Atlantic Limousine, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1995

316 N.L.R.B. 822 (N.L.R.B. 1995)

822
316 NLRB No. 136
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.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1), (3), and (4) by discharging Glenn Gerrity, we find it unnec-
essary to rely on the judge’s characterization of the Respondent’s
claim that dispatchers did not notice Gerrity’s alleged $3 overcharge
of his parking and other fees as ‘‘inherently unbelievable.’’
We find merit in the General Counsel’s exceptions to the follow-
ing inadvertent errors by the administrative law judge which do not
affect the conclusions herein. The judge incorrectly stated that em-
ployee Henry Purcell worked continuously from 10 p.m. on April
23, 1992, until approximately that time on April 24. In fact, Purcell
worked from 10 p.m. on April 22 until 7:30 p.m. on April 23. The
judge also incorrectly stated that Purcell did not work the day after
this long shift. Finally the judge incorrectly found that employee
Louis Babich, as part of his solicitation of union authorization cards,
had distributed cards to employees in the Respondent’s dispatch of-
fice.
2 Pizzutillo testified that he refused the airport fare because he felt
that the traffic patterns on New York City’s road network would
prevent him from reaching home by 1 a.m.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 395 (1983).
Atlantic Limousine, Inc. and Teamsters Local
Union No. 331, affiliated with International
Brotherhood of Teamsters, AFL–CIO. Cases 4–
CA–21505, 4–CA–21552, 4–CA–21697, 4–CA–
21740, and 4–RC–18132
March 24, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On April 26, 1994, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed exceptions, a supporting
brief, and an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. We find merit in the General Counsel’s exception
to the judge’s dismissal of the allegation that the Re-
spondent’s suspension of employee Joseph Pizzutillo
for refusing a fare violated Section 8(a)(3) and (1) of
the Act.
The Respondent operates a luxury limousine service
in Atlantic City, New Jersey. It operates under contract
to several casinos in order to provide round-the-clock
service to the casinos’ customers. The Respondent
maintains dispatch centers and driver waiting rooms at
these casinos, from which it assigns fares to the driv-
ers. Pizzutillo worked out of the Trump Castle casino,
where Stan Kell acted as the dispatcher.
The judge found that Pizzutillo and the Respondent
had an agreement that Pizzutillo would not be given
assignments which would prevent him from arriving
home by 1 a.m. in order to care for his invalid room-
mate. Around the end of April 1993, during the late
afternoon, the Respondent assigned Pizzutillo to pick
up a passenger at the Showboat casino and deliver him
to the Jackson Heights area in the northern part of
New York City’s Queens Borough. However, upon
Pizzutillo’s arrival at the Showboat casino, the Re-
spondent’s dispatcher at that location, Gary Ng, in-
formed him that the fare had been assigned to another
driver and that he had been reassigned to a fare to
John F. Kennedy Airport in southern Queens.
Pizzutillo informed dispatcher Gary Ng that he was re-
fusing the fare and going home.2 Ng did not respond,
and Pizzutillo returned to the Trump Castle, where dis-
patcher Kell suspended Pizzutillo for 4 days, a dis-
cipline which the Respondent, through Supervisor
David Geiger Jr., subsequently affirmed.
While the judge found ample evidence of animus to-
ward union activity, both in regard to Pizzutillo and
others, he nonetheless concluded that the Respondent
did not suspend Pizzutillo in reprisal for his union ac-
tivity, but because he refused the run in an abrupt
fashion, which made it difficult for the Respondent to
fulfill its contract with the casino. We disagree.
The General Counsel clearly established the Re-
spondent’s union animus. As detailed in his decision,
the Respondent committed serious unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act,
including an unlawful interrogation by Supervisor
David Geiger Jr. of Pizzutillo, a known union activist,
concerning his attendance at a union meeting and the
size of this meeting. The Respondent suspended
Pizzutillo a mere week after this incident.
In light of these unfair labor practices and the timing
of Pizzutillo’s suspension, we find that the General
Counsel established a prima facie showing under
Wright Line3 that the suspension was motivated by
Pizzutillo’s union activities. We further find, contrary
to our dissenting colleague, that the Respondent failed
to rebut this prima facie showing.
There is no support in the record for the judge’s
conclusion, with which our dissenting colleague
agrees, that the abrupt fashion in which Pizzutillo re-
fused the run to the airport was the motivating factor
in the Respondent’s decision to impose a 4-day sus-
823ATLANTIC LIMOUSINE, INC.
4 Dispatcher Kell did not testify at the hearing.
5 The judge mistakenly identified the Respondent’s official pro-
mulgating the shifting explanations as Leon Geiger, instead of David
Geiger Jr.
pension on Pizzutillo. As noted above, dispatcher Ng
did not tell Pizzutillo at the Showboat, the scene of the
incident, that he was being suspended. Further,
Pizzutillo testified, without contradiction, that dis-
patcher Kell did not inform him at the time of his sus-
pension why he was being suspended.4 General Man-
ager Leon Geiger testified that when Pizzutillo subse-
quently appealed the suspension to him, he imme-
diately referred him to his son, David Geiger Jr. It was
only at this point that the Respondent gave an expla-
nation to Pizzutillo for his suspension, i.e., David Gei-
ger Jr. told him that he was sustaining the suspension
because Pizzutillo had thrown a paper at dispatcher
Ng. When Pizzutillo denied this action, Geiger then
stated that Pizzutillo had shouted at the dispatcher.
Furthermore, Geiger testified at the hearing that
Pizzutillo was suspended for harassing the casino’s
marketing personnel regarding the change in assign-
ment. And, most significantly, Geiger testified that
Pizzutillo was not suspended for his refusal of a driv-
ing assignment.
From the above, it is clear that the Respondent has
never asserted that Pizzutillo’s suspension was based
on the fact that Pizzutillo refused a driving assignment.
It is equally clear that David Geiger Jr. responded both
to Pizzutillo and at the hearing with shifting reasons
for Pizzutillo’s suspension.5 It is the Board’s policy
that a ‘‘respondent’s inability to adhere with consist-
ency to any explanation for its action in terminating an
employee warrants an unfavorable inference against
that respondent.’’ Laidlaw Transit, 315 NLRB 509
(1994), quoting P*I*E Nationwide, 282 NLRB 1060,
1065 (1987). At the very least, such inconsistent expla-
nations constitute unreliable proof of innocent motiva-
tion. See Pincus Elevator & Electric Co., 308 NLRB
684, 695 (1992); Reno Hilton, 282 NLRB 819, 835
(1987).
Further, Geiger testified at the hearing that the Re-
spondent’s usual response to a driver’s refusal to take
a run was to send him home for the day. Such testi-
mony clearly undercuts our dissenting colleague’s con-
clusion that Pizzutillo’s 4-day suspension was dis-
cipline ‘‘appropriate to the offense’’ or the judge’s
conclusion that it was ‘‘modest discipline.’’
Finally, we note, in response to our dissenting col-
league, that although Pizzutillo did not raise his agree-
ment with the Respondent as a defense to his refusal
of the driving assignment, the fact remains that the Re-
spondent never asked Pizzutillo why he refused the as-
signment but rather advanced shifting and internally
inconsistent reasons for the suspension. Under these
circumstances, we would not find that Pizzutillo’s fail-
ure to mention the agreement, a fact of which Re-
spondent was aware, constitutes rebuttal of the General
Counsel’s prima facie case.
Accordingly, we reverse the judge and find that the
Respondent failed to establish that it would have sus-
pended Pizzutillo in the absence of his union activity
and that the Respondent’s suspension of Pizzutillo vio-
lated Section 8(a)(3) and (1) of the Act.
2. We also find merit in the General Counsel’s ex-
ception to the judge’s apparent inadvertent failure to
find that the Respondent’s excessive deduction of taxes
from a paycheck of employee Glenn Gerrity and its re-
duction of employee Walter Jenkins’ hours violated
Section 8(a)(3) and (1) of the Act, as alleged in the
complaint.
In regard to the deduction from Gerrity’s paycheck,
the judge found that in late February and early March
1993 the Respondent committed a series of unfair
labor practices against Gerrity, the employee who had
initiated the Union’s organizing campaign. In this re-
gard, the judge found that the Respondent had unlaw-
fully docked Gerrity’s pay and charged him for the
cost of three videotapes. In addition, the judge found
that the Respondent had unlawfully cut Gerrity’s hours
and unlawfully discharged him. In this context, it is
clear that the Respondent’s admitted deduction of half
of Gerrity’s yearly bonus check for taxes was part of
the Respondent’s unlawful conduct toward Gerrity and
thus constituted a violation of Section 8(a)(3) and (1)
of the Act, as alleged.
In regard to the reduction of Jenkins’ hours, the
judge found that shortly after Jenkins’ known union
activities, the Respondent had reduced his hours of
work despite the availability of work and that the Re-
spondent’s dispatcher, Ng, told Jenkins that the Re-
spondent had told him not to give Jenkins work. The
judge further found that Jenkins’ subsequent discharge
violated Section 8(a)(3), (4), and (1) of the Act. Under
these circumstances, we find that the General Counsel
established a prima facie showing that the Respond-
ent’s reduction of Jenkins’ hours was motivated by his
union activities. The Respondent asserts in its brief
that the General Counsel failed to establish that Jen-
kins’ hours were fewer than the average hours worked
by other employees and that the alleged reduction oc-
curring in an isolated 2-week period was statistically
insignificant. Even if true, the Respondent’s assertions
do not constitute a defense to the reductions in Jen-
kins’ hours. The Respondent has offered no other de-
fenses, and, as it has failed to establish that it would
have reduced Jenkins’ hours in the absence of his
union activities, we find that the Respondent violated
Section 8(a)(3) and (1) by reducing Jenkins’ hours, as
alleged in the complaint.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.’’
