreement had to be put to a
vote by the membership; the statement attributed to Beaty,
however, does not appear in Valero’s pretrial affidavit. More-
over, Valero testified that at some point he told Kellogg “that
the Executive Board would vote on it, if there was—if we
did—reach a quorum. Okay. In other words, if there was such
gross apathy among the membership, then the Executive Board
would vote on it but there was not. There was not—there were
enough members to show up, to reach a quorum.” Valero’s
uncertainty on this point is palpable and his statement is not
consistent with the unequivocal statement he attributed to
Beaty. Valero also testified that during a break at the Decem-
ber 8 meeting Kellogg asked him whether they had an agree-
ment. Valero answered that they did not at that point; the Un-
ion had to “run it up the flagpole” and see how the proposal
weighs with the membership. Kellogg supposedly replied by
asking if they could get past this because Respondent needed to
get people hired etc. Valero said he would do his best to expe-
dite the matter. This is a third and somewhat different version
of what the Union supposedly told Kellogg about the need for a
membership vote. It strikes me as unlikely that Kellogg would
be preparing to place new advertisements in a day or two if the
Union had clearly told him that the agreement had to be voted
upon by the members and that the process would take several
weeks. I take into account the fact that Valero was employed
by Respondent at the time he testified. I also acknowledge that
Kellogg did not specifically deny the substance of the individ-
ual conversations with Valero. Nonetheless, based on the fore-
going and my observation of the demeanor of the witnesses, I
do not credit Valero’s testimony on this matter. Vukdelich
testified that at this meeting Beaty said, “again, very, very,
surely and loudly let everybody know that it still had to be put,
for a vote to the membership, and Mr. Beatty has been very
strong on that right from the beginning.” He testified that Kel-
logg replied that they hoped their proposal would work its way
through and pass and the Union agreed. But such a response
from Kellogg seems extremely unlikely under the circum-
stances. Remember Respondent was seeking to hire new op-
erators and get the proposals in place before the Christmas
holidays. This would not happen if the Union could not even
advise Respondent that it had an agreement until weeks later.
Vukdelich’s testimony again appears exaggerated. I take into
account the fact that Vukdelich was employed by Respondent
at the time he testified. But based on the foregoing and consid-
ering the relative demeanor of the witnesses I do not credit
Vukdelich’s testimony on this matter. One last credibility mat-
ter must be addressed. Kellogg testified that on December 9 or
10 he asked Valero by telephone if he could move forward with
the advertising and Valero agreed. On direct examination,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD802
Valero testified to a conversation where he advised Kellogg
that he was going to put up notices to employees of the meet-
ings concerning the proposals and that he asked Kellogg to be
sure that the notices were not taken down by supervisors. After
Kellogg testified as described above, Valero was recalled by
the General Counsel on rebuttal and testified that during this
same conversation Kellogg mentioned that he wanted the new
ads to get out and he answered that they had the two meetings
set up and that he was acting as quickly as he could and that
Kellogg needed to do what he needed to do. When I asked
Valero why he had not mentioned this portion of the conversa-
tion during his earlier testimony he stated that he forgot. This
testimony supports my conclusion not to rely on Valero’s tes-
timony on this matter.
In sum, the credited facts show that the Union agreed to al-
low Respondent to grant wage increases to unit employees and
that the only remaining matter was the formality of signing the
agreement. Thereafter, the Union interjected the matter of
membership approval and never signed the agreement. But the
fact that the Union never signed the agreement does not detract
from the fact that it agreed to allow Respondent to make the
changes. Because Respondent in fact obtained the Union’s
consent to make the changes, it follows that this allegation must
be dismissed.
D. Related Request for Information Allegation
As noted above, on December 17 the Union filed a grievance
concerning Respondent’s use of nonunit workers to perform
unit work. That same day the Union sent Respondent a request
for information for the week ending December 18 concerning
what the request described as “Other than Bargaining Unit Em-
ployees Performing Bargaining Unit Work.” The request con-
sisted of eight pages and is attached in full to the complaint.
