Dedicated Services

National Labor Relations Board - Board Decisions

Jun 27, 2008

352 N.L.R.B. 753 (N.L.R.B. 2008)

DEDICATED SERVICES
352 NLRB No. 93
753
Dedicated Services, Inc. and Local 1181-1061, Amal-
gamated Transit Union, AFL–CIO and Local
713, International Brotherhood of Trade Unions
International Union of Journeyman and Allied
Trades. Case 29–CA–28447
June 27, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On March 4, 2008, Administrative Law Judge Steven
Fish issued the attached decision. The Respondent filed
exceptions and a supporting brief. The Charging Party
filed a brief in response to the Respondent’s exceptions,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge that the Respondent violated Sec. 8(a)(2)
and (1) by recognizing Local 713, International Brotherhood of Trade
Unions International Union of Journeyman and Allied Trades, as the
exclusive collective-bargaining representative of the Respondent’s
employees on February 5, 2007, a time when Local 713 had not ob-
tained any signed authorization cards from employees, and accordingly
did not represent a majority of the Respondent’s employees. We there-
fore find it unnecessary to address the judge’s discussion of the General
Counsel’s alternative theory that if Local 713 had obtained cards from a
majority of employees those cards were tainted by the Respondent’s
unlawful conduct.
Additionally, in rejecting the Respondent’s accretion defense, we as-
sume without deciding that February 5, 2007, the date the Respondent
recognized Local 713, is the operative date for the accretion analysis.
We agree with the judge’s finding that, as of that date, a lawful accre-
tion had not occurred. We find it unnecessary to consider the judge’s
view that a later date might be more appropriate for an accretion analy-
sis in this case.
Because the judge found and we agree that Local 713 did not have
majority support at the time of recognition, Member Liebman finds it
unnecessary to rely upon the judge’s discussion of the General Coun-
sel’s alternative theory that the recognition was premature and unlaw-
ful.
3 We shall substitute a new notice to conform to the language set
forth in the Order.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dedicated Services, Inc.,
Richmond Hill, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT direct or urge our employees or appli-
cants for employment, to sign cards authorizing Local
713, International Brotherhood of Trade Unions Interna-
tional Union of Journeyman and Allied Trades (Local
713) to represent them or authorize dues for Local 713 to
be deducted from their salary.
WE WILL NOT inform our employees or applicants for
employment that they must sign cards authorizing Local
713 to represent them or to have dues for Local 713 de-
ducted from their salary, in order to be employed by us.
WE WILL NOT recognize Local 713 as the exclusive
collective-bargaining representative of our employees at
our Richmond Hill facility, at a time when Local 713
does not represent a majority of such employees
WE WILL NOT enter into and enforce any collective-
bargaining agreement with Local 713 containing union-
security and dues-checkoff provisions at a time when
Local 713 does not represent a majority of such employ-
ees.
WE WILL NOT enforce and/or give effect to any current
collective-bargaining agreement with Local 713; pro-
vided, however, that nothing in the Board’s Order shall
authorize or require the withdrawal or elimination of any
wage increase or other improved benefits or terms and

decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD754
conditions of employment that may have been estab-
lished pursuant to the performance of such collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from
Local 713 as the exclusive collective-bargaining repre-
sentative of our employees, unless and until the labor
organization has been certified by the Board as the exclu-
sive representative of such employees.
WE WILL reimburse, with interest, all present and for-
mer employees for all initiation fees, dues, and other
moneys paid by them or withheld from them pursuant to
the terms of dues-checkoff and union-security provisions
of the collective-bargaining agreements between us and
Local 713.
DEDICATED SERVICES, INC.
Annie Hsu and Sharon Chau, Esqs., for the General Counsel.
Denise A. Forte and Scott Trivella, Esqs. (Trivella, Forte and
Smith, LLP), of White Plains, New York, for the Respon-
dent.
Richard Brook (Meyer Suozzi, English, Klein, P.C.), of New
York, New York, for the Charging Party.
Brian McCarthy, Esq. (O’Connor & Mangan, P.C.), of New
Rochelle, New York, for the Party to the Contract.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charges
and amended charges filed by Local 1181-1061 Amalgamated
Transit Union, AFL–CIO (Local 1181), on August 13, and
October 23, 2007,1 respectively, the Regional Director for Re-
gion 29, issued a complaint and notice of hearing on October
29, alleging that Dedicated Services, Inc. (Respondent) violated
Section 8(a)(1), (2), and (3) of the Act, by rendering unlawful
assistance to Local 713 International Brotherhood of Trade
Unions, International Union of Journeyman and Allied Trades
(Local 713), and by recognizing and signing a collective-
bargaining agreement with Local 713, containing a union-
security clause, even though Local 713 did not represent an
uncoerced majority of employees in the unit, and at a time that
Respondent did not employ a representative complement of
employees and was not engaged in its normal operations. The
trial with respect to the allegations in the above complaint was
held before in Brooklyn, New York, on December 17. The
General Counsel made several amendments to the complaint
during the course of the hearing, and Respondent made certain
amendments to its answer. Briefs have been filed by the Gen-
eral Counsel, Respondent, and Local 1181, and have been care-
fully considered. Based upon the entire record, including my

