Cook Dupage Transportation Company

National Labor Relations Board - Administrative Judge Opinions

Feb 12, 2009

13-CA-044649 (N.L.R.B. Feb. 12, 2009)

JD-07-09
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COOK DUPAGE TRANSPORTATION COMPANY
and Case Nos. 13−CA−44649
13−CA−44861
AMALGAMATED TRANSIT UNION, LOCAL 1028, AFL-CIO
Charles J. Muhl, Esq.
of Chicago, IL, for the General Counsel.
Leonard R. Kofkin and Donald J. Vogel, Esqs.
(Scopelitis, Garvin, Light, Hanson & Feary),
of Chicago, IL, for the Respondent.
Robert S. Cervone, Esq.
(Dowd, Bloch and Bennett),
of Chicago, IL, for the Charging Party Union.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge. This case was tried in Chicago,
Illinois on December 15, 2008. The complaint alleges that Respondent violated Section 8(a) (5)
and (1) of the Act by laying off or terminating some 40 employees and by eliminating its past
practice of placing unit employees who missed an excessive number of workdays on “standby”
status and instead laying off or terminating them, without giving the Charging Party Union prior
notice and affording the Union an opportunity to bargain about the above decisions and the
effects of those decisions. The complaint also alleges that Respondent violated Section 8(a)(5)
and (1) of the Act by failing and refusing to provide the Union with related information, which
was necessary for and relevant to the Union’s responsibilities as the exclusive bargaining
representative of Respondent’s unit employees. The Respondent filed an answer denying the
essential allegations in the complaint.
After the trial, the General Counsel and the Respondent filed briefs, which I have read
and considered. Based on the entire record in this case, including the testimony of the
witnesses, and my observation of their demeanor, I make the following:
Findings of Fact
I. Jurisdiction
Respondent, a corporation with an office and a place of business located in Chicago,
Illinois, provides transit and para-transit services. During a representative one-year period,
Respondent derived gross revenues in excess of $250,000, and purchased and received, at its
Chicago facility, products, goods and materials valued in excess of $5,000 directly from points
outside the state of Illinois. Accordingly, I find, as admitted, that Respondent is an employer
engaged in commerce with the meaning of Section 2(2), (6), and (7) of the Act.
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The Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Background
Respondent transports disabled people, mostly within the City of Chicago, pursuant to
contracts with the Regional Transportation Authority (RTA), a governmental agency, or its
constituent service boards, including the Chicago Transit Authority (CTA) and PACE. In
carrying out its contractual responsibilities, Respondent employs between 400 and 500 drivers.
Tr. 97-98, 36-37.
Respondent’s most recent contract to transport disabled people was with PACE and it
was executed on December 14, 2007. Tr. 104. PACE, which had operated the suburban para-
transit operation, apparently took over all such operations throughout the Chicago area,
including within the city. For a contractor such as Respondent, which had previously operated
within the city, under contracts with the CTA, this presaged significant changes. Those
changes, however, were reflected in PACE’s solicitation of bids for the work, which was issued
in early 2007. Respondent submitted a bid under the new solicitation and won a portion of the
total contract. Two of the major changes in the bid solicitation were the addition of more
transportation contractors and restrictions in the covered geographic area for each contractor.
Prior to the new contract, a disabled person could use any one of three contractors, regardless
of where he lived. The new contract provided that each contractor would operate in a particular
geographic zone; Respondent’s zone is the central zone, within the City of Chicago. Tr. 105-
107. Because of these changes, five contractors provided the same service that previously had
been provided by three. Thus, the 2007 PACE contract reduced the volume of business for the
three previous contractors, including Respondent. Tr. 107-108.
The new PACE contract also provided that the contractors were to be paid by the hour
rather than by the trip. It provided that the contractors would dispatch their drivers under a new
computerized system called Trapeze. Under that system, a customer calls a PACE telephone
number the day before his trip giving the starting and ending times and locations of the trip.
That information is then provided to Respondent by computer, in a way that generates a
schedule for each vehicle used by Respondent. Each vehicle has a monitor reflecting the pick-
ups and drop-offs for each driver. Tr. 54-55,108-109. PACE had used Trapeze in its suburban
para-transit operation and wanted to use it in the city. Tr. 109. The implementation of Trapeze,
as well as the other changes mentioned above, were incorporated into the solicitation of bids so
that Respondent and the other bidding contractors knew of the changes when they bid on the
work in early 2007. Tr. 107-109. Indeed, Respondent’s vice-president and part owner, Tim
Jans, knew, at this point, that the PACE changes would potentially result in less business for
Respondent and, consequently, the need for fewer drivers. Tr. 128-129.
The PACE contract went into effect on March 29, 2008. Prior to implementation of the
new contract with PACE, Respondent utilized drivers to run assigned regular shifts, with peak
volume in the morning rush hours and again in the afternoon rush hours. For at least some five
or six years, Respondent had an existing practice that also utilized drivers for a standby shift.