Among other things, the Union wanted the name, address, and
telephone number of persons who were not in the bargaining
unit but who performed bargaining unit work, and the pay rate
while performing unit work. It asked for the person’s date of
hire, work history, the dates and hours the employee performed
unit work, the benefits extended to these employees, and other
information. Thereafter, the Union made similar requests for
information covering different periods of time.
On January 19, Respondent sent the Union a letter requesting
that the Union provide in writing why the Union thought the
requested information was relevant. The letter explained that
Respondent:
[W]as forced to use other means to fill the vacant
routes on this emergency basis due to the Employer’s in-
ability to staff enough regular full-time operators, the lack
of volunteers to work overtime and the Employer’s inabil-
ity to hire enough part-time operators. It is crucial to point
out that the Collective Bargaining Agreement does not
prohibit the Employer from utilizing supervisors and/or
other ATC employees when there is a shortage of full-time
and part-time operators. Additionally, the Employer made
the Union aware of this problem prior to the week of De-
cember 12, 2004 through December 18, 2004 when the
Employer met with the Union and offered the Union a
wage increase package, which would have allowed the
Employer to attract and retain operators. However, the
Union voted to reject the Employer’s incentive offer,
which resulted in the Employer being forced to seek addi-
tional emergency assistance. This was after you and the
committee unanimously accepted the proposal.
The Employer believes that using other ATC employ-
ees was appropriate. Even though the Union backed the
Employer into a corner with their refusal to accept the
wage increase, the Employer has continually employed
every full and part-time operator in accordance with the
Collective Bargaining Agreement. Moreover, the Em-
ployer only used other ATC employees after the Employer
exhausted every possible option with the full and part-time
operators. To the Employer’s knowledge, no regular, full
or part-time operator was denied any work during the
week at issue. It is the Employer’s assumption that the
Union perceives the Employer’s action of filling the va-
cant routes as appropriate. If the Employer had not filled
the vacant routes, customers and patrons would have been
left stranded at ATC bus stops without any means of
transportation. It was clearly not our intent when we
signed the Collective Bargaining Agreement to leave cus-
tomers and patrons stranded. If it was our intent, we
would never have included Sections 7.1 and 9.1 in the
Collective Bargaining Agreement. Section 7.1 states,
“They [Union members] shall at all times use their influ-
ence and best endeavors to preserve and protect the inter-
est of the Company and cooperate in the promotion and
advancement of the Company’s interest.” Section 9.1 in
pertinent part states, “It is mutually desired by the Com-
pany and the Union to deliver uninterrupted public service
to the Citizens of Clark County.”
If any of the Employer’s assumptions are incorrect,
please correct the Employer in your response. Also, if you
still believe that a response remains necessary for any of
the items that you requested in your December 17, 2004
letter, please indicate why each request is relevant, and the
Employer will continue to collect and organize the data.
As previous[ly] stated, the Employer does not perceive
this request as relevant. The information request does not
relate to bargaining unit employees, and the Employer
perceives this information as confidential. Moreover, your
requests are extremely vague. For example, are you as-
suming that supervisors are getting paid and compensated
differently for the emergency assistance they are provid-
ing?
Therefore, if you still desire to have the Employer re-
spond to your information request, please provide the Em-
ployer a response indicating why you believe each request
is: (1) relevant, (2) not confidential, (3) what specifically
you are seeking and (4) for what time period.
The Union replied on January 19, 2005. It advised Respondent
that it was the arbitrator and not Respondent who decides if the
collective-bargaining agreement is violated. It continued:
Obviously, it is Local 1637’s position that all bargain-
ing unit work done must be done under the terms of the
contract and if you utilize employees to perform this work
ATC OF NEVADA 803
they must be employed pursuant to the terms of the Col-
lective Bargaining Agreement.
While you assert that the Union rejected the Em-
ployer’s offer after the committee had unanimously ac-
cepted the proposal, which is not factually correct. The
committee told you that they would recommend the pro-
posal but they were going to take it back to the member-
ship. The committee in fact recommended the proposal
and then the membership in fact rejected it.
