Birnie Bus Service, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 17, 2006

03-CA-025653 (N.L.R.B. May. 17, 2006)

JD–34-06
Utica, New York

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

BIRNIE BUS SERVICE, INC.

And Case 3-CA-25653

UNITED FOOD AND COMMERCIAL
WORKERS DISTRICT UNION, LOCAL ONE

Alfred Norek, Esq.,
Of Albany, New York
For the General Counsel

Raymond Pascucci, Esq.,
Of Syracuse, New York
For the Respondent

DECISION

Statement of the Case

WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Utica, New
York on March 29, 2006. The original charge was filed by United Food and Commercial
Workers District Union Local One (herein Union) on November 17, 20051. An amended charge
was filed by the Union on December 1, 2005. On January 31, 2006, the Region issued a
Complaint and Notice of Hearing which alleges that Birnie Bus Service, Inc. (Birnie or
Respondent) has engaged in conduct in violation of Section 8(a)(1) of the National Labor
Relations Act (Act). Respondent filed timely answer in which, inter alia, it admits the
jurisdictional allegations of the Complaint and that its Regional Manager, Eric Taylor, has been
at all material times a supervisor of Respondent within the meaning of Section 2(11) of the Act
and an agent of Respondent within the meaning of Section 2(13) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, with a place of business and facility in Utica, New York,
has been engaged in providing school bus transportation service. It annually derives gross
revenue in excess of $250,000 and purchases and receives at the Utica facility goods and
services valued in excess of $10,000 directly from points located outside the State of New York.
The Respondent admits and I find that it is an employer engaged in commerce within the
1 All dates are in 2005 unless otherwise indicated.

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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.

II. Alleged Unfair Labor Practices

The Complaint alleges that on or about the dates below, Respondent, through Eric
Taylor, at the Utica facility:

(a) October 5, 2005, interrogated its employees about whether they had engaged in
union activities.
(b) October, 2005, interrogated an employee about the employee’s union sympathies
and solicited an employee to oppose the Union.
(c) October 18, 2005, interrogated an employee about the employee’s knowledge of
union activities.
(d) October, 2005, promulgated and has since maintained an overly broad rule against
solicitation and distribution.
(e) November 2005, implied that an employee’s Union activity would tend to exclude the
employee from consideration for a position as a confidential employee.

A. Background and Factual Setting For the Complaint Allegations

The facts adduced in this case are skeletal outside a description of the meetings
between management and employees that give rise to the Complaint. Birnie provides school
bus service, as pertinent, in the Utica, New York vicinity from its Utica terminal and office. Eric
Taylor is Birnie’s Regional manger and manager of the terminal. His assistant is Bud Crossman
and as of the time of the events in question, Maureen Ray was the head dispatcher, supervising
two other dispatchers. The Utica facility consists of an office building, maintenance facility, a bus
parking lot and an employee parking lot, all on Birnie’s property. As far as the record reflects,
the office building houses management offices, a dispatch office and a driver’s lounge which
also serves as a lunch and break room for employees.2 At one end of the driver’s lounge is the
dispatch office with a window to the lounge. The driver’s lounge has a door which serves as an
entrance/exit to the bus parking lot. The office building is raised, so there are three or four steps
down from the building to the level of the bus lot.

There is an issue in this case concerning when Respondent’s drivers are on duty within
any given work day. It plays a small part in the “interrogation” section of this decision and a
larger one in the section dealing with Respondent’s distribution and solicitation rule. Not all
drivers have the same hours. Each driver has what is called a “clip time.” Most drivers have a
morning run and an afternoon run. The clip time includes the run time and time allotted for the
driver to conduct a pre-run and post-run bus inspection. This is the time for which the drivers are
paid. As part of the clip time, there is a key time. This is the time a driver is expected to be at
work ready to begin. It is the beginning of the driver’s clip time. A driver having both a morning
and afternoon run would have a clip time for each run.