Those drivers, who had previously been full time regular drivers, reported either at 7:15 am or
2:45 pm, and filled in, as needed, if drivers were unable to drive their regular shifts. The
standby drivers who were not utilized as regular shift drivers were paid for one hour of work and
sent home. Tr. 100-103. The list of standby drivers varied from zero to eight or more. Tr. 103.
The standby driver program acted in a way as a disciplinary policy for regular drivers who had
chronic attendance problems. According to Respondent’s vice-president and part owner, Tim
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Jans, drivers were placed on the standby schedule because of their “horrendous attendance,
and to save their job and to give the company a little flexibility.” Tr. 100. If a driver placed on
standby improved his attendance, he could be reinstated to a regular driver’s schedule; if he did
not, he was terminated. As more fully explained below, except for reference to the standby
driver program, there is no record evidence that drivers were terminated for excessive
absenteeism.
B. Respondent’s Bargaining with the Union
Respondent’s drivers had apparently been represented by the Union’s predecessor for a
number of years until, at some point, they chose not to be represented. Sometime in 2006, after
a Board election, the Union was certified as the bargaining representative of the drivers; and the
Respondent and the Union commenced bargaining for a collective bargaining agreement in
October 2006. Since then, the parties have met numerous times, but, at the time of the trial, the
parties had not succeeded in reaching an agreement. The main negotiators were Tim Jans for
the Respondent and Attorney Robert Cervone for the Union.
By February 9, 2007, the parties had reached a number of tentative agreements (Tr. 40),
including a provision governing layoffs, which were to be implemented at least in part based on
seniority (Tr. 58, 111). Another tentative agreement was Article Eighteen, which dealt with
“bidding for shifts, work schedules, extra work opportunities and standby.”1 The language with
respect to use of standby drivers ameliorated the definition of excessive absenteeism previously
relied upon by Respondent to place drivers on standby and included the Union’s proposal that
approved leave and vacations would not count as occurrences in determining excessive
absenteeism. The language also included the Union’s proposal that the standby drivers be
given two hours’ pay, rather the existing one hour’s pay, if they were not given a regular route.
Tr. 43. At some point before the parties reached a tentative agreement on standby drivers, the
Respondent expressed an interest in eliminating the practice of utilizing standby drivers, but the
Union rejected that proposal (Tr. 49). On October 30, 2007, the Union called a brief strike (Tr.
50), after which all tentative agreements were rescinded. Still later, according to Union Attorney
Robert Cervone, the tentative agreements of February 7, 2007 were reinstated, including the
provision and language dealing with standby drivers. Tr. 81-83. Jans agreed that most
tentative agreements were reinstated, but testified that some were not, including Article
Eighteen. Tr. 114.
On March 3, 2008, the parties again discussed attendance. The Respondent suggested
a contract provision on attendance similar to that the Union had in another contract with a
competitor of Respondent. That provision provided guidelines for dealing with attendance
problems, including a progressive discipline procedure ultimately resulting in termination.
Cervone took the Respondent’s proposal under advisement, but there was no agreement on the
matter. Cervone said that the Union might be agreeable to such a proposal “in the context of an
overall contract.” Tr. 52. See GCX 2, Tr. 50-53.
The parties next met on March 21, 2008. According to Jans’ bargaining notes, on that
occasion, the parties spent about an hour “going over new PACE contract changes.” RX 1.
According to those notes, the parties also discussed representation of non-drivers who would be
operating the Trapeze computer system and the discharge of an employee who had filed an

1 The provision was identified in the record as General Counsel’s Exhibit 1 and appears in
the exhibit list immediately after the formal papers, which were also identified as General
Counsel’s Exhibit 1.
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NLRB charge. RX 1. This was not the first time the parties had discussed the Trapeze system.
It had been discussed in bargaining sessions as early as July 2007. Tr. 55. At that point, the
new bid solicitation process with PACE had been initiated and publicized, and, during the
course of bargaining, the parties had discussed that Respondent’s geographical territory would
be diminished, which could result in a reduction of business, and, in turn, a reduction in
Respondent’s workforce. Tr. 59.
The next bargaining session took place on April 11, 2008, about two weeks after the
PACE contract went into effect. At that meeting, the parties again discussed the Trapeze
system, which had already apparently been implemented. Jans mentioned problems
Respondent had had in implementing the system. He wanted to change drivers’ schedules so
that they better reflected the decrease in peak activity in the morning and evening hours and
more realistically reflected trips that took place in the middle of the day. Tr. 55. Cervone
reminded Jans that the parties had tentatively agreed upon a procedure for drivers’ schedules
based on seniority and bidding. But the parties discussed possible changes, including use of
the bidding procedure used in the Union’s contract with one of Respondent’s competitors. The
parties did not reach an agreement on that issue. Tr. 55-56.