1 The General Counsel does not allege that the assignment was un-
lawfully motivated.
2 The agreement did not authorize Pizzutillo to refuse assignments.
ORDER
The National Labor Relations Board orders that the
Respondent, Atlantic Limousine, Inc., Pleasantville,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities or the union activities of other
employees.
(b) Threatening employees with layoffs, subcontract-
ing of work, or plant closure if they select the Union
as their bargaining representative.
(c) Promising employees benefits if they will aban-
don their union activities.
(d) Soliciting grievances from employees during an
organizing campaign with a view toward adjusting the
grievances.
(e) Discouraging membership in or activities on be-
half of Teamsters Local Union No. 331, affiliated with
the International Brotherhood of Teamsters, AFL–CIO,
or any other labor organization, by discharging em-
ployees, denying them work opportunities, reducing
their hours of work, suspending them, conditioning im-
provements in wages, hours, or working conditions
upon the abandonment of union activities, or harassing
employees with groundless complaints demanding fi-
nancial restitution or through paycheck deductions.
(f) Discharging or otherwise discriminating against
employees because they have filed charges or given
testimony under the Act.
(g) In any other manner interfering with, restraining,
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) Offer Glenn Gerrity, Louis Babich, Henry Pur-
cell, and Victor Jenkins full and immediate reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or to any other rights and
benefits previously enjoyed, and make them whole for
any loss of pay and benefits which they may have suf-
fered by reason of the discrimination practiced against
them, with interest, as provided in the remedy section
of the judge’s decision.
(b) Rescind its unlawful suspension of Joseph
Pizzutillo and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against him, with interest computed in the man-
ner set forth in the remedy section of the judge’s deci-
sion.
(c) Remove from its files any reference to their un-
lawful discharges, suspension, or unlawful discipline
and notify the employees in writing that this has been
done and that the discharges, suspension, or discipline
will not be used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Pleasantville, New Jersey place of
business and at each of the hotel-casino dispatch of-
fices in Atlantic City, New Jersey, from which it dis-
patches limousine drivers copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms
provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 4–RC–18132 is
severed from the unfair labor practice cases, that the
election conducted in Case 4–RC–18132 is set aside
and that Case 4–RC–18132 is remanded to the Re-
gional Director for Region 4 for the purpose of con-
ducting another election at such time as he believes
that a representation election can be conducted free
and clear of the effects of intimidation and coercion
found herein.
[Direction of Second Election omitted from publica-
tion.]
MEMBER COHEN, dissenting in part.
Contrary to my colleagues, I agree with the judge
that the Respondent has sustained its burden of show-
ing that driver Joseph Pizzutillo was lawfully sus-
pended for 4 days because of his refusal to accept a
driving assignment.1
My colleagues state that, when Pizzutillo turned
down his assignment at 5:30 p.m. in the afternoon, he
was enforcing a private agreement with the Respond-
ent. Under that agreement, the Respondent promised to
release Pizzutillo by midnight each night in order that
he could be at home by 1 a.m.2 However, there is no
record evidence that Pizzutillo said anything to the dis-
patcher about this agreement or his desire to leave
825ATLANTIC LIMOUSINE, INC.
3 There is no evidence that the Respondent had tolerated similar
misconduct by excusing prior refusals of driving assignments by
Pizzutillo or any other driver. Pizzutillo testified that he himself had
never previously turned down an assignment.
work by midnight. Rather, Pizzutillo simply told the
dispatcher: ‘‘Gary, I’m not taking this assignment. I’m
going home early.’’ Nor did Pizzutillo raise the agree-
ment in his subsequent appeals to Respondent officials.
In sum, the Respondent was confronted with
Pizzutillo’s refusal to perform work, and there was no
claim by Pizzutillo that the refusal was privileged by
an agreement. The dispatcher, understandably irritated,
immediately administered discipline in a measure ap-
propriate to the offense.3
My colleagues argue that Respondent gave varying
reasons for the suspension, and that this variance be-
speaks a discriminatory motive. The argument has no
merit. The fact is that all of the reasons given for the
suspension are ultimately grounded in Pizzutillo’s re-
fusal to perform the assignment. After Pizzutillo re-
fused the assignment, dispatcher Ng immediately in-
formed dispatcher Kell of the refusal. Kell immediately
suspended Pizzutillo. Although Kell did not explicitly
tell Pizzutillo of the reason for the suspension, it was
perfectly obvious that it was based on the conduct that
had just occurred, viz., the refusal to perform the as-
signment.
Pizzutillo appealed the suspension to Geiger and he
upheld it. Geiger told Pizzutillo that he was doing so
because Pizzutillo had thrown a paper at Ng. My col-
leagues cite this as a shifting reason. The fact is that
the paper was thrown as part of the altercation con-
cerning Pizzutillo’s refusal to perform the work.
Geiger testified that he upheld the suspension be-
cause Pizzutillo had harassed personnel at the casino.
Again, this harassment was Pizzutillo’s response to the
assignment that he refused to perform.
In sum, the refusal to perform the assignment was
the root cause of the suspension. Concededly,
Pizzutillo committed other indiscretions in connection
with the refusal, and Respondent took these into ac-
count as well. But these acts, themselves unprotected,
can hardly be used to condemn the suspension as un-
lawful. The simple fact, found by the judge, is that the
refusal to perform the assignment, including the man-
ner of the refusal and the conduct associated therewith,
was the reason for the suspension.
Finally, my colleagues argue that Pizzutillo was
treated differently from others who refused assign-
ments in the past. However, as shown, Pizzutillo did
more than simply refuse a work assignment. He com-
mitted other unprotected acts as well.
In these circumstances, I agree with the judge that
Pizzutillo was suspended for his refusal to perform an
assignment, and not in reprisal for his union activities.
Accordingly, I would dismiss the complaint allegation
that he was disciplined in violation of Section 8(a)(3).
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees con-
cerning their union activities or the union activities of
other employees.
WE WILL NOT threaten employees with layoffs, sub-
contracting of work, or plant closure if they select the
Union as their bargaining representative.
WE WILL NOT promise employees benefits if they
will abandon their union activities.
WE WILL NOT solicit grievances from employees
during an organizing campaign with a view toward ad-
justing the grievances.
WE WILL NOT discourage membership in or activi-
ties on behalf of Teamsters Local Union No. 331, af-
filiated with the International Brotherhood of Team-
sters, AFL–CIO, or any other labor organization, by
discharging employees, denying them work opportuni-
ties, reducing their hours of work, suspending them,
conditioning improvements in wages, hours, or work-
ing conditions upon the abandonment of union activi-
ties, or harassing employees with groundless com-
plaints demanding financial restitution or through pay-
check deductions.
WE WILL NOT discharge or otherwise discriminate
against employees because they have filed charges or
given testimony under the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act. Those
rights include the right to form, join, or assist labor or-
ganizations and to engage in other protected activity
for their mutual aid and benefit.
WE WILL offer full and immediate reinstatement to
Glenn Gerrity, Louis Babich, Henry Purcell, and Vic-
tor Jenkins to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or to other rights and
benefits which they formerly enjoyed, and WE WILL
make them whole for any loss of pay and benefits
which they may have suffered by reason of the dis-
criminations practiced against them, with interest.
WE WILL rescind our unlawful suspension of Joseph
Pizzutillo and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation practiced against him, with interest.
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent admits, and I find, that it is a New Jersey cor-
poration which maintains a facility at Pleasantville, New Jersey,
where it has been engaged in providing limousine service in the At-
lantic City area, principally to patrons of gambling casinos. During
the past year, in the course and conduct of this business, it derived
gross revenues in excess of $500,000 and has provided services val-
ued in excess $50,000 to the Atlantic City hotels and casinos which
are directly engaged in interstate commerce. Accordingly, the Re-
spondent is an employer engaged in interstate commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
2 The principal docket entries in the complaint cases are as fol-
lows:
Charge filed in Case 4–CA–21505 by the Union against the Re-
spondent on March 3, 1993; charge filed in Case 4–CA–21522 by
the Union against the Respondent on March 22, 1993, and amended
on April 19, 1993; consolidated complaint in the aforementioned
cases issued against the Respondent by the Regional Director for Re-
gion 4 on April 19, 1993; Respondent’s answer filed on April 27,
1993; charge filed in Case 4–CA–21697 by the Union against the
Respondent on May 1, 1993; charge filed in Case 4–CA–21740 by
the Union against the Respondent on May 26, 1993; consolidated
complaint including all cases issued against the Respondent by the
Regional Director for Region 4 on July 16, 1993; Respondent’s an-
swer filed on July 21, 1993; amended charge in Case 4–CA–21697
filed by the Union against the Respondent on December 15, 1993;
amended consolidated complaint issued against the Respondent by
the Regional Director for Region 4 on December 17, 1993; Respond-
ent’s answer filed on December 28, 1993; hearing held in Philadel-
phia, Pennsylvania, on January 3–5, 1994; and briefs filed with me
by the General Counsel, the Charging Party, and the Respondent on
or before March 2, 1994.