For example, if a driver had a clip time of 7:00 am, the driver would have to be ready to
go at 7:00 am, conduct the pre-run inspection and leave the facility at 7:15 am. The drivers are
expected to be back at the facility in enough time before the end of their run, in this case
morning run, to complete the post-run inspection before the end of their clip time. Some may
2 Throughout this decision, driver’s lounge will be used to also mean lunch room or break
room.

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finish their run and inspection a little early and still have five or ten minutes on their clip time,
five or ten minutes for which they are paid. The times for runs are not the same as different
schools have different starting and ending times for classes. Thus, clip times are not the same
for all employees, and employees can be entering and leaving the office at the same time.
Some employees coming in are still on clip time, whereas others may be off duty. In between
runs, the drivers are not being paid and are off duty. Between the morning and afternoon runs
most drivers go home though some remain in the driver’s lounge. If a driver is in the driver’s
lounge and clip time begins, the driver exits through the door to the bus parking lot and is on
duty.

In 2005, the Union began a campaign in about September, to represent a unit of
Respondent’s employees including all full time and part time drivers, monitors, and mechanics
employed by Respondent at its Utica facility. Based on GC Ex. 2, the number of employees in
the unit was 155. The campaign kicked off with the mailing in September of a questionnaire for
Respondent’s employees which sought employees’ names, addresses, phone numbers, job
class, years of service and shift. It also sought information about the employees’ current status
with Birnie, and whether the Respondent had kept promises made to the employees during a
previous Union campaign.3 There had been a similar campaign the previous year which had
resulted in an election in January. Respondent’s driver/employee Nicole Cioch was the Union’s
observer in that election.4 The Union lost that election. The 2005 campaign resulted in an
election held in January 2006, which the Union also lost. The vote was 56 for the Union and 72
against the Union, with 11 challenged ballots.5

Cioch, one of the two employees most involved in the events of this case, must be
viewed as a known Union supporter, if by nothing else, her role in the earlier election.
Employee/driver Richard Coromato is the other employee in this case alleged to have been
unlawfully interrogated and, is the only employee alleged to have been solicited to dissuade
other employees from supporting the Union. Whether he can be viewed as a known supporter
of the Union is questionable. The evidence reflects that he stated to management that he was
not in support of the Union, but by its actions, management clearly had suspicions that he did
support it. During the course of the campaign in the fall of 2005, Cioch applied for the job of
night dispatcher and was ultimately not picked for the position. She was thereafter terminated
before the end of the year. She filed charges alleging unlawful discrimination with the Board
over Respondent’s decision not to give her the night dispatcher position and for her termination.
Coromato was terminated in late October and also filed charges with the Board alleging that his
termination was discriminatorily motivated. An investigation was conducted by the Region and
these charges were dismissed. Thus, I must assume that the Region did not find sufficient
evidence of unlawful discrimination in these respects involving Cioch and Coromato to even
issue a Complaint. As a result of Respondent’s actions, however, both Cioch and Coromato
were clearly hostile witnesses in this proceeding. The allegations of unlawful interrogation and
solicitation are based solely on the testimony given by and charges filed by Cioch and
Coromato. The allegation in the Complaint alleging an overly broad rule against solicitation and
distribution is based on the testimony of one employee, Union supporter Jaime Colon.

I believe that what has not been shown is perhaps as important to this decision as what
3 This questionnaire was prepared in June or July by Union organizer Samantha DeRiso.
4 In an affidavit given to the Board in connection with the first campaign and election, Cioch
wrote that no one in management questioned her or threatened her during this campaign.
5 Two votes were cast for a competing union, raising the vote count for unions in general to
58.