1 All dates herein are in 2007, unless otherwise indicated.
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, is a corporation, with its principal office and
place of business at 89-42 129th Street in Richmond Hill, New
York, where it has been engaged in providing paratransit ser-
vices for the city of New York.
Based on a projection of its operations, from February 26, at
which time Respondent commenced its operations, to October
25, 2007, a period which will be representative of its operations
in general, Respondent in conducting its business operations,
will annually provide services valued in excess of $250,000 to
New York City, a governmental entity that meets the Board’s
standard for the assertion of jurisdiction, and will purchase and
receive at its Richmond Hill facility goods and materials in
excess of $5000 directly from suppliers located within the State
of New York, which supplies, in turn, purchased and received
the goods and materials directly from outside the State of New
York.
Respondent admits, and I so find, that it is and has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It is also admitted and I so find, that Local 1181 and Local
713 have been and are labor organizations with the meaning of
Section 2(5) of the Act.
II. FACTS
Charles Mattera, the president, sole shareholder, director,
and officer of Respondent, is also the president, and sole share-
holder, director, and officer of Dedicated Transportation, Inc., a
transportation services provider located at 211 Street in Queens
Village, New York. Dedicated Transportation has been in
business since January 2003, and utilizes ambulettes and vans
to provide transportation to the elderly and disabled. This work
is essentially the same, as the work performed by employees of
Respondent. Employees of both Respondent and Dedicated
Transportation are required to have a commercial driver’s li-
cense, are required to be drug tested, and must take a physical.
The vans and equipment used by both companies are similar.
However, Dedicated Transportation does not operate pursuant
to a contract with the New York City Transit Authority
(NYCTA) and does not provide access-a-ride services.
Dedicated Transportation and Local 713 are parties to a col-
lective-bargaining agreement (the agreement) which runs from
November 1, 2006, until October 31, 2009. The agreement
states that it is between Local 713 “acting for and behalf of
itself and the employees covered by this Agreement, now em-
ployed or hereafter to be employed by the Employer, Dedicated
Transportation Inc.”
The recognition clause states that Local 713 has been desig-
nated by the majority of employees in the bargaining unit and
the unit is subsequently defined as follows:
Full-time ambulette drivers, mechanics, assistant mechanics,
matrons and service persons, excluding all other employees,
including executive, managerial and confidential employees,
temporary employees, relief employees, watchmen and su-
DEDICATED SERVICES 755
pervisors as defined by the National Labor Relations Act (as
amended).
Dedicated Transportation employed 38 employees in the
bargaining unit covered by the above contract.
In May 2006, Dedicated Transportation submitted a bid to
the NYCTA to provide access-a-ride services. Access-a-ride is
a service provided by the NYCTA to residents of New York
City, wherein elderly and disabled individuals are transported
to and from their homes to wherever in New York City the
individuals need to go. This service is provided by various
contractors, who lease vehicles owned by NYCTA, and provide
the employees to drive and maintain the vehicles and transport
the individuals to and from their destinations. The NYCTA
utilizes a number of different contractors at the same time to
perform these services.
In June 2006, Mattera, on behalf of Dedicated Transportation
began negotiations with representatives of the NYCTA, con-
cerning the awarding of a contract for these services. During
the course of these negotiations, it became clear that Dedicated
Transportation would lease up to 50 vehicles from the NYCTA
to perform the work required. Dedicated Transportation at the
time had 30 vehicles of its own at its facility in Queens Village,
New York, and there was no room for expansion at that loca-
tion. Thus, Mattera decided to lease another facility, in Rich-
mond Hill, in order to store the vehicles to be used for the ac-
cess-a-ride contract. Mattera notified the NYCTA that Dedi-
cated Transportation had a location that could house 50 vehi-
cles. Mattera signed a document June 8, 2006, stating that