. . . .
The purpose for requesting the information is to de-
termine whether or not in fact the Employer is utilizing the
terms of the Collective Bargaining Agreement to govern
the employment of all people performing bargaining unit
work.
The letter then provided a more detailed explanation of why the
information was relevant and rejected the assertion that it was
confidential.
Respondent did not provide the requested information to the
Union.
Analysis
An employer must provide a union with requested informa-
tion that is relevant and necessary for the union to carry out it
duties as the exclusive collective-bargaining representative of
the unit employees. NLRB v. Acme Die Casting Co., 385 U.S.
432 (1967).
Respondent correctly points out that where a union requests
information concerning employees outside the bargaining unit
that the union represents, the union must show that the informa-
tion is relevant. Respondent argues that the Union here has
failed to do so. It points to the January 19 letter, described
above, where Respondent asked the Union to explain the rele-
vance of the requested information and to the Union’s response
where, according to Respondent, “The Union, without an ex-
planation, merely concluded its requests were relevant.” (Em-
phasis in original.) I found no merit to this argument. Under
the circumstances here, where the Union filed a grievance con-
tending in part the contract should be applied to the persons
performing unit work, and that same day the Union requests
information concerning those persons and their working condi-
tions, the relevance should have been obvious; the information
was relevant to process the grievance. Moreover, contrary to
Respondent’s description of the Union’s response to Respon-
dent’s January 19 letter, as described above the Union specifi-
cally explained the relevance of the information.
Finally, although I have dismissed the allegations of the
complaint concerning Respondent’s assignment of unit work to
nonunit workers, I have described above the narrow basis of
that allegation. I note that the contentions made by the Union
in its grievance are different from the allegations in the com-
plaint.
By failing to provide the Union with the information it re-
quested concerning nonbargaining unit persons performing
bargaining work, Respondent violated Section 8(a)(5) and (1)
of the Act.
E. Call-In Allegations
Full-time coach operators drive a set route each day of their
workweek. Full-time extra board coach operators work within
a band of times on routes that may vary from day to day. When
necessary, employees were required to work overtime on their
days off.
On November 23, 1999, Respondent and the Union entered
into a grievance settlement that set forth the conditions under
which employees were required to work overtime. It covered
matters such as a 4-hour pay guarantee and circumstances un-
der which employees would not be disciplined if they failed to
work overtime. It provided that full-time extra board operators
who are not scheduled to work will be notified of the overtime
at the end of their last scheduled consecutive day of the em-
ployee’s work week. Full-time coach operators who worked
overtime on their days off would be notified by a list to be
posted at the scheduling office by 4 p.m. on the preceding day.
If the preceding day is a regularly scheduled day off, the em-
ployee would be notified at the end of his/her last shift when
possible. Pursuant to this settlement Respondent notified em-
ployees of forced overtime by daily postings that occurred for
the next day’s work. Problems occurred when employees were
off for several consecutive days. For example, an employee
might work Monday through Thursday, 10 hours per day, and
be off Friday, Saturday, and Sunday. When the employee com-
pleted work on Thursday the work schedule for Friday was
posted but the schedules for Saturday and Sunday would not
yet be posted. Under those circumstances the employee had to
either visit the facility or call in to learn if he or she had to work
the next day. Otherwise, if the employee were required to over-
time and did not appear the employee would be a “no call/no
show” and subject to discipline.