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was shown from the evidence adduced. Aside from the incidents involved in this Complaint,
there is no evidence whatsoever of (1)employee harassment by Respondent, (2) an aggressive
anti-Union campaign by Respondent, (3) threats, promises, or surveillance of employees by
Respondent, or (4) warnings, discipline or other adverse personnel actions taken by
Respondent during or as a result of the Union campaign. Other than the events here involved,
the campaign was a virtual non-event insofar as allegations of objectionable conduct or the
commission of unfair labor practices are concerned.

Specific dates for the various meetings or conversations that form the basis for the
Complaint allegations are truly anyone’s guess. In my view, no witness had a firm memory of
when any particular meeting or conversation happened, though all agree to the extent that they
took place at all, they took place in late September or early October. In general, they do agree
about the sequence in which the meetings took place.

B. Did Respondent unlawfully interrogate employees in October?

Richard Coromato was employed by Respondent as a driver from February through
October, when he was terminated. 6 Taylor was his immediate supervisor. Coromato testified
about a conversation he had with Taylor on or about October 11. He testified that the
conversation took place in Taylor’s office and involved only Coromato and Taylor.7 Coromato
testified vaguely that he was in Taylor’s office to present his side to some personnel conflicts
having nothing to do with the Union or the Union campaign. When that conversation ended,
Taylor asked him to stay. Taylor told him that he had been told that Coromato and fellow driver
Nicole Cioch were distributing Union flyers to employees outside the office building door leading
to the bus parking lot. The employees were in the process of going to or coming from bus runs
and were on duty. Taylor asked Coromato if this were true. Coromato denied having any
knowledge about this accusation. He told Taylor that he was not on the Union mailing list and
had not received anything from the Union. On cross examination, Coromato agreed with
Respondent’s counsel that from the outset of the conversations with Taylor, he loudly
proclaimed that was not pro-union. Taylor said he had a witness who saw them. Coromato
denied doing what he was being accused of doing. He asked that he and Cioch be allowed to
confront the witness. Taylor agreed to try to set up a meeting.

On the following day, October 12, Cioch and Coromato met with Taylor in his office.
Cioch testified that she had learned from Coromato that the two of them had been accused of
handing out Union pamphlets at work. Coromato asked for the identity of Taylor’s witness and
Taylor said the person was not coming in and did not feel obligated to do so. Coromato argued
that they had the right to confront their accuser since neither of them had done what they were
accused of doing. Taylor said he could not force the person to come in. Coromato asked Taylor
to take a few days to try to convince the person to come forward. He added that he did not want
to be labeled as Union at that point. Taylor said he would try and the meeting ended.
6 Coromato was terminated for allegedly incorrectly handling a situation involving a student
on his bus. According to Coromato, he was attempting to stop a male student from physically
injuring other students and in the process pulled the boy to the front of the bus. Taylor testified
that Coromato struck the unruly student. The event was caught on videotape. The termination
was the basis of a charge with the Board in November. This charge also alleged the unlawful
interrogation which is involved in this case. The termination part of the charge, as noted above,
was dismissed after investigation by the Region.
7 On cross examination, he admitted that Maureen Ray may have been in attendance at this
meeting, but was not sure.

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There was another meeting called about a week later. This meeting had been requested
by Cioch and Coromato and took place in the Respondent’s training room. In attendance at this
meeting were Taylor, Cioch, Coromato, Ray, and Crossman. Taylor opened the meeting by
saying that he just wanted to get everything straightened out and make sure this was over with,
saying that the accuser was coming. At that point, employee Cheryl Hertel walked in and sat at
the table in the room. The accused asked Hertel the names of employees to whom they were
allegedly giving pamphlets, and asked how she knew they were pamphlets. According to
Coromato, Hertel said that on Cioch’s clipboard, she had seen a white envelope. Cioch
responded that the clipboard did not have Union literature on it. Coromato testified that this was
Cioch’s paycheck. Coromato stated that Taylor had told him that she had seen Coromato and
Cioch passing out pamphlets. According to Coromato, the discussion became heated and
ended with Hertel recanting what she had claimed to have seen. Coromato testified that Hertel
said that two other employees had told her that they had seen the pamphlets being passed out
and Hertel had simply passed this information on to Taylor. According to Cioch, Taylor asked no
questions at this meeting.