The parties then moved on to the issue of attendance, including use of attendance in
placing drivers on standby. Tr. 56. Jans suggested eliminating the standby driver provision that
had earlier been tentatively agreed upon and again mentioned handling attendance problems in
the way they were handled in the Union’s contract with Respondent’s competitor. Cervone
repeated his earlier view that the Union would probably agree with that suggestion, but it was
not ready to do so at this time. Tr. 56. The parties also discussed productivity from a
disciplinary standpoint, which had also been the subject of an earlier tentative agreement. Jans
said that that provision was no longer necessary because implementation of the Trapeze
system, which provided that all drivers had a manifest of trips in their vehicle, removed
productivity as an issue. The parties reached no agreement on this issue. Thereafter, the
Respondent made a new wage proposal, which the Union took under advisement.
Toward the end of the April 11 meeting, Jans said that he was going to have to reduce
his vehicle load from 250 to 200, and, that as a result, he was going to be laying off or
terminating drivers. He did not mention the number of drivers that would be affected, but said
he was going to choose the drivers he was going to release based on their attendance.
Cervone reminded Jans that the parties had a tentative agreement on how to handle layoffs,
based on seniority, but, if Respondent was not going to follow that agreement, the Union wanted
to bargain over the decision and the effects of the decision, including the basis of the selection
process. Tr. 57-58. Jans did not respond, but indicated he had to leave the meeting. Cervone
and the other union negotiators then caucused separately to discuss the matters Jans had
raised at this meeting. After the caucus, Cervone called Jans and told him that the Union
wanted to bargain over the proposed changes in schedules but that he needed some
information, such as the current schedules and what changes were proposed both long term
and short term. Tr. 59-60. Cervone also objected to any layoffs or terminations and repeated
that the Union wanted to bargain over the decision and its effects, as well as the selection of the
drivers who were to be released. He also asked for information on that issue, including the
names of the drivers Jans was proposing to release, a seniority roster, and the attendance
records for all employees. Tr. 61. Later that same day, Cervone followed up his telephone
conversation with an e-mail to Jans confirming the Union’s positions on bargaining and on the
information requests. GCX 3. 2

2 The above is based primarily on the testimony of Union counsel Cervone, whose testimony
Continued
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C. The Layoffs, Elimination of the Standby Driver Program and Other Meetings
In separate fax messages from April 14 through April 21, 2008, Respondent notified the
Union that it had terminated 40 employees in accordance with Jans’ notification to the Union at
the April 11 bargaining session. GCX 4. The fax messages listed the employees that it had
terminated, along with the number of days each had “missed” since January 1, 2007. Those
employees were indeed terminated and notified separately that they had been “discharged” for
“unsatisfactory attendance.” GCX 12. As I have indicated above, I found Jans’s testimony
about the reasons for the release of the 40 employees generally unreliable. I find, in
accordance with Respondent’s position statements, which described the personnel actions of
April 2008 as reductions in force, with Jans’ reluctant acknowledgement later in his testimony,
and with the entire record in this case, that the reason for the personnel actions was
Respondent’s loss of business due to the new PACE contract, particularly the reduction of the
number of contractors performing the services involved and the resultant decrease in the need
for drivers. I find therefore that the personnel actions of April 2008 were not discharges for
cause. Indeed, both Respondent’s failure to contest the unemployment applications of the laid
off employees and its subsequent recall of them a little over two months later because,
according to Jans, it needed more drivers confirm that these employees were not discharged for
cause. I find instead that Respondent used a two step procedure to cut its work force in April of
2008. First, it decided it needed fewer drivers for economic reasons; and then, it decided to
select both the number of, and the particular, drivers it would release, unilaterally, based on
which of the drivers had the worst absenteeism records. I find therefore that the personnel
actions of April 2008 were economically based layoffs, terminations or reductions in force.
In late April and in early May, Cervone made follow-up requests for the information that
he had earlier requested from Jans. GCX 5 and 6. In one e-mail exchange, Jans indicated that
drivers’ schedules had not changed “except for a few volunteers,” and that it was not yet clear
what the permanent schedules would be. He also indicated that he had sent Cervone “the
names of the drivers that I laid off” and stated that Respondent had “no further plans to lay off
any other drivers at this time.” GCX 6.