On September 2, Respondent posted a memorandum to all
operators advising them of the development and implementa-
tion of “prospective force lists.” These lists would have the
names of operators who might be forced to work overtime on
their regularly scheduled days off. These lists would be posted
daily and would cover the next 3 successive days. It is impor-
tant to note that these lists did not eliminate the need to call in
to see if an operator was actually forced to work overtime; in-
stead it reduced the number of operators who had to do so.4
On December 17, Respondent posted a memorandum ad-
dressed to fixed route coach operators concerning the subject of
“forced overtime.” It stated, “Due to the lack of manpower, we
ask that you make sure that you call dispatch both Tompkins
and Simmons yard on all of your days off for possible assign-
ment. Forced overtime can happen on any of your days off,
until we work through this crisis.” That same day the Union
filed a grievance over the December 17 posting. The grievance
contended that the posting implied “at least, that all drivers are
required to call both yards for possible assignment on every day

4 The memorandum states that the potential force lists procedure was
made in agreement and cooperation with the Union. Valero admits that
Respondent advised him of the procedure before it was implemented
but denies he agreed to it. Because the complaint does not allege that
the implementation of the force list procedure was unlawful I need not
resolve this factual dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD804
they have off. There is nothing in our Collective Bargaining
Agreement that imposes upon an Employee the obligation to
call the Company on his or her day off for possible assign-
ment.”
Leonard Sharp has worked as a fixed route coach operator
for Respondent since June 2003. During around April 2005 his
days off were Saturday, Sunday, and Monday. On April 7, he
was directed to see J-nean-e Mills, a senior supervisor. Mills
informed Sharp that he had received two no call/no shows for
not coming to work on two Sundays. Mills also told him that
he was being placed on a “condition of employment;” that
meant Sharp would be terminated if he committed any more
infractions within the next 6 months.
Analysis
The General Counsel alleges in the complaint that Respon-
dent violated the Act because December 17 memorandum
changed working conditions in two respects. First, it required
employees to call in to see if they were required to work over-
time. Second, it required employees to call both yards. It is
again important to note that the complaint alleges that these
changes could be made only with the consent of the Union. In
support of this theory the General Counsel does not point to any
provision in the contract that was breached; rather, the General
Counsel relies on the November 23, 1999 grievance settlement.
United Postal Service, 332 NLRB 340 (2000).
Turning to that grievance settlement, the General Counsel
writes in his brief that the grievance settlement described above
“obligates Respondent to call employees for forced overtime
work. (Tr. 64 and 65-Kellogg.)” That statement is correct, but
only in a misleading way. The grievance settlement and Kel-
logg’s testimony both point out that Respondent calls part-time
extra board drivers at home; these employees do not have fixed
routes. The December 17 memo posted by Respondent and
alleged as unlawful is addressed only to fixed route coach op-
erators. Neither the grievance settlement nor Kellogg’s testi-
mony indicates that Respondent is required to call these em-
ployees at home to work forced overtime. Rather, the evidence
shows that the coach operators subject to forced overtime have
had to find out for themselves whether they are scheduled to
work that overtime on their days off. Of course, I do not decide
whether the December 17 memorandum changed working con-
ditions when compared to the September 2 memorandum con-
cerning forced overtime because that matter was not alleged to
be a violation and the matter was not fully litigated.
It is important to note that employees are not disciplined if
they fail to call in to find out if they are scheduled to work
overtime. So long as they continue to find out on their own
about their overtime schedules they are not disciplined if they
either work the overtime or have a good reason to be excused
from doing so. The practice that developed under the Novem-
ber 23, 1999 grievance settlement remained unchanged. Fi-
nally, in his brief the General Counsel does not explain what
contractual obligations were breached by any requirement that
employees call both yards. Because the General Counsel had
failed to show that the December 17 memorandum made any
changes of the type that needed the consent of the Union, I shall
dismiss this allegation of the complaint.
F. Related Request for Information Allegation
On February 28, the Union sent Respondent an information
request “on all operators who have been forced to work over-
time.” The Union requested the names of all operators who
were assigned forced overtime from January 1, 2004. It re-
quested the employee number, seniority number and each date
the employee was assigned the forced overtime. The Union
also asked for each date the employee was assigned the forced
overtime but did not work it, whether the operator was excused
from working the forced overtime, whether the operator was
required to call in to learn of the overtime assignment, whether
the operator received an attendance infraction for not working
the forced overtime and the nature of the infraction, and other
related information. Respondent did not supply the informa-
tion.
Analysis
The requested information is patently relevant as it relates to
the terms and conditions of employment of the unit employees.