Taylor testified about these meetings. Taylor became aware of the new Union organizing
campaign when employee Jaime Colon told him about it in October. As to the reason for the
meetings, Taylor testified that Hertel came to him and told him that Cioch and Coromato were
passing out Union literature. According to Hertel, the two were on the steps leading up the
driver’s lounge talking to employees coming in and out of the building. Hertel also claimed that
Cioch and Coromato were stopping employees on their way to their bus runs. According to
Taylor that concerned him because it was taking away time the drivers were to use to conduct
their pre-trip bus inspection.

Taylor did not remember the first meeting as testified about by Coromato. The first
meeting he remembered on this subject involved both Coromato and Cioch. He remembered
being at the meeting were himself, Coromato, Cioch, Ray and Crossman. Taylor called in Cioch
and Coromato asked whether they were passing out Union literature telling them an employee
had complained they were stopping employees from going to their buses. Both said no and
denied they were passing out anything. Coromato became upset and wanted to know who was
accusing them. Taylor said he would speak with that person. According to Taylor, this was all
that happened at this meeting.

Maureen Ray remembers this meeting being attended by herself Taylor, Cioch and
Coromato. She testified that Taylor asked the two employees if they were passing out union
literature and stopping drivers from going to their buses. Ray testified that both employees were
upset. According to Ray, Coromato said he wanted nothing to do with the Union and wanted to
know the identity of his accuser. Ray testified that Cioch said that she and Coromato were
discussing a charter. Ray testified that Taylor apologized and said he would look into the matter.
Ray testified that she was asked to be in this meeting by Cioch and Coromato.

Following this meeting, Taylor talked to Hertel and she agreed to meet with Cioch and
Coromato. Another meeting was set and was held in the training room. In attendance were
Taylor, Ray, Crossman, Hertel, Coromato and Cioch. According to Taylor, Hertel said that she
was concerned that Coromato and Cioch were passing out Union literature at the entrance to
the driver’s lounge. Coromato denied the accusation and was upset that she was accusing him.
Taylor testified that after the meeting he thought the matter was settled as they had talked it out.
Hertel apologized and said she must have been mistaken. According to Taylor, Cioch said the
clipboard contained her bus charter slip. Taylor said that they never looked at what was
supposedly being passed out nor did he ask Cioch or Coromato for anything. According to

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Taylor, Hertel was given a warning about this incident. No one questioned this assertion at the
hearing and I take it as fact.

On or about October 22, Cioch had another meeting with Taylor. Also present for this
meeting was another driver, Paul Zogby. They had asked for the meeting to find out why
Coromato had been terminated. At the outset of the meeting, Taylor asked his two employees if
they were handing out Union pamphlets. They told Taylor they were not there to discuss the
Union, but to discuss Coromato’s termination.

Taylor’s version of this meeting varied from Cioch’s version. According to Taylor, Cioch
and Zogby asked why Coromato had been terminated and Taylor said he could not disclose that
information as it was confidential personnel information. They then asked to speak with
Respondent’s Vice President John Warren. According to Taylor, nothing about the Union came
up in the conversation which he said lasted about five minutes. Taylor denied raising anything
about the Union in this conversation and he stated that neither Zogby nor Cioch raised anything
about the Union. I credit Taylor’s version of this meeting. There is no rational reason Taylor
would ask Zogby and Cioch if they were passing out Union literature. Neither Cioch nor the
Union filed any charge over unlawful behavior by the Respondent until after she was
discharged. I believe her testimony about this meeting is not credible. Thus, I find that the
subject of the Union did not come up in this meeting.