_________________________
was more reliable and detailed than that of Jans, the only other witness. Cervone’s testimony
is substantially in accord with that of Jans and consistent with all three sets of notes taken of the
crucial April 11 bargaining session—one by Jans, one by Cervone, and one by another union
representative. The main point of disagreement between Cervone and Jans is whether Jans
used the term layoff, as Cervone testified, or the term discharge or fire, as Jans testified. As
discussed more fully elsewhere in this decision, I do not believe the terminology used to
describe the personnel actions that followed the April 11 meeting, including the exact words
used in the meeting, is determinative. It is likely that each participant testified as to what they
thought they said or heard. But I found Jans generally to be an unreliable witness, in contrast to
my assessment of Cervone as a witness. It seemed to me, based on my assessment of his
demeanor, that Jans was primed to avoid using the term layoff because he thought,
erroneously, by the way, that avoiding using the term would aid him in advancing his legal
position. He was quite evasive in initially insisting that he fired 40 drivers for cause in April of
2008, and only reluctantly conceded later in his testimony that the decision was basically
motivated by economic considerations, as reflected in the position statements provided by
Respondent in connection with the investigation of this case. Tr. 112, 129-130, GXC 8 and 10.
Finally, as shown in footnote 4 below, I also found Jans’ testimony inconsistent or unreliable on
other matters, such as why he recalled the drivers and why he did not contest their
unemployment compensation applications.
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The parties met again on June 11 and on July 22, but were unable to reach agreement.
At the June 11 meeting, Cervone asked whether any of the laid off drivers had been recalled.
Jans said they were not laid off, but were fired for poor attendance. Tr. 68. According to
Cervone’s uncontradicted testimony, Jans also said that he had eliminated the standby driver
program and terminated everyone who was on standby when he terminated the other drivers
the month before. Tr. 69. According to Jans, there were about five drivers on standby in April
of 2008 and they were among the 40 drivers terminated at that time. Tr. 103-104.3
As set forth above, prior to Respondent’s elimination of the standby driver program,
Respondent had used the program effectively to discipline regular drivers with an excessive
number of absences. Indeed, in response to the General Counsel’s subpoena, Respondent
provided documents that were introduced into evidence, showing that employees with excessive
absenteeism were placed on standby status for a period of 30 days. If, during that period, the
driver missed “any days”, he would be terminated; and, if his attendance improved, he could be
reinstated to a regular work schedule. GCX 11, Tr. 123. Another set of documents, also
provided pursuant to subpoena and admitted into evidence, shows that the Respondent’s
terminations for attendance over a period of years had nothing to do with the number of days of
work missed; they dealt primarily with job abandonment. Nothing in those terminations
indicated whether the drivers were on standby when they were terminated. Tr. 125-126, GCX
13.
On July 3, 2008, Respondent sent letters to the laid off drivers offering them immediate
reinstatement to their former positions. GCX 7. Some 10 to 15 employees apparently
accepted those offers. Tr. 74. According to Jans, at some point after the April 2008
terminations, Respondent needed more drivers; too many drivers had been terminated in April.
Tr. 115, 118. Jans testified that Respondent could not hire new drivers because it was more
difficult to get new drivers with the driving credentials required by PACE than to recall the
terminated drivers who already had those credentials. Tr. 118-119. Later, in response to
questions from his attorney, Jans testified that the July 3 reinstatement offers were sent, at the
behest of Respondent’s lawyer, in order to toll back pay. Tr. 121-122, 160.4
At the July 22 meeting, Jans provided Cervone with a sample of the July 3 letter that
was sent to the laid off drivers offering them reinstatement. Also included with that letter was a
list of the laid off drivers and their status at the time, as well as a list of the schedules for the
reinstated drivers. GCX 7. This was apparently in response to Cervone’s inquiry as to whether
Jans had any additional information that the Union had requested. Tr. 75. After a brief
discussion, during which Cervone protested that he would like to have been involved in the
recall procedure, he was assured by Jans that no existing drivers would be displaced by the
returning drivers. Tr. 74.

3 In response to one of my questions, Jans said he had not used the standby driver system
since April of 2008 because there was “no practical way of using it.” Tr. 118. I took that to be
an effective admission that Jans eliminated the standby driver program. He had no standby
drivers to use because he had terminated them all. Jans said nothing about how he would
handle excessive absenteeism among the regular drivers in the future. He had, of course,
terminated the 40 drivers with the worst absenteeism records as of April of 2008.
4 Jans’ inconsistent testimony about the reasons for recalling the laid off employees is
another indication of his unreliability as a witness. I also found unreliable his self-serving
explanation of why he did not contest the unemployment applications of the employees, whom
he allegedly discharged for cause. See Tr. 159-160.
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D. Response to the Union’s Information Requests
Except as indicated above, the Respondent did not respond to the Union’s information
requests. According to Cervone’s uncontradicted testimony, the only information the
Respondent provided was a list of the laid off employees and a seniority roster. The Union did
not receive a list of the current schedules of all drivers or what the new schedules would be; an
explanation of how the schedules were to be adjusted; or the attendance records of all the
drivers. Tr. 76-79. Jans admitted that he did not provide any of this information. Tr. 141-142.
III. Discussion and Analysis
It is well settled that an employer violates Section 8(a)(5) and (1) of the Act by
unilaterally changing the wages, hours and other terms and conditions of employment of
represented employees—mandatory subjects of bargaining—without first providing their
bargaining representative with notice and a meaningful opportunity to bargain about the change.