The principal docket entries in the representation case are as fol-
lows:
Petition filed by the Union in Case 4–RC–18132 on May 26,
1993, seeking an election in a unit of the Respondent’s full-time and
part-time drivers, detailers, and mechanics; Regional Director’s Deci-
sion and Direction of Election issued on July 9, 1993; election held
on August 9, 1993; corrected tally of ballots filed on August 18,
1993; Union’s objections to conduct of election filed on August 19,
1993; and order consolidating objections with complaint case issued
on December 10, 1993.
3 Ideal Electric Co., 134 NLRB 1275 (1961).
4 The General Counsel moved to correct the transcript in certain
particulars. No objection was lodged to the motion so it is granted.
WE WILL remove from our files any references to
unlawful discharges, suspension, or unlawful discipline
given to any employee and notify the employees in
writing that this has been done and that the discharges,
suspension, or discipline will not be used against him
in any way.
ATLANTIC LIMOUSINE, INC.
Steven B. Goldstein, Esq., for the General Counsel.
Julius M. Steiner, Esq. and Steven Steinberg, Esq., for the
Respondent.
Walt DeTreux, Esq., of Philadelphia, Pennsylvania, for the
Charging Party.
DECISION
I. FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on a consolidated unfair
labor practice complaint1 issued by the Regional Director for
Region 4, which alleges that Respondent Atlantic Limousine,
Inc.2 violated Section 8(a)(1), (3), and (4) of the Act. Con-
solidated with the complaint are objections filed by Team-
sters Local Union No. 331, affiliated with the International
Brotherhood of Teamsters, AFL–CIO (the Union) which al-
lege that the Respondent performed acts of coercion and in-
timidation within the Ideal Electric3 period which warrant
setting aside the election that took place on August 9, 1993.
More particularly, the consolidated complaint alleges that
the Respondent solicited employee complaints and grievances
during the period when an organizing drive was in progress
and did so with a view toward adjusting those grievances. It
further alleges that the Respondent promised an employee in-
creased benefits and improved terms and conditions of em-
ployment, including a good job reference, if he would with-
draw an unfair labor practice charge that had been filed on
his behalf; that it interrogated employees concerning their
union activities and the union activities of other employees;
and that it threatened to subcontract work and to close the
business if employees unionized. The consolidated complaint
further alleges that the Respondent harassed certain employ-
ees because they had become active in organizing the Union,
that it discharged employees Glenn Gerrity, Louis Babich,
Henry Purcell, and Victor Jenkins because they had sup-
ported the organizing drive and suspended employee Joseph
Pizzutillo because he had been an outspoken union member.
The consolidated complaint also alleges that the discharges
of Gerrity and Jenkins took place because they had been the
subject of unfair labor practice charges filed on their behalf
or had sought the assistance of the Board in resolving griev-
ances. The independent objection to the election alleges that,
on the day of the election outside the polling place, a super-
visor discouraged an employee from voting by telling him
that the Company had won the election and that it would be
futile for him to vote.
The Respondent denies the commission of any independ-
ent violations of Section 8(a)(1) of the Act and objectionable
conduct and asserts that each of the alleged discriminatees
was discharged or suspended for cause. In the case of Gerrity
the asserted cause was the padding of an expense reimburse-
ment voucher. For Babich, it was an unsafe driving record
resulting in an excessive number of insurance company
chargeable points. In the case of Pizzutillo, the suspension
was for a dispute with a dispatcher and its attendant insubor-
dination. Purcell was assertedly discharged for showing up
late for work without calling in, while Jenkins was assertedly
discharged because he had become a disgruntled employee.
On these contentions the issues here were joined.4
B. The Unfair Labor Practices and Objectionable
Conduct Alleged
1. Background
Since about 1978, the Respondent has operated a luxury
limousine service in Atlantic City, New Jersey. A majority
of its business is devoted to servicing three major casinos—
Trump Castle, Caesar’s, and Showboat. A subsidiary lim-
ousine company called Enchantment, organized and operating
827ATLANTIC LIMOUSINE, INC.
5 Limousines used by the Respondent are rented, not owned. How-
ever, it maintains a garage in suburban Atlantic City where it gasses
and lubricates these vehicles and performs various kinds of first-line
maintenance.
6 There is a dispute between the parties in this case as to whether
dispatchers are supervisors within the meaning of the Act. The dis-
pute was first aired at the representation case hearing which took
place on June 15, 1993. The Respondent insisted that dispatchers be
included in the bargaining unit while the Union contended that they
were statutory supervisors. In his Decision and Direction of Election,
dated July 9, 1993, the Regional Director concluded that dispatchers
were supervisors. In coming to this conclusion, he noted that dis-
patchers were paid either on a salaried basis or at hourly rates great-
ly in excess of the rate received by drivers and have different and
more generous vacation allowances. He noted further that they re-
main at the dispatch desk throughout shifts and only 1 out of 14 dis-
patchers possessed a requisite operator’s license enabling him to
drive a limousine. Personnel decisions are based in part on facts ob-
tained from dispatchers, who are empowered to adjust driver time-
cards and tip allowances. Dispatchers make work assignments, can
grant time off, and are responsible for sending drivers home if they
are unfit to drive. During most of the operating hours of most of
the casinos, the dispatcher is the highest ranking Respondent rep-
resentative on the premises. It also appears that, if the Respondent’s
contention were to prevail, the Respondent would have only 3 or 4
supervisors to manage a work force of 100–110 people located at
several dispersed jobsites. There is nothing in the record in this case
which would warrant disturbing the Regional Director’s determina-
tion. Accordingly, I also conclude that the Respondent’s dispatchers
are supervisors within the meaning of the Act.
7 Daniel’s brother, David, is also an employee of the Company but
he did not figure greatly in the events described in the record.
8 Gerrity was first hired as a driver in January 1992, and worked
out of Caesar’s, the Respondent’s largest customer. During the
month of February, Gerrity lodged a complaint with Daniel, whom
he had come to know well and with whom he had a cordial working
relationship. He told Daniel that full-time drivers were not getting
enough hours because dispatcher David Jr. was giving too much
work to part-timers. Daniel agreed and said he would speak to David
Jr. A few days later, Gerrity complained again, saying that nothing
had been done about his first complaint. Daniel, who was getting
ready to go on vacation, said he would leave a note for David Jr.
under an affirmative action program aimed at stimulating mi-
nority-owned businesses, functions under the Respondent’s
general supervision and services a fourth casino, Resorts
International.
The Respondent is a contractor of the casinos it services.
These contracts are virtually terminable at will. The Re-
spondent is obligated to provide customers of the casino-ho-
tels with limousine service around the clock, 7 days a week.
To fulfill contracts, it has not only a principal business office
7 miles away in Pleasantville, New Jersey, but also maintains
a dispatch desk and drivers’ room at each hotel where drivers
report for work and from which runs are normally assigned.5
The vehicles in question are so-called ‘‘stretch limos’’ which
are equipped with television sets and VCRs. Customers are
typically chauffeured to airports in Philadelphia and New
York but many, regarded by the drivers as ‘‘high rollers,’’
frequently request other destinations, often at much greater
distances. All drivers are required to dress either in tuxedos
or in conservative suits which they must provide at their own
expense. As might be expected, tips form an important part
of a driver’s compensation since each driver’s base wage is
only $2.38 an hour. At the time of the events here in issue,
the Respondent employed about 14 dispatchers and about
100–110 drivers.6
The Respondent is a family-owned and operated concern.
Some 90 percent of its stock is owned by Daniel Geiger,
who is president of the corporation and an active operating
officer. Geiger spends the bulk of each week at the dispatch
offices, principally the office at Trump’s Castle. The general
manager at the Pleasantville office is Daniel’s half-brother,
Leon. Leon’s children—Carl, Louis, and David Jr. are also
employed by the Respondent. Louis is in charge of the serv-
ice facility and David Jr. and Carl are dispatchers.7
2. Events in 1992 and the first half of 1993
Throughout 1992 the Respondent was hearing what it
called rumblings of employee dissatisfaction and interest in
union organization, so it retained labor counsel to advise it
regarding a proper response. There is no question that it op-
poses and has opposed the idea of the unionization of its
work force. Nothing concrete occurred until January 1993
when driver Glenn Gerrity8 happened to chauffeur a pas-
senger who tried to interest him in joining the Teamsters.
The customer put Gerrity in contact with Union Business
Agent Pat Quinn. Quinn gave Gerrity union cards, one of
which he signed on January 12. He then began passing out
other cards to various drivers of his acquaintance, doing so
both in the dispatcher’s office and out on the road.
Among those who received a card from Gerrity was Louis
Babich, who signed one on February 16. Babich had applied
for a job with the Respondent in 1992 but was turned down
when he disclosed that he had 10 points on his driving
record. He applied again in August 1992, and was hired. At
that time, he disclosed to David Jr. that he had eight points.
Notwithstanding this disclosure, he was hired and was told
to go to the Pleasantville office to meet Leon. At that office,
he filled out a new application and was told by Leon not to
fill in the portions thereof relating to his driving record. He
did disclose on the form that, at one time, his license had
been revoked.