As summarized in Medicare Associates, Inc., 330 NLRB 935, 939-940 (2000):

…the applicable test for determining whether the questioning of an employee
constitutes an unlawful interrogation is the totality-of-the circumstances adopted by the
Board in Rossmore House, 269 NLRB 1176 (1984), aff’’d sub nom., Hotel Employees Union
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and adhered to by the Board for the past
15 years. We also agree that in analyzing alleged interrogations under the Rossmore House
test, it is appropriate to consider what have come to be known as the “Bourne Factors,” so
named because they were first set out in Bourne v. NLRB, 332 F2d. 47, 48 (2d Cir. 1964).
Those factors are:

(1) The background, i.e., is there a history of employer hostility and discrimination?

(2) The nature of the information sought, e.g. did the interrogator appear to be seeking
information on which to base taking action against individual employees?

(3) The identity of the questioner, i.e. how high was he in the Company hierarchy?

(4) Place and method of the interrogation, e.g., was the employee called from work to the
boss’s office?

(5) Truthfulness of the reply.

…[W]e note that these and other relevant factors “are not to be mechanically
applied in each case.” 269 NLRB at 1178 fn. 20. As the D.C. Circuit Court of Appeals
has similarly noted, determining whether employee questioning violates the Act does not
require “strict evaluation of each factor; instead, “[t]he flexibility and deliberately broad
focus of this test make clear that the Bourne criteria are not prerequisites to a finding of
coercive questioning, but rather useful indicia that serve as a starting point for assessing
the “totality of the circumstances.’” Perdue Farms, Inc. v. NLRB, 144 F3d. 830, 850 (D.C.
Cir. 1998), quoting Timsco, Inc. v. NLRB, 890 F2d. 1173, 1178 (D.C. Cir. 1978). In the

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final analysis, our task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising rights protected by
Section 7 of the Act.”

Looking at the facts of this case from with the Bourne Factors in mind, first, there
is no history of employer hostility and discrimination. As I noted at the outset of this
decision, other than the incidents raised herein, there was no showing of any of the
indicia of a hostile campaign by Respondent and no showing of any incidence of
employee intimidation or threats. Thus the first, and as far as I can see, the rest of the
meetings took place absent any atmosphere of reprisal.

With respect to the second factor, Taylor was seeking information that, as far as
the evidence shows, would have led in the worst case scenario to Coromato and Cioch
being told to stop passing out literature to employees on duty. There was nothing in
anyone’s testimony about Taylor’s demeanor that would indicate that he was looking for
a reason to discipline the employees involved and indeed, neither of them testified that
they feared retaliation in or as a result of the meetings. If Respondent were motivated by
anti-union animus, it certainly took an unusual step as a result of the interrogations. It
warned the accuser Hertel for wrongly accusing the other employees.

With respect to the third and fourth factors, Taylor is the highest ranking person
at the facility with only Crossman below him on the Utica hierarchy. Coromato and Cioch
testified that Taylor is their direct supervisor, so he would be the logical person to speak
with them about any problem with their job. Indeed, Cioch testified about coming to
Taylor in September to speak with him about a personal situation with someone in the
dispatch office. Coromato was in Taylor’s office at Coromato’s request on a personal
matter, when Taylor first interrogated him about the matter in question. According to
Coromato every other meeting was at the request of himself or at the request of both he
and Cioch.

With respect to the last factor, both Cioch and Coromato denied doing what they
were accused of and Taylor accepted the denials, warning Hertel for making false
accusations.

In conclusion, I do not find the interrogations to be unlawful. It is clear that
Respondent does not allow solicitation of employees on duty. As far as this record is
concerned, that applies to all solicitations, not just Union ones. Taylor had a legitimate
interest in determining if solicitations of on-duty employees was happening as had been
reported to him. I cannot envision a less chilling way to go about finding the answer to
that question than the way he chose. Based on the foregoing, I recommend dismissal of
this portion of the Complaint.