NLRB v. Katz, 369 U.S. 736 (1962). Mandatory subjects of bargaining include those matters
that are “plainly germane to the ‘working environment’” and “not among those ‘managerial
decisions, which lie at the core of entrepreneurial control.’” Ford Motor Co. v. NLRB, 441 U.S.
488, 498 (1979). The decision to lay off employees for economic reasons is clearly a
mandatory subject of bargaining. Thus, absent extraordinary situations involving “compelling
economic circumstances,” an employer must provide notice to and bargain with the union
representing its employees concerning both the layoff decision and the effects of that decision.
Lapeer Foundry & Machine, Inc., 289 NLRB 952, 954-955 (1988), citing numerous authorities,
including NLRB v. Advertisers Mfg. Co., 823 F.2d 1086 (7th Cir. 1987). See also Tri-Tech
Services, 340 NLRB 894, 895 (2003); and Pan American Grain Co., 351 NLRB 1412 (2007).
Indeed, contrary to Respondent’s position,5 “termination of employment” has long been
considered a mandatory subject of bargaining. N.K. Parker Transport, Inc., 332 NLRB 547, 551
(2000), citing Ryder Distribution Resources, 302 NLRB 76, 90 (1991), which involved failure to
bargain over the discharge of employees.
In addition, where, as here, the General Counsel shows that an employer made a
material and substantial change in a term of employment without negotiating with the union, the
burden is on the employer to show that such a unilateral change was in some way privileged.
Pan American Grain, above, 351 NLRB at 1414, fn. 9. Indeed, where, as here, the parties are
in negotiations, an employer’s obligation goes beyond simply giving notice and an opportunity to
bargain over mandatory subjects; absent “economic exigencies,” it “encompasses a duty to
refrain from implementation at all, unless and until an overall impasse has been reached on
bargaining for the agreement as a whole.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
No one contends there was an overall impasse in this case.
It is clear on this record that the terminations or layoffs in April 2008 were, whatever their
characterization, economically based and thus mandatory subjects of bargaining under the
Board’s Lapeer rationale. They were actuated by a need for Respondent to reduce its business
and cut the number of its drivers, thus implicating a decision that turned on labor costs. 6 The

5 The parties spent an inordinate portion of their briefs dwelling on whether the terminations
were layoffs or discharges. As I have indicated, the terminology used to describe the
terminations is not significant.
6 Respondent contends that its need to reduce employees did not turn on labor costs
because the decision did not have anything to do with wage levels or benefit costs (Br. 27). The
contention defies reason. Terminations or layoffs of employees wipe out the entire labor cost
Continued
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Respondent’s terminations also included the drivers on standby status. The Respondent’s
purported need to rid itself of employees turned out to be ephemeral in any event because just
over 2 months later, according to Jans, it needed additional drivers and it asked the laid off
drivers to return. Some did. Yet Respondent did not give the Union the opportunity to have
input not only on the purported need to release drivers, but how it was done. Both the Board in
Lapeer and the Seventh Circuit in Advertisers Mfg. have confirmed that such decisions and their
effects are uniquely subjects for bargaining, particularly where, as here, they turn on labor costs.
In this case, Respondent terminated the employees unilaterally, denying the Union’s request to
bargain about both its decision to terminate and the effects of that decision. It decided to cut
some 40 drivers based on which drivers had the greatest number of missed days in the last year
and a half. It thus precluded the drivers’ bargaining agent from questioning the number of
drivers chosen to be laid off, the number of missed days that would be determinative and indeed
whether those days were excused absences or not. Moreover, the Respondent precluded any
inquiry as to whether another standard, such as seniority, could be used in determining who
would be released. These are traditional bargaining issues. Although Respondent gave the
Union prior notice of its intent to release employees, it refused the Union’s request to bargain on
that issue, presenting the Union with a fait accompli and arrogating to itself the standards to be
used in releasing employees.
The Respondent also unilaterally eliminated the standby driver program, which it had
used in the past to discipline and rehabilitate regular drivers who had problems with excessive
absenteeism. Apart from that program, it had never before precipitously terminated or
otherwise disciplined drivers for excessive absenteeism. On this issue, Respondent did not
even give the Union advance notice; it simply announced that it was ending the program. The
elimination of the standby program not only resulted in the termination of drivers in the program,
but it ended Respondent’s past practice—the benign treatment of those drivers with excessive
absenteeism. There can be no doubt that elimination of the program changed the terms and
conditions of employment of all employees, not just those who were terminated. In this respect,
the standby driver program was effectively a disciplinary system for excessive absenteeism.