Babich was assigned to the Resorts International Hotel,
which was then being serviced by the Respondent. In Octo-
ber, Leon visited the dispatch office and told Babich and pre-
sumably others that the contract with Resorts International
was being given to Enchantment and that they would thence-
forth be working for Enchantment. Babich continued working
for Enchantment until December when he quit to go home
to Mexico for the holidays. When he returned, he applied to
and went to work for the Respondent and was assigned to
drive out of the Showboat, where he continued to work until
he was discharged on February 26.
The State of New Jersey maintains and issues motor vehi-
cle reports (MVRs) listing infractions of the law by holders
of New Jersey licenses. In addition, the Reliance Insurance
Companies, the Respondent’s carrier, acting in conjunction
with a local insurance broker, monitors drivers’ records and
maintains its own motor vehicle record, which includes not
only driving infractions but accident records as well. It as-
signs points to these records, just as the State does, and also
charges drivers points for accidents for which it believes the
driver to be at fault. This process involves an exercise of
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The standard operating procedure followed by the Respondent’s
drivers is to call their dispatcher an hour or so before their expected
reporting time to inquire if work will be available.
10 Louis did not testify in this proceeding.
11 Most trips are paid for by the customer in advance, usually by
credit card. Occasionally, a customer pays the driver in cash at the
completion of a run.
12 The parties agreed that Gerrity, who normally worked 50–55
hours a week and often more, worked 36-1/4 hours during the week
ending February 28 and 27 hours during the week ending March 7.
judgment on its part (or on the part of its local broker or risk
management agent) and often results in discussions between
the Respondent, the driver, and the broker aimed at reducing
the number of insurance company points on a driver’s record
by reevaluating fault for a charged accident. Both the State
MVRs and the insurance company MVRs are ‘‘rolling
records’’ in that points remain on a driver’s record only for
a period of 3 years from the date of infraction or chargeable
accident and then are automatically removed at the expiration
of that time. If a driver has no violations and no accidents
for a 3-year period, his record becomes completely clear, re-
gardless of how many points he might have had at one time.
On or shortly after February 18, Respondent received from
its insurance broker, Ulrich Voorhees Warner Associates, a
document entitled ‘‘Loss Control Advisory.’’ This report is
periodically obtained by the broker from information sup-
plied by DAC Services, a company which has direct com-
puter access to New Jersey motor vehicle files. It was a list
of employee MVR points. Also included were a list of six
drivers, including Gerrity, for whom no records could be
found. One individual, Frank Torres, was listed as having
had his driver’s license suspended. Listed with six or more
points were drivers Letitia Gordon, Joseph Pizzutillo, Rich-
ard Negron, Louis Rivera, Robert Starr, and Louis Babich.
A great many others were listed as having 4–5 points. On
February 25, Kenneth White, Assistant Vice President of
Ulrich Voorhees and the executive in charge of the Respond-
ent’s insurance account, wrote Louis a letter concerning
Negron and Starr, noting that they had six or more points
and that ‘‘Reliance has indicated that an individual with
more than 6 points over a 3 year period should be prohibited
from driving your vehicles.’’ On the following day, he wrote
a letter specifically directed to the fact that the driver’s li-
cense of Torres had been suspended. On the same day he
wrote Louis a letter concerning Babich, indicating that ‘‘this
individual has ‘eight points’ on this evaluation system and
Reliance has indicated that any individual with more than six
points over a three-year period should be prohibited from
driving your vehicles.’’
On February 26, when Babich called his dispatcher at
Showboat to inquire whether he should come to work,9 the
dispatcher transferred the call to David Jr. at Trump’s Castle.
David Jr. told Babich that he had too many MVR points to
drive. Babich said that there must be some mistake and that
the report must have been referring to his son, who had the
same name. David Jr. insisted that there was no mistake and
told Babich he had too many points to work. He referred
Babich to Louis at the garage in Pleasantville. Louis was the
Company’s official who was in charge of Company’s rela-
tions with its insurance company and the local broker.
Babich immediately called Louis, who asked Babich for
police reports concerning his charged accidents. He also re-
ferred Babich to White at the insurance brokerage who, in
the next few days, held several phone conversations with
both Babich and Louis10 concerning this problem. As noted,
this procedure is commonplace between the broker and its
customers and is aimed at adjusting the insurance carrier’s
MVR point list, whenever possible, so as to permit a driver
to continue to work.
As a result of these conversations, the insurance company
or its agent reevaluated Babich’s MVR and removed from
that record a two-point accident which it felt was not his
fault and not properly chargeable. However, it retained one
accident on his MVR, leaving Babich with six points. On
March 3, White again wrote Louis and stated:
After review of the Motor Vehicle Accident Reports
that you sent me, it still appears that Mr. Babich does
not meet the criteria of your insurance carrier. Specifi-
cally, based upon the facts of the accidents, it appears
that one of them still is ‘‘at fault’’ and he still has ‘‘6
points’’ on the evaluation system which would prohibit
him from driving any of your vehicles. Should Mr.
Babich clear up any more points, we would be able to
reconsider his status.
Thus, Babich’s discharge was reaffirmed. However, none
of the other drivers listed in the February 18 loss control ad-
visory with six or more points was discharged. The Union
filed an unfair labor practice charge relating to Babich on
March 22.
In late February or early March, dispatcher David Jr. asked
to see Gerrity’s driver’s license. Gerrity felt that this was a
peculiar request since he and all other driver applicants must
exhibit their drivers’ licenses to the Company when they are
interviewed for a job. (When he was hired, Gerrity presented
his license to Leon, who photostatted it.) Gerrity received a
yearly bonus check for job performance at or about the same
time. The sum of $75 had been deducted. He asked David
Jr. for the reason for the deduction and was told it was for
a cash job. He did not know which job it was. Gerrity pro-
tested the deduction and the amount was later restored.11
During this same period of time, David Jr. claimed that
Gerrity had failed to turn in some movies at the end of a
specially contracted run which he had driven the previous
June or July. Gerrity reminded David Jr. that the incident in
question had resulted in an arrest of himself and underage
passengers who had been drinking and that the films had
been confiscated by the police, along with the Respondent’s
van. At that point the matter was dropped. Gerrity was con-
cerned because his hours had been cut during late Feb-
ruary,12 so he filed the first of several charges in this case,
alleging that he was being harassed because of his union ac-
tivities. The charge was filed on March 5 and was served on
the Respondent on March 10.
Gerrity was discharged on March 10, the day the charge
arrived, because he had assertedly falsified two expense re-
imbursement vouchers in the aggregate of $3. On one vouch-
er, submitted at the end of a run on January 29, he asked
for $4 when the attached receipt showed that he was entitled
to only $3. On another voucher, dated February 8, he asked
for $8 but submitted receipts showing that he was entitled to
only $6. On each occasion he was paid the requested
829ATLANTIC LIMOUSINE, INC.
13 At the beginning of each day, a driver is given a beeper and
three videotaped movies which customers are entitled to watch in the
limousine while they are driven to their destination. These items,
along with the keys to the vehicle, must be returned to the dispatcher
at the end of the workday. Drivers are also required to carry with
them personal funds sufficient to pay tolls, parking fees, and related
charges which they incur during the day. At the end of each day,
they turn in receipts for out-of-pocket expenditures and attach them
to a slip of paper on which they itemize and total their expenses.
At this point the dispatcher reimburses the driver in cash and for-
wards the voucher and the receipts to the main office. There is a
conflict in testimony as to whether dispatchers regularly look at the
receipts to see if they support the voucher before giving cash to the
driver. Some drivers who testified said they do and two company
witnesses said dispatchers do not because they are not obligated to
do so and do not have time to do so. I feel it is incredible that dis-
patchers would disburse company funds without performing a rou-
tine check to see what a driver’s receipts amounted to during a given
day, especially when the task is so routine and perfunctory. (Some
drivers even use an adding machine if the voucher has several en-
tries.) I credit the testimony in the record which establishes that dis-
patchers regularly verify driver-submitted receipts before giving out
reimbursements.
14 The circumstances surrounding Pizzutillo’s discharge are not at
issue in this case, although a temporary suspension given to
Pizzutillo by the Respondent in late April is one of the allegations
in the consolidated complaint.
15 Pizzutillo did not want to take the late afternoon trip to JFK
Airport because he felt that the outbound commuter traffic on the
road leading to the airport would delay his return beyond his normal
quitting time. I credit his testimony that he cares for an invalid at
his home and that, when he was hired, had disclosed this fact to
Leon and possibly to others in the Respondent’s management that
he had to be home at a certain hour each evening in order to care
for her. I further credit his testimony to the effect that the Respond-
ent agreed to this condition when it hired him.
amounts by the dispatcher at the end of the run.13 Early in
March, these vouchers were audited and the errors were dis-
covered. Gerrity had not been given any work at all on
March 7, 8, or 9, although he had called in to see if work
was available. On March 10, he called to see if work was
available and spoke to Daniel, who had just returned from
vacation. Daniel told Gerrity in the course of the phone call
that he had been fired for overcharging the Company $3 on
a Philadelphia Airport run. Gerrity protested, saying he had
not had a Philadelphia run in a long time. Daniel admitted
that the overcharge had occurred some time ago. Gerrity
asked him ‘‘You mean you are accusing me of stealing
$3.00?’’ Daniel said, ‘‘You explain it to me,’’ adding that
he was sorry, but he had to fire him.