C. Did Respondent unlawfully solicit an employee to dissuade other employees from
supporting the Union?

According to Coromato, a few days after the last “interrogation” meeting, he again met
with Taylor. Coromato testified that this meeting was between only him and Taylor. Coromato
told Taylor that he was not satisfied with the outcome of the prior meeting. According to
Coromato, Taylor then turned the meeting to the Union, saying that the Union “costs too much
for these people to afford and that it was $24 a paycheck (and) that the people can’t afford that.”
On cross examination, Coromato testified that he told Taylor that he did not agree with that

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assertion based on his past experience as a union steward with the New York Corrections
Department. Coromato said it would be more like $6 a week. Coromato testified that
Correction’s employees make more money than bus drivers. Coromato testified that Taylor was
“asking him to go out and try to dissuade these people to confer or talk to the Union or consider
the Union. Coromato said that he would not do that nor would he tell them to join the Union.
Taylor asked if he would vote for the Union, and Coromato replied he would make that decision
when he had all of the information in front of him.

Taylor remembered a conversation with Coromato to about some of the topics
mentioned by Coromato. He believed the conversation took place in the driver’s lounge. Taylor
does not remember exactly how the conversation started, just remembering that Coromato
stated that he had worked for the Department of Corrections and was a part of a union.8
According to Taylor, they then had a general discussion “of our employees about they can’t
afford to have a union. Taylor testified that Coromato said that he made good money then and
was involved with the union. According to Taylor, Coromato said that it (a union) would not do
any good for these (Bernie’s employees) because they really could not afford it. Taylor testified
that Coromato initiated this part of the conversation. Prior to this conversation, Taylor was
unaware that Coromato had been in a union.

Taylor denied asking Coromato whether he had been a member of the Union in his prior
employment, whether he had paid union dues in that position, or whether he thought the dues
were too high. Taylor denied asking Coromato whether his co-workers at Birnie’s could afford
union dues and vigorously denied asking Coromato to talk with his co-workers about anything
having to do with the Union. Taylor denied at any time asking Coromato to campaign against
the Union. He denied asking Coromato about his opinion about the level of dues the Union
would charge at Respondent.

Coromato testified that he had another conversation with Taylor on October 18. This
conversation took place in the Respondent’s bus parking lot. Coromato was parking his bus and
Taylor was parking his bus. Taylor left his bus and walked over to Coromato and assisted him in
parking as another bus had to be moved. When the parking was complete, Taylor asked him
how he was feeling with things. Coromato said he was still not satisfied, he felt he was being
labeled. Taylor then asked him a question about the Union. Coromato told him he was not
involved and would not get involved with talking to any of the employees about the Union, for or
against, until he had all the information. He added he had received no information from the
Union.

Taylor denied ever having a conversation with Coromato in the bus parking lot.

Carefully considering the testimony of both men and their demeanor, I credit Taylor’s
testimony and denial of Coromato’s allegations. Coromato has made an “out of the blue”
accusation that finds support from no other witness or any other action taken by Respondent. It
appears totally out of character for Taylor, and for that matter the Respondent, given the almost
“squeaky clean” campaign that Respondent waged. Having credited Taylor’s testimony over
that of Coromato in this regard, I find that Respondent has not unlawfully interrogated an
employee about the employee’s union sympathies nor has it unlawfully solicited an employee to
oppose the union. I will recommend that these Complaint allegations be dismissed.
8 At a later point in his testimony, Taylor remembered this topic came up because
Coromato had just finished a charter trip with some older children and they had been bad on the
bus. It reminded Coromato of his days with the Department of Corrections.

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D. Did Respondent unlawfully imply that an employee’s Union activity would tend to
exclude the employee from consideration for a position as a confidential employee?

Nicole Cioch was employed as a monitor or driver by Birnie from September 9, 2004
until her termination in late November. In early November, three employees applied for the
position of night dispatcher, Nicole Cioch, Jennifer Johnson and Deana Dorfman. Johnson
received the position. According to Taylor, Johnson received the position because she was a
part-time dispatcher for about a year and a half.