The Respondent’s refusal to bargain on the standby driver program precluded the Union from
exploring opportunities as to how to handle excessive absenteeism. The continuation of the
standby driver program, especially as it affected how excessive absenteeism was defined and
treated, was thus a separate mandatory subject of bargaining. It is well established that an
employer’s disciplinary system constitutes a term of employment that is a mandatory subject of
bargaining. Toledo Blade Co., 343 NLRB 385, 387 (2004). 7
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associated with their employment.
7 Respondent inexplicably denies in its brief (Br. 31-33) that it eliminated the standby driver
program. Cervone’s uncontradicted testimony clearly shows the contrary—Jans told Cervone at
the June 11 meeting that he had eliminated the program. Jans effectively admitted as much (Tr.
117-118). To the extent that Respondent argues that elimination of the standby driver program
was accomplished by Pace or some other entity outside of Respondent’s control, the argument
is without merit. Respondent submitted no evidence that the new PACE contract called for the
elimination of the standby driver program or mandated the treatment of excessive absenteeism
in any way. In any event, Respondent’s concern that its operations could no longer tolerate the
standby driver program is no excuse for unilateral action, particularly since the program
basically provided a disciplinary solution to the problem of excessive absenteeism.
Respondent’s elimination of the program changed past practice and resulted in Respondent
arrogating to itself the treatment of excessive absenteeism. Respondent’s elimination of the
standby driver program also implicated other bargainable issues—the use of overtime and
possible recall of laid-off employees to fill unexpected needs. Almost immediately after the
Continued
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Significantly, Respondent implemented its decisions to lay off or terminate employees
based on excessive absenteeism and to eliminate the standby driver program, essentially a
disciplinary system for absenteeism, unilaterally, even though it was in the midst of negotiations.
Indeed, the parties had bargained, sometimes with tentative agreements, on the very matters
unilaterally implemented by Respondent—layoffs, discipline of employees, and standby driver
status.
Because there is no doubt that Respondent undertook unilateral action and refused to
bargain with the Union on the layoffs or terminations and elimination of the standby driver
program, and because those subjects were mandatory subjects of bargaining, it falls to
Respondent to prove that its unilateral actions were somehow privileged. Respondent’s
defense is basically two-fold: The decisions involved were entrepreneurial or managerial and
thus not bargainable; and the unilateral actions were required and not bargainable because of
exigent or extraordinary circumstances. Neither argument is persuasive.8
Respondent’s entrepreneurial or managerial argument is based on its reading of First
National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). In that case, the Supreme Court
held that an employer did not have to bargain about its decision to terminate its maintenance
contract with a nursing home because of a dispute over the size of the maintenance fee the
nursing home was to pay the employer. As a result, the employer terminated its entire union-
represented work force at the nursing home. Even though the decision clearly impacted the
jobs of the union-represented employees, the union had no control or authority over the
maintenance fee that caused the employer to cut its relationship with the nursing home. The
Court thus concluded that the management decision involved in that case was not amenable to
the bargaining process. This case is wholly different, as shown by the Board’s analysis in
Lapeer, which barely mentioned First National Maintenance, a case decided seven years before
Lapeer. Unlike First National Maintenance, where the employer’s decision to cut its relationship
with the nursing home resulted in the loss of employment of all of the employees working there,
the Respondent’s decision to terminate some, but not all, of its employees, was not compelled
by the loss of a contract. Respondent actually won the PACE contract. It knew when it bid on
the new contract that it would have less business than it had before the contract, but it made a
decision that it nevertheless wanted that contract. But that loss of business was not the type of
discrete event that would have amounted even to a partial closing. The layoff of 40 employees
involved, at most, 10 percent of Respondent’s workforce. Even its initial decision to lay off 40
employees was reversed when Respondent decided it needed more drivers. But both of these
decisions—the initial layoff and the subsequent recall of drivers—were made in the context of
the new contract. Here, unlike in First National Maintenance, the Union is not asking to bargain
over a decision to continue in business; it is asking to bargain over decisions to lay off
employees and to eliminate a disciplinary system governing excess absenteeism.
Respondent keys on the following quote from First National Maintenance (452 U.S. at
676-677), after the Court discusses two types of management decisions that are clearly
bargainable:
_________________________
elimination of the standby driver program, Respondent had need for more drivers. According to
Jans, until he reinstated some drivers in July 2008, he was using full time drivers who were
getting “overtime in the short-term.” Tr. 115.
8 Respondent concedes that it is required to bargain over the effects of at least the decision
to terminate the 40 employees (Br. 36).