On March 15, Gerrity went to Caesar’s to pick up his final
paycheck and spoke with Daniel in the driver’s room at the
casino. I credit Gerrity’s testimony to the effect that, in a pri-
vate conversation, he asked Daniel if Daniel was really firing
him for stealing $3. Daniel admitted that he was not. Gerrity
put the question to Daniel, ‘‘You know I started the Union?’’
Daniel admitted that he knew this was true and also knew
that Gerrity had filed charges against the Company.
Gerrity asked Daniel what he wanted Gerrity to do. Daniel
asked Gerrity to sign what amounted to a withdrawal slip.
Gerrity replied he could not do so because he had ‘‘started
all this’’ for his wife and kids and for the wives and kids
of all the other drivers. Daniel told Gerrity that he had been
doing a fine job, was one of the Company’s best drivers, and
offered to transfer him to the Showboat and give him a good
schedule if he would stay. Gerrity mentioned that he could
not get another job if he had a reference showing that he had
been fired for stealing, so Daniel also offered to give him
a good reference or to give him the hours he wanted if
Gerrity would only withdraw the unfair labor practice charge.
Gerrity again said he could not do so and they parted com-
pany. On April 19, the Union filed another charge against the
Respondent, alleging this time that Gerrity had been dis-
charged in violation of Section 8(a)(1), (3), and (4) of the
Act.
Joseph Pizzutillo worked as a driver out of the Trump
Castle location from September 1992 until he was discharged
on November 7, 1993.14 He learned about the Union from
driver Victor Jenkins and had occasion to discuss the orga-
nizing drive with Babich before Babich was discharged.
Pizzutillo signed an authorization card on February 25.
The Union effort continued into the spring of 1993. One
event it sponsored was a meeting at the Holiday Inn in At-
lantic City which was attended by several drivers, including
Jenkins, and by Local 331 President Joseph Yeoman. After
the meeting, Pizzutillo reported for work at Trump Castle
and was questioned about the event by David Jr. in the pres-
ence of driver Richard Negron. I credit Pizzutillo’s testimony
that David Jr. asked him if he had attended the Union’s
meeting. Pizzutillo replied that he had, whereupon David Jr.
then asked him if there had been a good turnout. At that
point they had a sharp exchange. Pizzutillo told David Jr.
that he was not allowed to ask such a question and that he
(Pizzutillo) was not allowed to answer it. David Jr. allowed
that it was only a simple question but Pizzutillo retorted that
his simple question was against the law. ‘‘What law?’’ David
Jr. asked. ‘‘Federal law,’’ Pizzutillo replied, ‘‘You’re not
even allowed to ask if I attended a Union meeting.’’ With
that remark the conversation ended.
About a week later, Pizzutillo was sent on a late afternoon
dispatch from Trump Castle to Showboat to pick up a Show-
boat customer who wanted to go to Jackson Heights on the
far side of New York City. When he arrived at the Show-
boat, the customer in question was getting in a limousine that
regularly worked out of that casino. Gary Ng, the dispatcher
at Showboat, walked over to Pizzutillo’s limousine, told him
that his assignment had been changed and that he was to take
a customer to JFK Airport on the other side of Long Island
instead. Ng then handed him a document relating to the trip.
I credit Pizzutillo’s testimony that he returned the assignment
sheet to Ng and told him that he was not going to take the
trip.15 He then returned to Trump Castle. In the interim, Ng
had phoned Stan Kell, the dispatcher at Trump Castle, and
had reported to him that Pizzutillo had refused an assign-
ment. When Pizzutillo arrived at his home base, Kell in-
structed him to get his stuff out of the car. He then told
Pizzutillo, ‘‘I think you need some time off. I’m going to
give you four days off.’’ Pizzutillo asked Kell why Kell had
given away a long run to driver Mark Marowitz earlier in
the day, arguing that he would have been able to take a long
run at that time. Kell replied that the decision to give the run
to another driver had been made by David Jr. and he told
him that it was his prerogative to give him 4 days off. As
a result, Pizzutillo missed two scheduled days of work. Later,
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Bennett did not testify. The driver’s log pertaining to Purcell
which was placed into evidence by the Respondent contains so many
internal contradictions and scratchovers that it is worthless as evi-
dence.
17 Like all other drivers, Jenkins had a particular reporting time on
specified days of the week. He worked 6 days a week and on those
days he was supposed to be available to go to work at 7 a.m. He
had a further obligation to call the dispatcher an hour in advance of
his scheduled reporting time to find out if in fact he should report.
Pizzutillo complained to Leon about this action. Leon told
him that he was sustaining the suspension because Pizzutillo
had thrown a paper across a desk at Ng. Pizzutillo denied the
accusation, asserting that he was never even inside the build-
ing at the Showboat. Leon revised his comment to say,
‘‘Well, you were shouting at him.’’
Henry Purcell was hired as a driver in August 1992, and
worked out of the Showboat until he was discharged in late
April 1993. He signed a union card in mid-March and passed
out several cards to other drivers in the dispatch area. Some
time in April, his dispatcher, James Bennett, handed him his
paycheck along with a piece of antiunion literature. Bennett
told Purcell to make sure that he read it.
The document in question, addressed ‘‘Dear Employee,’’
was a 2-1/2 page, double-spaced typewritten letter. It began:
As most of you are aware, an outside organization,
a labor union, is attempting to represent our employees.
We do not believe that joining such an organization
would be in your best interests. Our principal concern
is your loss of individual freedom and the right to
speak for yourself in important matters relating to your
employment.
Unions often attempt to get employees to sign au-
thorization cards without the person really knowing
what he or she is signing. Before signing a union au-
thorization card, you should be aware of its legal sig-
nificance.
The letter went on to discuss the nature of an authorization
card, indicating that a signed card could make an employee
contractually liable to a union and subject to union dues,
fines, assessments, initiation fees, rules, and regulations. It
indicated, among other things, that an authorization card was
revocable and outlined the procedure to be followed in re-
voking one. The letter ended:
The main thing I want you to realize is that the sign-
ing of a card is a very meaningful and binding legal
act, because it assigns your individual rights to the
union. You should not sign a card unless you are will-
ing to accept all the consequences and obligations of
union membership, including union trials, picket duty,
fines, initiation fees, dues, strike fund assessments, and
any other legal obligations which the union might force
upon you.
For many years, through good times and not so good
times, we’ve all worked together. I believe that all of
us at Atlantic Limousine can continue to work together
as a team without the need of a union.
On receiving this document, Purcell told Bennett, ‘‘This is
crazy. Aren’t we supposed to have an interest in protecting
ourselves?’’ Bennett did not reply but simply put his head
down.16
Purcell worked a straight 24-hour shift from about 10 p.m.
on April 23 until approximately the same hour on April 24.
As he left the casino he asked Bennett what time he should
report the following morning. Bennett told him to report at
9 a.m. Purcell told Bennett he was tired and asked if he
could report later. Bennett said he had to have the cars filled
by 9 a.m. but Purcell insisted. Bennett relented, saying, ‘‘Ok,
if you’re too tired. Just come in later.’’
About 9:10 a.m. on April 25, Purcell received a call from
the morning dispatcher, Ng, who reminded him that he was
supposed to report for work at 9 a.m. Purcell informed Ng
that he had worked 24 straight hours the previous day and
had overslept. Ng told him to be in by 10:30 a.m. He then
called back half an hour later and told Purcell not to report
at all. When Purcell asked why not, Ng replied that Carl had
said so. Purcell asked to speak with Carl but was informed
that Carl was not available and that he should speak with
David Jr. When the call was transferred to David Jr., Purcell
repeated the story about working 24 straight hours. David Jr.
said that he was supposed to report in, and that they had
local runs scheduled to go to Pomona, which had to be
farmed out. Purcell repeated that he was tired and that Ben-
nett had told him it would be all right if he came in later.
David Jr. then told Purcell to call back at 4 p.m. when the
cars were back at the casinos from morning runs and he
could go to work at that time.
As instructed, Purcell called Ng at 4 p.m. but was told to
call back when Bennett came in to dispatch later on in the
evening. Purcell did so, telling Bennett that Ng was giving
him a hard time and reminding Bennett that he had said it
would be all right for him to report in late. Bennett disputed
the statement, saying that he had never given Purcell permis-
sion to report late. Purcell did not work that evening.
Purcell came to the casino the following day about noon
to pick up his check and saw a note on the bulletin board
instructing him to ‘‘see Carl.’’ Carl was not present so Pur-
cell phoned him the following day. Carl told Purcell in the
course of their phone call that he did not want to use him
any longer without giving him any reason for the discharge.
On May 24, the Union filed a charge, alleging that Purcell
had been discharged illegally.
Victor Jenkins was a driver who worked out of Trump
Castle. He was hired in January 1992, and was fired on May
31, 1993. On February 7, 1993, he signed a union authoriza-
tion card which he had received from Gerrity. He also passed
out cards to other drivers to seek their support for the Union.
In early February 1993, Jenkins had occasion to discuss the
impact of the organizing drive on the Company with a num-
ber of other drivers. The conversation took place in the im-
mediate presence of dispatcher Ng. One employee voiced a
concern that the union drive would mean the elimination of
annual bonuses. Jenkins replied that the Company could not
do that. The unnamed employee then went on to charge that
the organizing effort would result in sloppy runs and would
possibly cause drivers to be fired. He also asserted that the
drivers were scared. Jenkins replied that they had a constitu-
tional right to organize and that ‘‘we would win the vote.’’