Cioch testified about this application process from her perspective. She was interviewed
for this position in a meeting with Taylor, Ray and Crossman. According to Cioch, Taylor
brought up the fact that the dispatcher was a confidential position and Respondent was worried
if they put a Union supporter in that position, that confidential information such as employees'
addresses and phone numbers would be leaked to the Union. Cioch told Taylor that
confidentiality would not be a problem. Cioch did not get the dispatchers job. Cioch agreed that
the person who got the job had more experience, as that employee had dispatched during the
day. Cioch filed a charge over the failure of Respondent to give her the job, claiming it was
retaliation because Cioch was pro-union. She testified that she was upset with the Company.
This claim was dismissed by the Region.

Taylor testified that there were two interviews with Cioch about the position. At the first
interview, Cioch was interviewed by Ray and Crossman. Taylor did not attend this interview.
The first interview was intended to screen the three applicants for a second interview. Dorfman
did not get a second interview, as did Cioch and Johnson. Ray testified that she and Crossman
were impressed by both Cioch and Johnson and both received a second interview.

At the second interview, Taylor, Ray, Crossman and Cioch were present. They talked
about various scenarios that might arise in the position. Then the subject shifted to the
confidential nature of the position. It is confidential because the dispatcher has employee phone
numbers, addresses, payroll information, hours worked and other personal information. He
pointed out that this information could not be given out, something he told each applicant for the
job. According to Taylor, Cioch raised the issue of her unlisted telephone number being given to
the Union. She did not think that was right. Taylor responded that the Company was checking to
see how many employees’ phone numbers had been given out. He testified that was all that
was said about the matter.

Ray testified that when the subject of confidentiality came up, Cioch became upset
because her phone number had been given out to the Union by another dispatcher. According
to Ray, Cioch said that dispatch had already handed out her phone number. Cioch asked how
the office has to be confidential when it is not confidential. Ray testified that Taylor apologized
and that he was in the middle of taking care of the situation. Ray testified that Cioch mentioned
the Union. Ray denied that Taylor said anything about the Union.

I credit the testimony of Ray and Taylor over the testimony of Cioch about this meeting.
Not only was Cioch admittedly hostile to the Company, her behavior on the stand fully supports
the testimony of Taylor and Ray and undercuts her own testimony. When the matter of this
meeting was discussed on cross examination with Cioch, she launched into a tirade about the
actions of a person in the dispatch office giving out damaging personal information about her.
Cioch had had an earlier meeting with Taylor about her concerns that someone in the dispatch
office was using her personal information to cause her personal difficulties, unrelated to work.
Cioch denied this subject came up in the interview session. I simply do not believe this. I do

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believe Ray and Taylor and based on their credited testimony, can find no evidence that they
implied that Cioch’s Union activity would tend to exclude her from consideration for a
confidential position.

E. Did Respondent promulgate and thereafter maintain an overly broad rule against
solicitation and distribution?

Jaime Colon has been a driver for Birnie for five years. Like most drivers, Colon has a
break between his morning and afternoon runs of about three hours. Colon testified that he
usually goes home for this break. He is familiar with the driver’s lounge and testified that some
drivers stay there during their break. Colon testified that a lot of selling goes on in the driver’s
lounge, including Girl Scout cookies and raffle tickets. Cioch testified that in the driver’s lounge,
employees sell candles, Avon, and raffle tickets. Coromato testified that in the driver’s lounge
employees sold Avon, candles and magazines to other employees. He was unaware of any
prohibitions on employees distributing materials among themselves in the break room.