Moreover, the requirement of forced overtime was a real con-
cern to unit employees at the time the Union made the request
and the December 17 memo was followed by a grievance filed
by the Union. The fact that I have dismissed the narrowly
drawn allegations in the complaint does not negate the rele-
vance of the requested information. The Union was still enti-
tled to attempt to get the scope of the problem to either support
the grievance or to inform the position it would take with Re-
spondent in the ongoing discussions of the issue.
Respondent contends that the Union requested the informa-
tion merely to harass it. There is no evidence to support this
contention and I reject it. Respondent contends the Union
waived its right to the information in the November 23, 1999
grievance settlement. But it does not point to any provision in
that settlement agreement that either covers information re-
quests or clearly and unmistakably waives the Union’s right to
this information.
By failing to provide the Union with the information it re-
quested concerning forced overtime work, Respondent violated
Section 8(a)(5) and (1) of the Act.
G. Threat and Interrogation Allegations
On December 24, Kellogg sent a memorandum to all bar-
gaining unit employees and the Union. It began:
Recently there have been rumors of a slow-down, sick-out
and/or “blue flu” possibly planned to take place in the next
few weeks. Pleased be advised that such an action by an em-
ployees or group of employees is against the law and in viola-
tion of the Collective Bargaining Agreement (CBA).
The letter quoted Section 9 of the contract. That section pro-
vides that the Union and its members will not engage in “any
job actions including but not limited to picketing, strikes, walk-
outs, slowdowns, stoppages, sick outs or similar cessation of
work . . . .” That section also provides that the Respondent has
the right to discipline “any employee who is found to be re-
sponsible for, participates in or gives leadership to any activity
herein prohibited.” The December 24 memorandum advised
employees that Respondent reserved its right to discipline em-
ATC OF NEVADA 805
ployees in the event that there was activity that was prohibited
by Section 9.
On December 28, Kellogg called Valero and asked to meet
with the Union’s executive board. Valero was able to locate
Vukdelich and Koren Johnson and the three of them went to
Simmons yard where Kellogg’s office is located. Kellogg
came out of his office accompanied by a number of supervisors.
Kellogg told the Union officials to follow the supervisors; that
the three would be sent into separate rooms to answer ques-
tions. Valero protested that they were there to meet with Kel-
logg and would not be placed in separate rooms; that they were
there as union officers and were not on the clock. A supervisor
asked whether they were refusing to cooperate with the investi-
gation and Vukdelich answered yes, and that he had a tape
recorder and was going to tape the conversation. Another su-
pervisor stated that he objected to the recording and told Vuk-
delich to put away the recorder. Valero replied that they were
not going to be subjected to those tactics and they started to
walk away. A supervisor then said that they were all under
investigative suspension for failing to cooperate, that they are
not to report to work, and that they had to leave the property all
the while angrily shaking his finger at them. After the union
officials walked out the door Kellogg approached them; after
some discussions they agreed to answer the questions but
would be placed on the clock and would not be separated. The
union officials returned to the office where they sat around a
table and answered the questionnaire. While they were doing
so Kellogg apologized for the investigative suspensions and
withdrew them.
The questionnaire that the union officials completed was
preceded by a memorandum. The subject of the memo was
“investigation” and read:
Please be advised we have reason to believe that you may be
participating in or assisting in an effort to engage in an unlaw-
ful work stoppage planned to occur over the next few weeks.
Accordingly, this is your opportunity to “tell me your side of
the story” in this regard. Such a statement, should consist of
any and all facts, names, persons participating, arrangements,
contacts, dates, plans, efforts, or any and all information you
have regarding a planned work stoppage, job action, sick out,
flu out or any similar type of activity in violation of the collec-
tive bargaining agreement.
The memo explained that Respondent reserved its right to dis-
cipline employees for violations of Section 9 of the contract
and quoted those portions of the contract. The questionnaire
that accompanied the memo asked the following five questions:
During the past 30 days, what communications have
you had with ATC employees concerning a work slow
down/work stoppage?