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The present case concerns a third type of management decision, one that had a
direct impact on employment, since jobs were inexorably eliminated by the termination
[of the contract with the nursing home], but had as it focus only the economic profitability
of the contract . . . , a concern wholly apart from the employment relationship. This
decision, involving a change in the scope and direction of the enterprise, is akin to the
decision whether to be in business at all, “not in [itself] primarily about conditions of
employment, though the effect of the decision may be necessary to terminate
employment.” [citation omitted]
The Respondent also quotes extensively from another portion of the decision, where the
Court speaks of the employer’s freedom to make some management decisions without
bargaining, ending with the following (452 U.S. at 678-679):
Nonetheless, in view of an employer’s need for unencumbered decision making,
bargaining over management decisions that have a substantial impact on the
continued availability of employment should be required only if the benefit, for
labor-management relations and the collective bargaining process, outweighs the
burden placed on the conduct of the business.
Respondent has cited no cases that have applied the above quoted principles of First
National Maintenance to find no bargaining obligation in circumstances that in any way
approach the facts in this case. In fact, outside of First National Maintenance itself, Respondent
has cited no cases at all on the matter. Unlike First National Maintenance, this case—which
involves the termination of employees and elimination of a standby driver program assertedly
because of excessive absenteeism—does not amount to a change in the scope and direction of
Respondent’s business. Nor does conversion to the Trapeze system, required by the new
PACE contract, to the extent relevant at all to the decisions to terminate employees and
eliminate the standby driver program, amount to a change in the scope and direction of its
business. Trapeze is simply a new dispatch system. Respondent continues, as before, to
transport disabled people under a contract with a government entity. It also continues to
transport people by utilizing busses and drivers. And its need for fewer drivers—essentially, an
economic decision based on its desire to reduce labor costs—was nevertheless suddenly
reversed when, as Jans admitted, it needed more drivers shortly after unilaterally deciding to
terminate or lay off 40 of them. Moreover, the layoff or termination decision, as well as the
decision to eliminate the standby driver program, was clearly amenable to the bargaining
process. As discussed above, Respondent’s refusal to bargain precluded the Union from
discussing other alternatives to the ones unilaterally made by the Respondent. Indeed, the
parties had bargained over those very subjects earlier in these very negotiations. Thus, the
benefits of bargaining over the layoffs and the standby driver program clearly outweigh the
supposed burdens on the employer. See Winchell Co., 315 NLRB 526 (1994), enf’d 74 F.3d
1227 (3rd Cir. 1995); Holmes & Narver, 309 NLRB 146, 147 (1992); Mid-State Ready Mix, 307
NLRB 809, 810 (1992), cases cited by the General Counsel as examples of decisions like those
herein that were found bargainable, despite contentions that they were solely management
prerogatives and not amenable to bargaining.
I also reject any contention that exigent or extraordinary circumstances justified
Respondent’s unilateral actions. Respondent knew when it bid on the new PACE contract that it
would suffer a loss of business. It also knew that the new Trapeze computer system would
require a different kind of dispatch process. Yet it took no action until about a year later when it
precipitously terminated employees, something it had never done before for excessive
absenteeism, except in the context of the unilaterally eliminated standby driver program. Here
again, Respondent cited no cases in support of its position. But the General Counsel has cited
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several showing that the narrow and limited exception that would excuse bargaining over
otherwise mandatory subjects applies only to “extraordinary events which are ‘an unforeseen
occurrence, having a major economic effect [requiring the employer] to take immediate action.’”
Alpha Associates, 344 NLRB 782, 785 (2005). As the Board stated in Alpha Associates,
“Absent a dire financial emergency, the Board has held that economic events such as the loss
of significant accounts or contracts, operation at a competitive advantage, or supply shortages
do not justify unilateral action.” Ibid, citing from RBE Electronics, 320 NLRB 80, 81 (1995).
Nothing in Respondent’s decisions to terminate drivers for excessive absenteeism and to end its
standby driver program even remotely qualifies under the Board’s limited exception permitting
unilateral action.
In these circumstances, I find that the Respondent violated Section 8(a) (5) and (1) of
the Act by unilaterally laying off or terminating 40 employees in April 2008 and eliminating the
standby driver program. The Respondent violated the Act by refusing to bargain over the
decisions in this respect and their effects.
In its brief, Respondent does not contest the allegation that it failed adequately to
provide information to the Union relevant to it bargaining concerns. Respondent thus failed to
provide a list of the current schedule of all drivers or what the new schedules would be; an
explanation of how the schedules were to be adjusted; or the attendance record of all the
drivers. Such failure amounted to a separate violation of Section 8(a)(5) and (1) of the Act.
Conclusions of Law
1. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally laying off or
terminating 40 employees in April 2008 and eliminating its standby driver program and refusing
to bargain with the Union over those decisions and their effects.
2. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
provide the following information requested by the Union that is necessary and relevant to its
obligation to bargain on behalf of the employees it represents: A list of drivers and their current
and proposed schedules; an explanation of how the schedules are adjusted; and the attendance
records of all its drivers.
3. The above violations are unfair labor practices affecting commerce within the
meaning of the Act.