In mid October, Colon had a conversation with Taylor in the break room between 1:15
pm and 1:30 pm. Colon was passing out Union authorization cards. Taylor came from his office
and according to Colon told him that he did not want Colon passing out the cards to the
employees. Colon testified that he had put the cards away before Taylor approached him and
he believed that Taylor was acting on information provided by someone else and had not seen
him pass out the cards. Colon testified that Taylor never told him he was free to distribute the
cards to employees in non-work areas on non work time. Taylor never told him he was free to
distribute the cards in the break room during a break.

Colon denied having a conversation with Taylor about stopping employees on the way to
their bus runs. He denied distributing Union calendars in the break room, noting that he did not
have any calendars to distribute. He denied handing out the union questionnaire in the bus
parking lot. He denied having seen the Union questionnaire mailed in September. Though Colon
gave straight answers on direct examination, on cross examination, he was extremely evasive
and many of his answers did not ring true.

Taylor testified that he was aware that Colon was passing out Union calendars. Taylor
testified that an employee told him that Colon was bothering people in the break room,
presumably by passing out authorization cards. Taylor testified that he “kind of whispered to him
in his ear and said not to pass it out while people are trying to go out to their runs and come
back in.” On cross examination, this changed slightly to “not to bother anyone who is coming in
or out.” Taylor also mentioned cards or flyers in this whisper. To the extent there is a conflict
between what Colon testified that Taylor told him and what Taylor testified that he said, I credit
Taylor’s version.

Taylor testified that Colon had passed out literature in the employee parking lot and he
had no problem with that. Taylor testified that passing out literature in the break room was no
problem so long as the employees being solicited were not trying to leave for their runs or come
back in. Taylor noted that Colon had also passed out literature in the break room. Taylor
testified that employees had told him that as had Colon himself. Taylor testified that he told
Colon not to bother drivers coming from and going to runs because they are on work time.

Taylor testified that he did nothing to stop the passing of authorization cards in the
driver’s lounge. He testified that Union calendars and Union questionnaires were also passed
out there. The questionnaires were also passed out in the employee parking lot. The
Respondent took no action to stop these practices. Cioch, certainly no friend of the Respondent

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on the day she testified, testified that no one from management ever told her she could not hand
out literature in the driver’s lounge. This was never an issue with her. She agreed that
distributing Union literature in the driver’s lounge was never an issue.

General Counsel on brief first cites cases holding that policies prohibiting union
solicitations on employer premises are presumptively invalid and that selectively enforcing such
rules only against union solicitations is unlawful. There is no showing that there was any
prohibition by Respondent of solicitation and distribution of Union material on Company
property. Even Cioch agreed that distributing Union literature in the driver’s lounge was never a
problem. Distribution of Union material and Union solicitations in the employee parking lot was
allowed. The question is, was it unlawful for Taylor, however so gently, to prohibit Colon from
passing out authorization cards to persons entering and leaving the lounge, presumably on clip
time. I do not believe it is sufficient to establish that Respondent did not prohibit the sale or
distribution of non-Union items such as raffle tickets in the lounge, to establish that
Respondent’s prohibition as worded to Colon was unlawful. The is no showing that employees
tried to sell Avon, raffle tickets or girl scout cookies to drivers coming from and going to a bus
run. The union does not have the right to solicit or make distributions to employees while they
are working. There is no proof whatsoever that Respondent allowed any solicitation of
employees for any non-work related reason while they were on duty. I believe that is the sum
and substance of what Taylor told Colon. Thus, I can find no selective application of
Respondent’s rule against solicitation and distribution. According, I find that Respondent did not
unlawfully promulgate an overly broad rule against solicitation and distribution.

Conclusions of Law

1. Respondent, Birnie Bus Service, Inc, is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.

2. United Food and Commercial Workers District Union, Local One is a labor
organization within the meaning of Section 2(5) of the Act.

3. Respondent did not commit any of the unfair labor practices alleged in the
Complaint.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9

ORDER
The complaint is dismissed.

Dated, Washington, D.C., May 17, 2006

____________________
Wallace H. Nations
Administrative Law Judge
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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