What communications have you had with ATU offi-
cials from other ATU locals concerning the use of em-
ployees from other properties at the ATC location?
What communications have you had with elected offi-
cials concerning a work stoppage/work slowdown?
Specifically, what communications during the past 30
days have you had with Las Vegas Mayor Oscar Good-
man?
What communications during the past 30 days have
you had with any representative of the Regional Transpor-
tation Commission concerning a work stoppage/work slow
down?
All the executive board members answered that they had no
conversations or involvement with any work stoppage.
Analysis
Interrogations of employees concerning their union activities
are not unlawful per se; rather all relevant circumstances must
be considered to determine whether or not the questioning is
coercive. Rossmore House, 269 NLRB 1176 (1984) affd. sub
nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Here, the questioning was performed at the insis-
tence of a high-ranking official accompanied by a number of
other supervisors marshaled to assist in the matter. It occurred
in or near the high-ranking official’s office as opposed to in the
employees’ work area. It was accompanied by a threat of dis-
cipline and then the imposition for discipline, albeit only
briefly. There is little doubt that under all the circumstances
the questioning was coercive.
Respondent defends its conduct on the basis that, as indi-
cated above, the contract forbids employees from engaging in a
work stoppage or slowdown and it was reasonably attempting
to ascertain if such conduct was about to occur. This argument
fails for at least two reasons. First, Respondent has failed to
show that it had a reasonable basis for singling out the union
hierarchy for such interrogations. Although the events sur-
rounding Thanksgiving Day gave cause for suspicion that the
call outs could have been coordinated, there was no evidence
linking those events to the leadership of the Union. Nor did
Respondent present any evidence to connect the union leader-
ship with any fears of future slowdowns. Second, the question-
ing went beyond questions concerning an anticipated slow-
down. Specifically, questions two and four were not so limited.
I conclude that by coercively interrogating employees con-
cerning their union activities Respondent violated Section
8(a)(1). It follows that by threatening to discipline employees
if they did not answer questions concerning their union activity
Respondent also violated Section 8(a)(1).
H. Bid Routes and Bidding Process Allegations
As provided in the collective-bargaining agreement, Respon-
dent creates bid packets that employees periodically select by
seniority. John Collins, a full-time coach operator, has been
employed by Respondent since 1992. He operated the same
route off and on for about 7 to 8 years; he had selected that
route through the contractual bidding process. On December
24, he was told he would not operate that route; he was not
given a reason why he would no longer do so. On his next
regular workday he resumed operating his regular route. When
Stanley Homme, also a coach operator, returned from vacation
on January 3 Respondent’s dispatcher advised him that the
route he had earlier selected through the contractual bidding
process and had operated for months had been canceled.
Homme heard rumors that RTC was thinking of canceling the
route due to low ridership. For several weeks Homme was
placed on “show” status where he was required to report to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD806
work each day at his regular starting time and wait for work to
be assigned to him. Some days no work was available so he sat
around or did miscellaneous small chores. Routes were rebid in
February at which time Homme selected another route and his
“show” status ended.
Vukdelich admitted that Respondent advised the Union that
these route changes were made by the RTC. In the case of
Collins’ situation RTC gave the route for a few days to a direct
competitor of Respondent. In fact, on January 10 Valero and
Vukdelich met with the chairman and the general manager of
the RTC who confirmed that the RTC had implemented cut-
backs for Respondent’s routes. Respondent did not offer to
bargain with the Union concerning the routes RTC had taken
away from Respondent or had eliminated. Over the years RTC
had decided to add, alter, and eliminate routes and the Union
has never requested to bargain with Respondent over those
matters. Historically, drivers adversely affected by these
changes would then be placed on “show” status and continue to
work their regular hours by performing whatever unit work
became available until they were able to successfully bid on
another regular route.
Analysis
The complaint originally had two separate allegations related
to the bidding process. Paragraph 8(d) of the complaint alleged
that Respondent eliminated certain bid routes for employees in
the unit on about December 20. In his brief, the General Coun-
sel seeks permission to withdraw that allegation. Permission is
granted and that allegation is withdrawn from the complaint.