Shortly after the Union held a meeting at the Quality Inn
which was discussed, supra, Jenkins began to lose working
hours. On April 15 he was not given work when he called
in,17 being told by the dispatcher that no car had been as-
831ATLANTIC LIMOUSINE, INC.
If no work was available, he was given the day off, without pay,
but was obligated to call in the next morning to see if work was
available at that time.
signed to him. Jenkins immediately heard from a driver
named James Jones that Jones did not want to go to work
that day so Jenkins again called the dispatcher, Ng, and
asked Ng if he could take Jones’ place. Ng told Jenkins to
call back in an hour. When Jenkins called back, he was told
that no car was available and that there would be no work
for him that day. On Friday, April 16, and again Saturday,
April 17, no work was available although these are tradition-
ally busy days at the casinos. Jenkins was not given any as-
signments on April 22 or 28. On May 6, another date on
which Jenkins was not given an assignment, he asked dis-
patcher Ng why he kept ‘‘putting him off.’’ I credit Jenkins
statement that Ng replied that management had told him to
do so. Ng did not tell Jenkins why he had been given this
instruction.
In early May, Jenkins had another conversation with driv-
ers in the dispatch area in which he was outlining what he
felt were the benefits of unionization. The conversation took
place in the presence of dispatcher Isaiah Stevens. Stevens
interrupted the conversation and told Jenkins that he (Ste-
vens) was management and did not want to hear any more
union talk.
In mid-May, Jenkins requested and received 2 or 3 days
off to attend a custody hearing concerning his children.
When he returned, David Jr. told him that he was placing
him in an ‘‘on call’’ status rather than on a regular driver
status because he had missed several days work in April and
in May. On May 26, the Union filed a petition for a rep-
resentation election. Two days later, Jenkins wrote the Com-
pany a series of two letters which led to his discharge as a
‘‘disgruntled’’ employee.
On May 28, Jenkins wrote to Leon complaining that his
May 25 paycheck had included a copy of an overdue traffic
ticket dating back to October 1992. He claimed that it was
impossible for him to pay the ticket on a wage of $2.38 a
an hour, since child support was being deducted from his
check. He requested several things from the Company—rev-
ocation of his original written agreement to work for $2.38
an hour, backpay from January 1992, payment in accordance
with the minimum wage, and backpay for time that he had
worked for Enchantment Limousine. He also asked the Com-
pany to respond to his request in writing on or before June
5. Copies of the letter were sent to Yeoman at the Union,
to the NLRB field examiner who was investigating pending
charges, and to an official of the wage and hour division of
the Department of Labor. This fact was noted at the bottom
of his letter.
On the following day, Jenkins sent a second letter to the
Company. His second letter featured a complaint against dis-
patcher John Bannegan concerning snide remarks which
Bannegan assertedly was making about him arising out of an
objection which Jenkins had made to a long run which had
been assigned to him. The letter also recited other disputes
with David Jr., noted problems which Jenkins had been expe-
riencing concerning custody of his child which necessitated
taking time off, and the fact that he had been taken off a reg-
ular schedule and had been given ‘‘on call’’ status. The letter
concluded:
It is obvious that Atlantic Limousine is not sensitive to
personal situations. It is also obvious that I am being
undermined and that my livelihood is being sabotaged.
I want it to stop. I want John to be spoken to and I
want Dave to stop saying he has told me things of
which in fact he hasn’t.
A copy of this letter was also sent to Yeoman and to the
Board agent investigating pending charges and this fact was
also noted at the bottom of the letter.
Within hours after the second letter had been turned into
the Company office, David Jr. phoned Jenkins and criticized
him for complaining that he had not been given time off
when in fact he had. David Jr. asked who Yeoman and
O’Neill, the Board agent, were. Jenkins replied that this was
self-explanatory. David Jr. told Jenkins that he should not
have involved outsiders and proceeded to scream at him until
the end of the conversation.
Two days later, Leon called Jenkins at his home and men-
tioned that he had received Jenkins’ memo. Jenkins replied
that, since the Company had written employees a letter urg-
ing them to revoke their authorization cards, he thought that
it would be appropriate for him to write the Company a letter
seeking to revoke the written wage agreement he had made
when he was hired. Leon informed Jenkins at that point that,
since they had a disagreement over wages, the Company was
going to terminate him. Jenkins asked Leon if it would be
possible to withdraw his memo. Leon said no. About 10 days
later, Jenkins sent to the Company a written withdrawal of
his attempted revocation of the original wage agreement.
However, the Company did not respond and Jenkins’ termi-
nation was left undisturbed.
3. Events immediately preceding and during the
election of August 9
I credit the testimony of former driver Roy McAllister
that, two or three days before the election, Bannegan spoke
to him and a couple of other drivers about the election. The
conversation took place at the dispatcher’s desk at Showboat.
Bannegan told the employees who were present to go ahead
and vote for the Union if they wanted to but warned them
that, if the Union won, the Company had nothing to worry
about because it had plenty of drivers and other companies
to fulfill their contract with Showboat. On the Sunday before
the election, Daniel visited the Showboat and had a personal
conversation with McAllister. He told McAllister that he felt
that the Union would be bad for the Company and informed
McAllister that he had to borrow $100,000 to keep the busi-
ness going. He went on to state that, if the Union did come
in, he felt he would have to close the doors.
The election was held at three separate 1-hour sessions on
August 9 at the Quality Inn. Drivers would drive to this loca-
tion, often in company limousines, park in the parking lot,
enter the hotel, go up to the second floor where the polling
place was located, and, after voting, return to their vehicles
and drive away. During the third and last voting session,
Yeoman was standing in the parking lot not far from Leon,
who had been shaking hands and talking with drivers as they
entered or left the hotel. While the third session was still in
progress, an unidentified driver drove into the parking lot in
a company limo and stopped. I credit Yeoman’s testimony
that the driver asked Leon, ‘‘When do I vote?’’ Leon pointed
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 See, for example, Trane Co., 137 NLRB 1506 (1962); American
Telecommunications Corp., 249 NLRB 1135 (1980).
out the polling place but, in a short exchange, told the driver,
‘‘You don’t have to worry about voting. We’re going to win
anyway and we know it.’’ He then suggested to the driver
to drive off and the driver did so.
The Union lost the election by a vote of 50 to 37. Chal-
lenges were not determinative of the outcome. Timely objec-
tions to the conduct of the election were filed by the Union.
C. Analysis and Conclusions
1. Animus and independent violations of Section 8(a)(1)
of the Act
Several of the members of the Geiger family admitted on
the stand that the Company was opposed to the unionization
of the Company. Indeed, when the first rumblings of union-
ization took place, and long before the incidents at issue in
this case occurred, it had retained labor counsel to assist it
in this regard. In evidence is a lengthy letter, written by the
Company to employees in mid-April, urging them not to sign
a union card or to revoke any cards which they may already
have signed, together with detailed instructions as to how to
go about revoking a union authorization card. While none of
these acts have been challenged as illegal, they demonstrate
animus and provide the background against which to evalu-
ate other words and deeds of the Respondent which have
been challenged by the General Counsel.
(a) When, during a final interview, Daniel told Gerrity that
he would arrange for a transfer to a more agreeable location,
would guarantee Gerrity better working hours, and would
provide him with a good job reference if he would withdraw
the pending unfair labor practice charge which had been filed
on his behalf, the Respondent made an unlawful promise of
benefit which violated Section 8(a)(1) of the Act. These ac-
tions also constitute an illegal solicitation of grievances dur-
ing a union campaign with a view toward adjustment in vio-
lation of Section 8(a)(1) of the Act. Because these actions
also conditioned Gerrity’s employment, they constituted a
discouragement in hire or tenure based on union consider-
ations which violated Section 8(a)(3) of the Act.
(b) When, following a union meeting which had been held
at the Holiday Inn, David Jr. interrogated Pizzutillo, who had
attended the meeting, as to whether in fact Pizzutillo had at-
tended and also asked the latter the size of the turnout, the
Respondent engaged in coercive interrogation which violated
Section 8(a)(1) of the Act.
(c) Just before the election in August, Bannegan told sev-
eral employees that if they voted for the Union, the Com-
pany could transfer their jobs to other companies who would
utilize other drivers. This statement constitutes a threat to
discharge in the event of unionization and violated Section
8(a)(1) of the Act. This statement also constituted objection-
able conduct which warrants setting aside the election of Au-
gust 9.
(d) Just before the election, Daniel told McAllister that, if
the Union won the election, the Respondent would probably
close its doors. This is a flagrantly illegal threat which vio-
lated Section 8(a)(1) of the Act and was objectionable con-
duct warranting the setting aside of the election.
2. The Union’s objection relating to Leon’s statement
to an unnamed driver on election day
Following the election and service of the corrected tally of
ballots on August 18, the Charging Party here filed objec-
tions to the conduct of the election. These objections, filed
on August 19, stated:
1. The employer conducted illegal surveillance and
engaged in unlawful campaigning outside the polling
places, creating a coercive atmosphere.
2. The Employer conducted an unlawful poll of em-
ployees on their union sentiments.
3. The Employer used threats, intimidation, and
promises to influence the votes of employees.