Remedy
Having found that Respondent violated the Act in certain respects, I shall
recommend that it cease and desist from engaging in such violations, take affirmative action to
remedy them, and post an appropriate notice. The Respondent will be ordered to bargain with
the Union concerning the decisions to lay off or terminate employees and to eliminate the
standby driver program, as well as the effects of those decisions. The Respondent will also be
ordered to reinstate the unilaterally eliminated standby driver program, which operated as a
disciplinary procedure for excessive absenteeism. In addition, the Respondent will be ordered
to reinstate the laid off or terminated employees and make them whole for any losses they may
have suffered, in accordance with Lapeer Foundry & Machine, 289 NLRB 952, 955-956 (1988).9

9 It appears that Respondent made reinstatement offers to the laid off or terminated
employees in July 2008. I make no judgment concerning whether those offers were valid or
Continued
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On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended:10
ORDER
The Respondent, Cook Dupage Transportation Company, its officers, agents,
successors and assigns shall:
1. Cease and desist from
(a) Refusing to recognize or refuse to bargain with the Union as the exclusive bargaining
representative of the employees in the following appropriate unit:
All full-time and regular part time drivers employed by the Respondent at its
facility currently located at 1200 W. Fulton, Chicago, Illinois, but excluding all
clerical employees, professional employees, salesmen, guards, and
supervisors as defined in the Act.
(b) Unilaterally laying off or terminating employees and eliminating its standby driver
program without providing the Union with notice and opportunity to bargain about the decisions
to lay off or terminate employees and to eliminate the standby driver program, and the effects of
those decisions.
(c) Refusing to provide the following information requested by the Union that is
necessary and relevant to its obligation to bargain on behalf of the employees it represents: A
list of drivers and their current and proposed schedules; an explanation of how the schedules
are adjusted; and the attendance records of all its drivers.
(d) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of rights guaranteed them by the Act.
2. Take the following affirmative action necessary for effectuate the policies of the Act
(a) Recognize and, on request, bargain with the Union as the exclusive bargaining
representative of the employees in the above-described unit with respect to rates of pay, wages,
and other terms and conditions of employment, and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) On request, bargain with the Union concerning the decision to lay off or terminate
employees in April 2008 and the decision to eliminate the standby driver program, and the
effects of those decisions.
(c) Reinstate the standby driver program that was unlawfully eliminated.
_________________________
operated to toll any backpay owing to the employees. Those issues may be raised in the
compliance phase of this case.
10 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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(d) Reinstate and make whole those employees laid off in April 2008, for any loss of pay
or other employment benefits suffered as a result of its unlawful conduct in the manner set forth
in the remedy portion of this decision.
(e) Furnish to the Union in a timely manner the following information requested by it: A
list of drivers and their current and proposed schedules; an explanation of how the schedules
are adjusted; and the attendance records of all its drivers.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay and other moneys due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in Chicago, Illinois,
copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by
the Regional Director for Region 13 after being signed by Respondent’s authorized
representative, shall be posted by Respondent 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 Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
April 11, 2008.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., February 12, 2009.
____________________
Robert A. Giannasi
Administrative Law Judge

11 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.”
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Chicago, IL
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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to recognize or refuse to bargain with the Union as the exclusive
bargaining representative of the employees in the following appropriate unit
All full-time and regular part time drivers employed by the Respondent at its
facility currently located at 1200 W. Fulton, Chicago, Illinois, but excluding all
clerical employees, professional employees, salesmen, guards, and
supervisors as defined in the Act.
WE WILL NOT unilaterally lay off or terminate employees and eliminate our standby driver
program without providing the Union with notice and opportunity to bargain about the decisions
to lay off or terminate employees and to eliminate the standby driver program, and the effects of
those decisions.
WE WILL NOT refuse to provide the following information requested by the Union that is
necessary and relevant to its obligation to bargain on behalf of the employees it represents: A
list of drivers and their current and proposed schedules; an explanation of how the schedules
are adjusted; and the attendance records of all of our drivers.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in
the exercise of rights guaranteed them by the Act.
WE WILL recognize and, on request, bargain with the Union as the exclusive bargaining
representative of the employees in the above-described unit with respect to rates of pay, wages,
and other terms and conditions of employment, and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, on request, bargain with the Union concerning the decision to lay off or terminate
employees and the decision to eliminate the standby driver program, and the
effects of those decisions.
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Chicago, IL
WE WILL reinstate the standby driver program, which we unlawfully eliminated.
WE WILL reinstate and make whole those employees laid off in April 2008, for any loss of pay
or other employment benefits suffered as a result of our unlawful conduct, with interest.
WE WILL furnish to the Union in a timely manner the following information requested by it: A list
of drivers and their current and proposed schedules; an explanation of how the schedules
are adjusted; and the attendance records of all its drivers.
COOK DUPAGE TRANSPORTATION COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
200 West Adams Street, Suite 800
Chicago, Illinois 60606-5208
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.