The remaining allegation, in paragraph 8(e) of the complaint, is
that on or about December 20 Respondent “failed to follow the
bidding process of the Agreement” without first getting the
Union’s consent. In his brief, the General Counsel argues that
Respondent failed to follow the contractual bidding process by
placing Homme and Collins on “show” status after their runs
were withdrawn by the RTC. But the General Counsel has
already conceded that elimination of the runs did not violate the
Act and there is nothing in the contract that deals with how
Respondent must treat coach operators whose runs are canceled
or altered by the RTC. I dismiss this allegation of the com-
plaint.
I. Related Refusal to Provide Information Allegation
On February 1, the Union by letter asked Respondent to pro-
vide it with information concerning employees “who have
[ceased] performing their bid in works since Decem-
ber 1, 2004.” In the letter the Union asserted that a number of
bargaining unit employees had complained that they had been
transferred off of their bid selection in violation of the contract.
The letter stated that information was needed “to evaluated
these allegations in the context of possible violations of the
collective-bargaining agreement.” The letter then listed 11
specific items of information for employees who “have ceased
performing the work which they bid on in their last bid.” The
items included the name of the employee, the employee’s last
run number, the date the employee last performed that work,
the name and seniority of the person who has performed the
work of the employee, the reason the employee was removed
from the route, and other related information.
Respondent never provided this information to the Union.
Analysis
The information requested by the Union is relevant for the
Union to determine whether Respondent has violated the con-
tract. The fact that I have decided above that Respondent has
not violated the Act or the contract by placing Homme and
Collins on “show” status is beside the point because the Union
is entitled to decide for itself, in the first instance, whether it
believes the contract has been violated and it is entitled to the
requested information to make that determination.
Respondent again argues that it should be excused from pro-
viding this information because the Union made the request in
order to harass Respondent, but there is no evidence to support
in the record to support this contention. By refusing to provide
the Union with the information it requested concerning em-
ployees who no longer worked on their bids, Respondent vio-
lated Section 8(a)(5) and (1).
J. TDAN Grievance Allegation
On August 28, 2003, TDAN filed a petition to represent Re-
spondent’s employees; that petition was dismissed by the Re-
gional Director because the collective-bargaining agreement
between Respondent and the Union barred an election at that
time. On February 9, a grievance was filed with Respondent
concerning then-employee Elizabeth Murray. The grievance
was on a form labeled “Grievance Form Transit Drivers Asso-
ciation of Nevada.” It described that nature of the grievance as
“Abuse of scheduled days off, misuse of FMLA hours, harass-
ment, discrimination because of affiliation with TDAN.” The
grievance bore the signatures of Murray and Terry Richards as
the “TDAN Rep.” Richards has worked for Respondent for
over 10 years as a fixed coach operator. Richards recorded the
grievance on the grievance log maintained by Respondent.