In his notice of hearing on objections to an election, the
Regional Director noted that the Charging Party later with-
drew Objections 1 and 2 and a portion of Objection 3. He
then referred to hearing the remaining portion of Objection
3 which read: ‘‘The Employer used threats and intimidation
to influence the votes of employees.’’ Accordingly, I must
view the evidence presented in this regard somewhat nar-
rowly, determining only whether the activities of the Re-
spondent here constituted ‘‘threats and intimidation,’’ not
whether those activities violated wider-ranging Board rules
regarding electioneering at a representation election. See, for
example, General Dynamics Corp., 181 NLRB 784 (1970).
The gist of the credited evidence is that the general man-
ager of the Respondent stood in the parking lot of the hotel
where the election was taking place and, during voting hours,
spoke with an employee whom, I conclude, was a prospec-
tive voter. The prospective voter was driving a company lim-
ousine and had just arrived at the parking lot to vote. The
Respondent’s general manager told the employee in question
that there was no point in voting since the Company already
had enough votes to win the election, whereupon the em-
ployee drove away without voting.
While the general manager made no threats or promises in
his remarks to the employee, he clearly conveyed to the pro-
spective voter the futility of participating in the representa-
tion election and was successful in doing so, since the indi-
vidual in question drove off without accomplishing the pur-
pose which brought him to the hotel in the first place. Since
the Board does not observe the niceties of common law
pleading in determining whether an alleged objection to an
election describes with precision the conduct found to have
occurred, the allegation referred for hearing here is broad
enough to address the conduct found. Seneca Foods Corp.,
244 NLRB 558 (1979).
In other contexts, conveying to employees the idea that en-
gaging in protected or union activity would be futile has
been held to be unlawful interference within the meaning of
Section 8(a)(1) of the Act.18 Even though the thoughts con-
veyed here by the Respondent’s general manager to a pro-
spective voter were not as heavy handed as the messages in-
volved in these cited cases, they still were aimed at discour-
aging protected activity, namely, voting in an election. As
833ATLANTIC LIMOUSINE, INC.
such, his statements were objectionable and warrant the set-
ting aside of the election.
3. The disciplining of Pizzutillo
Pizzutillo was a union activist and was known by the Re-
spondent to be such. As noted above, he was coercively in-
terrogated by a supervisor concerning his attendance at a
union meeting and about the size of the meeting. His re-
sponse was an abrupt one. He flatly told his supervisor that
the latter had no business asking the questions he had been
asking.
Two weeks later, Pizzutillo was assigned to a run late in
the afternoon at a different casino from the one where he
was domiciled. When he arrived to pick up the passenger, he
found that the trip had been given to a different driver and
that he had been assigned to another one. Leaving aside the
embellishments on his behavior which were placed in the
record by Respondent’s witness, it is clear that, on receiving
the substitute assignment, Pizzutillo refused it, returned the
paperwork associated with the assignment to the dispatcher,
and returned to his casino of origin. As soon as he arrived,
he was suspended for 4 days by his own dispatcher for refus-
ing a run. Two of those days were normal workdays. Appar-
ently the other two were scheduled days off.
I credit Pizzutillo’s testimony that, at the time he was
hired, he had an agreement with Leon that he would not be
given assignments which would prevent him from arriving
home by approximately midnight so that he could care for
an invalid who was living with him. Apparently Pizzutillo
felt that this agreement with upper management privileged
him to refuse a run in an abrupt fashion and leave the Re-
spondent in a predicament where it would have difficulty in
fulfilling its casino contract. The punishment which was
meted out was not only modest discipline but was imposed
immediately by his dispatcher, who had just received word
from the other casino about what had happened and who was
understandably irritated. There is no suggestion that suspend-
ing a driver for refusing a run and driving off amounted to
disparate treatment or that the Respondent was lying in wait
for Pizzutillo to make a mistake. I conclude that the Re-
spondent’s asserted reason for suspending Pizzutillo was its
real reason for doing so and that he was not disciplined in
reprisal for his union activities. Accordingly, I will rec-
ommend that so much of the consolidated complaint which
alleges that the Respondent disciplined Pizzutillo in violation
of Section 8(a)(1) and (3) of the Act be dismissed.
4. The discharge of Gerrity
Glenn Gerrity was the initiator of the organizing move-
ment at the Respondent’s company. During their final con-
versation, the president and the owner of the Company ad-
mitted to Gerrity that he had been aware of this fact. Gerrity
signed a union authorization card, passed out cards to other
employees, and urged them to sign. Some of this activity
took place at the dispatch office in the presence of dispatch-
ers.
Late in February, the Respondent began engaging in con-
duct toward Gerrity which he interpreted as harassment on
account of his union activities and in-house leadership. On
or about February 20, the Respondent received a loss control
advisory form from its insurance broker stating, among other
things, that there was no record of Gerrity’s driver’s license
with state authorities. David Jr. asked to see Gerrity’s li-
cense, a request which Gerrity felt was most peculiar since
he and all other drivers exhibited their drivers’ licenses to
Respondent’s management at the time they were hired. What
had apparently happened is that the numbers on Gerrity’s li-
cense had been transposed either by the Respondent or by
the insurance brokers in preparing a written record so that a
request to state authorities for an MVR resulted in a reply
that no license had been issued. With the supplemental infor-
mation obtained as a result of David Jr.’s inquiry, the prob-
lem was cleared up. Accordingly, I would dismiss so much
of the consolidated complaint that alleges that the Respond-
ent was harassing Gerrity in reprisal for his union activities
by checking up on his driver’s license.
Gerrity’s other complaints regarding the Respondent’s ac-
tivities and attitude toward him in late February and early
March 1993 are not so easily resolved. Gerrity’s pay was
docked $75 for a stale charge going back several months that
he assertedly failed to turn in a cash fare which was paid to
him by a customer. When his dispatcher, David Jr., was
pressed by Gerrity for details about the unpaid fare, the dis-
patcher could not respond and ultimately the Company re-
funded the money. David Jr. also told Gerrity that he owed
the Company three videotapes that he had checked out and
had never returned. When Gerrity reminded David Jr. that
the police had confiscated the films when they arrested both
him and the teenage customers he was chauffeuring, David
Jr. changed his mind and told Gerrity to forget about it. In
both instances, the Respondent was reaching back into
Gerrity’s employment history for periods of several months
in order to find a basis for both criticism and a financial im-
position. The fact that the Respondent was directing stale,
petty, and groundless complaints at the known leader of the
Union’s organizing drive within a few weeks after he had
begun the campaign to sign up limousine drivers cannot be
explained on the basis of accidental error and was not ade-
quately explained at all. Accordingly, by directing groundless
complaints calling for financial restitution at Gerrity because
of his membership in and activities on behalf of the Union,
the Respondent here violated Section 8(a)(1) and (3) of the
Act.
The record establishes that Gerrity’s hours were cut in late
February and early March. When he called in for work on
several regularly scheduled days, he was told there was none.
However, the Respondent provided no explanation of why
there was no work for Gerrity on those occasions but work
for other drivers. When a respondent who gives independent
evidence of animus takes such action against the known lead-
er of an organizing drive, does so in the context of other
discriminatorily motivated harassment, and gives no credible
explanation for its actions, it must be concluded that it also
took these actions for discriminatory reasons. Accordingly, I
conclude that, by denying work opportunities to Gerrity in
reprisal for his membership and activities on behalf of the
Union, the Respondent here violated Section 8(a)(1) and (3)
of the Act.
On March 5, the Union filed a charge directed at the al-
leged harassment of Gerrity. His name appeared in the body
of the charge. On the day the charge form arrived at the Re-
spondent’s office, Gerrity was fired. These two simultaneous
actions cannot be attributed to coincidence. The asserted rea-
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 I do not know what success, if any, was enjoyed by the safety
program. The record is clear that none of the requested participants
in this program was discharged because of a poor safety record.
son again involved a reaching back into Gerrity’s employ-
ment history to find justification for a personal action. In this
instance, Gerrity overcharged the Respondent a total of $3
for reimbursement for parking fees incurred during trips
taken in late January and early February. The claim that
these payments, made at the end of each day, went unnoticed
by the dispatchers who paid out Respondent’s cash when
presented with receipts and reimbursement requests is inher-
ently unbelievable. It was not established in the record by the
dispatchers who, in fact, made the payments here in question.
Gerrity did not believe the proffered excuse either and when
he confronted Daniel on or about March 15 with the reason
that had been given him a few days earlier by Daniel, Daniel
admitted that it was not true. When Daniel went on to bar-
gain with Gerrity and offer him reinstatement or other bene-
fits if Gerrity would withdraw the charge, Daniel made it
abundantly clear that the Respondent had discharged Gerrity
because of his union activities and because an unfair labor
practice charge had been filed on his behalf. Such a dis-
charge violates Section 8(a)(1), (3), and (4).
5. The discharge of Louis Babich
Babich was discharged by the Respondent just a few days
before Gerrity. Respondent would have us believe that the
two events were also coincidental. Babich was turned down
for employment in 1992 when he told the Respondent that
he had 10 points on his driving record. In August 1993, he
reapplied and was hired, notwithstanding the fact that he dis-
closed at that time that he had eight points on his record and
also disclosed on his employment application that, at one
time, his license had been revoked. In the fall of 1992 he
was ‘‘reassigned’’ to the Enchantment Limousine, quit to go
to Mexico for Christmas, and was rehired by the Respondent
on its own payroll in January 1993. A few weeks later, he
was discharged by the Respondent for a reason which had
posed no obstacle to his employment in August or to his re-
employment the month before. In the interim between
Babich’s reemployment in January and his discharge on Feb-
ruary 26, a union drive had begun, Babich had signed an au-
thorization card, and he had openly distributed cards to other
employees in the dispatch office.
The fact that Babich had eight points on his MVR was
called to the Respondent’s attention late in February by
White, its insurance broker and risk management agent. Five
other drivers fell into the same category. At Louis’ sugges-
tion and request, Babich got in contact with White and pro-
vided White with police records detailing two of Babich’s
accidents. As a result of this action and a reevaluation of
Babich’s record, his point total was reduced from eight to
six. According to the Respondent and White, this was still
too many points to satisfy the insurance carrier, Reliance, al-
though there is no evidence in the record that Reliance ever
knew of the Babich case or had ever made any comment
about it. In New Jersey, as noted before, a carrier cannot
refuse to insure a fleet of vehicles on the basis of the record
of an individual driver nor condition coverage on the dis-
charge or the transfer from driving status of a named driver.
White testified at the hearing that an informal agreement
between the Respondent and the carrier required the Re-
spondent to remove from its list of drivers anyone having
‘‘six or more’’ points. A letter written by White to Louis on
March 3 pertaining specifically to Babich also stated that
Babich should be prohibited from driving because ‘‘he still
has ‘6 points.’’’ However, two other letters placed in evi-
dence by the Respondent, written by White to Louis on Feb-
ruary 25 with regard to drivers Negron and Starr, stated that
‘‘Reliance has indicated that an individual with more than
six points over a 3 year period should be prohibited from
driving your vehicles.’’ (Emphasis added.) While Babich still
had six points after his record was reevaluated, he did not
have more than six points, the rule applied by White (and
presumably by Reliance) with regard to Negron and Starr.
Babich’s MVR indicates that one of the points still charged
to him arose out of a speeding violation which had occurred
on July 7, 1990. According to the practice both of the insur-
ance carrier and the State of New Jersey, that point would
automatically have been expunged from Babich’s record on
July 7, 1993, after the expiration of 3 years, leaving Babich
at that time with only five points, unless he were to have an-
other chargeable accident or violation within the 4 months
following his February discharge.
None of the other drivers with six or more points whose
records were brought to the Respondent’s attention in late
Feburary by White were either suspended or discharged for
this reason, notwithstanding the insurance company rule. Far
from discharging them, the Respondent retained a safety di-
rector who initiated a safety program aimed at helping them
reduce the points on their records and remain in its em-
ploy.19 In short, the Babich case presents a scenario in which
an employer with demonstrated animus discharges a known
union adherent for reasons which did not preclude his em-
ployment when he was originally hired and rehired but which
made him unacceptable shortly after his union activities
began. The scenario includes not only disparate application
of a supposed standard for continued employment but the ap-
plication of a unique standard (six points versus more than
six points) applicable only to Babich. Accordingly, I con-
clude that Louis Babich was discharged because of his mem-
bership in and activities on behalf of the Union and that the
discharge violated Section 8(a)(1) and (3) of the Act.
6. The discharge of Henry Purcell
Purcell had signed an authorization card, had distributed
cards to other drivers, and had engaged in a small verbal ex-
change with Bennett, his supervisor, in which he clearly dis-
played his union sentiments. Two weeks thereafter, he was
discharged. After working 24 straight hours driving a lim-
ousine over the streets and highways of New Jersey, Purcell
asked Bennett for permission to come in late the following
morning because he was tired. I credit Purcell’s testimony
that such permission was reluctantly given.
The following morning Purcell received a call from an-
other supervisor 10 minutes after his normal starting hour to
ask why he had not reported for work. Purcell replied that
he had received permission from Bennett to sleep late be-
cause of his extraordinary tour of duty the previous day.
However, he volunteered to report for work in an hour and
a half. After checking with his own supervisors, the morning
dispatcher told him not to do so but to call in about 4 p.m.
to see if work was available. When he called, Purcell was
835ATLANTIC LIMOUSINE, INC.
told at 4 p.m. not to report by the same individual, Bennett,
who on the previous evening had extended permission to
come in late. Bennett then denied to Purcell that he had done
so and declined to ask Purcell to come in to work the
evening shift. Two days later, Purcell was fired. No reason
was given to him at the time of the discharge for the action
which was taken, although the Respondent was able to come
up with several reasons for the discharge during the ensuing
months when it disputed Purcell’s claim for unemployment
compensation. These facts make out a solid case of discrimi-
natory treatment applied for a putative infraction of company
rules when the employee in question had advance permission
to do exactly what he was fired for doing. When, despite
permission to sleep late, he offered to come to work anyhow
and was denied such permission, it became abundantly clear
that the Respondent was not at all concerned with Purcell’s
lateness but was merely using it as a pretext for removing
another union adherent from its payroll. Accordingly, I con-
clude that the Respondent discharged Henry Purcell because
of his membership in and sympathies on behalf of the Union
and that the discharge violated Section 8(a)(1) and (3) of the
Act.
7. The discharge of Victor Jenkins
Like the other discriminatees, Victor Jenkins had signed a
union authorization card, had passed out cards to other driv-
ers, and had disclosed his sympathies to management on
more than one occasion by championing the union cause to
other drivers in the presence of dispatchers. He also attended
the union meeting held at the Quality Inn on April 12, a
meeting which the Respondent was aware of and about
which it had expressed more than routine curiosity. Both let-
ters written by Jenkins to management in late May and
which admittedly triggered his discharge contained indica-
tions that he had sent copies to a Board agent and to the
Union. Indeed, he was questioned and criticized by David Jr.
for bringing ‘‘outsiders’’ into his dispute with the Company.
The reason given him for his discharge by Leon was that he
was a ‘‘disgruntled’’ employee, as evidenced by the com-
plaints he voiced in each letter.
Whether or not ‘‘disgruntled’’ has become a term of art
in labor relations like the term ‘‘troublemaker,’’ in this in-
stance it was used by Leon as a code word for voicing com-
plaint concerning wages and working conditions and enlist-
ing the support of the Board and the Union by sending them
copies of the complaint letters. It is clear that Jenkins was
discharged for bringing ‘‘outsiders’’ into his dispute with the
Company and because of that motivation, the Respondent
here violated Section 8(a)(1), (3), and (4) of the Act. I so
find and conclude. Since this discharge fell within the Ideal
Electric period, it constitutes conduct warranting the setting
aside of the August 9 election.
On the foregoing findings of fact and on the entire record
here considered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Atlantic Limousine, Inc. is now and at all
times material has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 331, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discharging Glenn Gerrity and Victor Jenkins be-
cause they were named in an unfair labor practice charge or
otherwise sought redress from the Board, the Respondent
violated Section 8(a)(4) of the Act.
4. By discharging Glenn Gerrity, Victor Jenkins, Henry
Purcell, and Louis Babich because of their membership in
and activities on behalf of the Union; by denying work op-
portunities to Gerrity because of his membership in and ac-
tivities on behalf of the Union; by conditioning reinstate-
ment, transfers to more agreeable work locations, and regular
working hours for Gerrity on the withdrawal of an unfair
practice charge; and by directing groundless complaints in-
volving financial restitution to employees because of their
union membership or union activities, the Respondent vio-
lated Section 8(a)(3) of the Act.
5. By the acts and conduct set forth in Conclusions of Law
3 and 4; by coercively interrogating employees concerning
their union activities and the union activities of other em-
ployees; by threatening employees with layoffs, subcontract-
ing of work, and plant closure if they selected the Union as
their bargaining representative; by promising employees ben-
efits if they would abandon their union activities; and by so-
liciting grievances from employees during an organizing
campaign with a view toward adjusting the grievances, the
Respondent violated Section 8(a)(1) of the Act.
6. By discouraging employees from voting by telling them
that it would be futile to vote because the Company had al-
ready obtained sufficient votes; and by engaging in those acts
and conduct recited above in Conclusions of Law 3, 4, and
5 which took place on or after May 26, 1993, the Respond-
ent committed objectionable conduct warranting the setting
aside of a representation election which was conducted by
the Board among certain of the Respondent’s employees on
August 9, 1993.
7. The aforesaid acts and conduct have a close, intimate,
and adverse effect on the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend to the Board that it
be required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. Since the violations of the Act found
here are serious and pervasive and evidence an attitude on
the part of the Respondent of total disregard for its statutory
obligations and the rights of its employees, I will recommend
a so-called broad 8(a)(1) remedy designed to suppress any
and all violations of that section of the Act. Hickmott Foods,
242 NLRB 1357 (1979). I will recommend that the Board
offer to Glenn Gerrity, Louis Babich, Henry Purcell, and
Victor Jenkins full and immediate reinstatement to their
former or substantially equivalent employment, without prej-
udice to their seniority or to other rights and privileges for-
merly enjoyed by them, and that it make them whole for any
loss of pay or benefits which they may have suffered by rea-
son of the discriminations practiced against them in accord-
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 F. W. Woolworth Co., 90 NLRB 289 (1950).
ance with the Woolworth formula,20 with interest thereon at
the rate prescribed by the Tax Reform Act of 1986. New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). I will also
recommend that the Respondent be required to post the usual
notice informing its employees of their rights and of the re-
sults in this case.
[Recommended Order omitted from publication.]