Before filing the grievance Murray and Richards met with
Barry Goldsmith, a supervisor. Murray presented her side of
the grievance and Goldsmith indicated that Murray had so
many miss-outs that the discipline was warranted. Richards
made a point of how she felt Respondent had treated Murray
unfairly. Goldsmith said that he would look into the matter and
get back to them. On March 2, Kellogg informed Murray by
letter that he had been advised that Murray was contending that
Respondent had failed and refused to process the grievance
filed on her behalf. Kellogg indicated in the letter that Respon-
dent had received and processed the grievance but that the
grievance was denied. He also indicated that the grievance
could be appealed to the next level of the grievance procedure
and that “[w]e are willing and able to advance this grievance to
the next level with regard to this grievance which was filed by
Terry Richards.” On March 16, Richards wrote Kellogg advis-
ing him that his response denying the grievance was untimely
under the collective-bargaining agreement. She requested that
Murray be made whole and reinstated immediately. Kellogg
replied to Murray on March 24, and advised her that he was
moving the grievance to the next level and asking for her avail-
able dates to discuss the grievance. On May 31, Kellogg ad-
vised TDAN Representative Richards that Respondent was
prepared to go to the next step of the grievance procedure if
“TDAN and/or Elizabeth Murray either jointly or individually
ATC OF NEVADA 807
are willing to pay $425, half of the cost of the next step.” Kel-
logg noted that the money must be paid to the third-party neu-
tral in cash or cashier’s check before the hearing. Typically,
Respondent and the Union equally shared the cost of the neutral
used at this stage of the grievance procedure. Kellogg testified
that Respondent did not receive a reply and nothing more has
occurred concerning the grievance. Kellogg testified that there
had not been an adjustment of the grievance so he felt it was
unnecessary to involve the Union at that point. Richards testi-
fied that she responded by letter dated June 25, 2005. In that
letter Richards protested having to deposit the $425. She ended
the letter by stating:
Because it seems that you chose [to] ignore the grievance
process according to the CBA that you signed!, you leave us
no choice but to go ahead and file a law suit against you and
ATC/VANCOM of Nevada in federal court.
Richards testified that Respondent never replied to the letter
and telephone calls she made to Kellogg were not returned.
Analysis
Citing Crown Cork & Seal Co., 334 NLRB 609, 700 (2001),
the General Counsel writes “By accepting and processing the
TDAN grievance filed by Richards on February 9, 2005, and
continuing to process the grievance through at least May 31,
2005, Respondent violated Section 8(a)(1) and (2) of the Act.”
But Crown Cork 7 Seal stands for no such proposition; indeed
both the judge and the Board dismissed the entire complaint.
However, as the Union argues in its brief, it is the exclusive
collective-bargaining representative of the unit employees;
Respondent may not deal with any other labor organization
concerning the working conditions of unit employees. Here,
Respondent dealt with another labor organization—TDAN—in
processing a unit employee’s grievance.
Respondent makes several arguments in an effort to justify
its conduct. Respondent points out that the contract allows
individuals to file grievances and then argues that this is a case
of an individual filing a grievance. But this case involves
more; here TDAN represented the employee filing the individ-
ual grievance. Respondent argues that I should draw an ad-
verse inference from the General Counsel’s failure to call
grievant Murray as a witness. The adverse inference, according
to Respondent, is that Murray did not intend to elicit TDAN’s
assistance. But Murray’s subjective intent is not dispositive.
As outlined above, the objective facts show that TDAN repre-
sented Murray and Respondent dealt with TDAN on the griev-
ance. Next Respondent argues that the evidence is insufficient
to show that TDAN was a labor organization at the time of the
grievance. However, 16 months prior to the grievance TDAN
had filed a petition to represent the employees and deal with
Respondent if it won the election. As previously noted, em-
ployees participate in TDAN. It easily meets the statutory defi-
nition of a labor organization set forth in Section 2(5) of the
Act. Finally, Respondent argues that its conduct here is de
minimis. It cites Vons Grocery Co., 320 NLRB 53 (1995);
Webcor Packaging, 319 NLRB 1203 (1995); and Stoody Co.,
320 NLRB 18 (1995). Those cases, however, dealt with the
issue of whether or not an organization was a statutory labor
organization and therefore are inapposite.
By dealing with a labor organization other than the Union in
processing employee grievances Respondent violated Section
8(a)(2) and (1).
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning their
union activities and by threatening to discipline employees if
they did not answer questions concerning their union activity
Respondent violated Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By dealing with a labor organization other than the Union
in processing employee grievances Respondent violated Sec-
tion 8(a)(2) and (1) and Section 2(6) and (7) of the Act.
3. By failing to provide the Union with the information it
requested concerning nonbargaining unit persons performing
bargaining work, concerning employees who no longer worked
on their bids, and concerning forced overtime work, Respon-
dent violated Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that Respondent has
unlawfully failed to provide the Union with information that the
Union requested I shall order Respondent to provide that in-
formation.
[Recommended Order omitted from publication.]