Dedicated Transportation would place up to 50 vehicles in ser-
vice, on various dates, culminating on April 2, 2007.
In early November 2006, Dedicated Transportation was
awarded the bid by NYCTA. However, shortly thereafter, at a
meeting with NYCTA officials, Mattera was informed that the
City did not want their vehicles used for access-a-ride to have
the same name on them, as Dedicated Transportation. There-
fore, it was suggested by the NYCTA that Mattera form a sepa-
rate corporation for the access-a-ride contract. Thus, Mattera
formed Respondent, and filed incorporation papers on Decem-
ber 14, 2006.
On the very same day, as demanded by the NYCTA, Dedi-
cated Transportation signed a guaranty that if Respondent
failed to or was unable to perform the terms of the contract with
the NYCTA, that Dedicated Transportation perform such obli-
gations under the contract. I would also note in this regard that
in making its bid, Dedicated Transportation was required to
submit financial history for 3 years, which is required by the
NYCTA, which does not award contracts to start up companies
without a financial history or a guarantee from a parent com-
pany. Dedicated Transportation also loaned over $300,000 to
Respondent, in order to finance the startup of Respondent’s
operations.
During the bidding process, Dedicated Transportation sub-
mitted its contract with Local 713 to the NYCTA, and made its
bid based on the terms of such contract, which Mattera believed
would be applicable to the access-a-ride employees. However,
Mattera was aware that the other access-a-ride providers paid
over $2-per-hour more than the wages provided to its Dedicated
Transportation employees. Therefore, Mattera knew that he
would have to pay the extra $2 in wages, in order to attract
employees, since otherwise such employees would work for
one of the other contractors. Mattera informed representatives
of Local 7132 about his desire to pay employees more than the
Local 713 contract called for, and they were agreeable to this.
Mattera Scalza and Acevedo had previously discussed applying
the Dedicated Transportation contract to Respondent’s employ-
ees, and Mattera had agreed to do so. Nothing was signed or
put in writing with respect to this agreement by Mattera.3
In December 2006, Respondent began to advertise in the
newspaper for employees to perform its access-a-ride work.
Riccardo Baerga saw the ad and responded by phone. He
spoke to Randy Russo.4 Russo asked Baerga if he had a CDL,
and if so, to fax it to Respondent. Baerga complied with
Russo’s request. In late January 2007, Russo telephoned
Baerga, informed him that his CDL was good and asked if he
was still interested in employment. Baerga responded, “Yes.”
Russo told Baerga that Respondent would be having a training
class, starting in mid-February, and asked Baerga to come in
and fill out an application. Baerga was told to report to the
Dedicated Transportation facility on 211 Street on February 5.
Present along with Baerga and Russo were three other men.
Russo gave each of the individuals a folder containing an appli-
cation for employment with Respondent, W-2 forms, letters of
reference, agreement to submit to a blood test, and a card for
Local 713. The card was entitled “application and check off
authorization form.” The card by its terms authorizes the Em-
ployer to deduct dues from the signer’s wages, and be for-
warded to Local 713. The card does not expressly authorize
Local 713 to represent the signer. One of the individuals asked
what the union card was for. Russo replied that it was a union
card and that it had to be filled out as part of the application.
Russo added that this was the Union that comes with the Com-
pany, and this Union was the representative of the employees of
the Respondent. Baerga and the other individuals all filled out
the documents required, including the union card. Baerga,
however, did not fill in the date on his card. Baerga asked one
question of Russo about how long the shift would be and what
the start time would be. Russo replied that employees would be
working Monday through Friday, the shifts would begin be-
tween 4 and 6 a.m. and last 10-1/2 hours. Russo also informed
the employees that they would be paid $9 per hour during 2
weeks of training, which would start on February 12. Russo
added that when they started driving they would receive $11
per hour, with an increase of 25-cents-an-hour after 30 days of
driving.
On the very same day that Baerga signed his Local 713 card,
Respondent executed a recognition agreement with Local 713.
It reads as follows:

2 The representatives were John Acevedo and Robert Scalza.
3 The date of this conversation is not disclosed in the record.
4 It is admitted and I find that Russo was a supervisor and agent of
Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD756
LOCAL 713 I.B.O.T.U. IUJAT,
RECOGNITION AGREEMENT
It is hereby stipulated and agreed this February 5, 2007
by and between Local 713 International Brotherhood of
Trade Unions IUJAT, hereinafter referred to as the
UNION, and Dedicated Service Inc. hereinafter referred to
as the EMPLOYER that:
Whereas, the UNION represents the majority of the
access-a-ride drivers, mechanics, helpers and maintenance
employees of the EMPLOYER.
Whereas, the EMPLOYER recognizes the UNION as
the bargaining representative of its employees.
Whereas, both the UNION and the EMPLOYER are
desirous of entering into a Collective Bargaining Agree-
ment.
Now, therefore, in consideration of the mutual con-
vents, and agreements hereinafter contained, it is agreed
that :
1. The EMPLOYER recognizes the UNION as the sole
and exclusive bargaining agent for all its full-time and
regular part-time employees. Excluding all office clerical
employees and supervisors.
2. The EMPLOYER further agrees to commence nego-
tiations with the UNION Immediately, and said negotia-
tions are to continue until completion.
3. This agreement shall remain in full force and effect
from the above cited date, up to and including the 1st day
that a fully executed collective bargaining agreement is
consummated.
This document was signed by Mattera and Scalza. Respon-
dent signed this document, according to Mattera, after Acevedo
informed him that some of the drivers had reached out to him,
and he wanted to organize Respondent’s employees. Acevedo
asked Mattera to sign an agreement for Local 713 to “talk to the
people and organize the shop.” Mattera states that Acevedo did
not have, nor did he show Mattera any signed union cards at the
time. In fact, Acevedo told Mattera that he did not have any
signed cards at the time. Acevedo informed Mattera that he
would go to the classes and speak to the employees.5
In Respondent’s position, paper submitted during the inves-
tigation, it contends that Respondent recognized Local 713, on
February 5, based upon the fact that Local 713 had obtained six
authorization cards from Respondent’s employees. In that re-
gard, the parties stipulated that the only authorization cards that
Respondent’s employees authorized Local 713 to be their rep-
resentative, were the six cards attached. These six cards, in-
cluding Baerga’s card, were all identical. (I.e., they were “ap-
plication and checkoff authorization forms.”) As I have related
above, Baerga’s card was signed on February 5, although it was
dated February 1, by someone other than Baerga. Further the
date of employment listed on Baerga’s card, was February 26,
the date that Respondent started servicing clients. The remain-
ing five cards were allegedly signed by Andres Vargas, Annette

5 Neither Acevedo nor Scalza, nor anyone from Local 713 testified
in this proceeding.
Brown, Dwight Cockrell, Andrew Cumming, and Tony Tong.
No testimony or other evidence was offered by any party as to
the circumstances of the signing of these five cards.6 The cards
of Crockwell, Brown, Cumming, Vargas, and Tong were dated
February 2. The card for Tong was dated February 1. Crock-
well, Brown, Cumming, Vargas, and Tong did not testify, so
the record is unclear as to when or how they were hired. Mat-
tera testified that all six of these employees (including Baerga),
plus four other employees were hired “in late January or early
February, after being interviewed and having their licenses
checked.” Mattera testified and the payroll records confirm
that no unit employee was paid until February 12,7 the date the
training commenced. Crockwell had been an employee of
Dedicated Transportation. He asked Mattera if he could work
for Respondent, since Respondent’s pay scale was going to be
higher than that of Dedicated Transportation. Mattera agreed
and Crockwell was hired by Respondent.
The payroll records of Respondent reflect that starting on
February 12, the first date that any unit members were paid,
Respondent employed 10 employees. In addition to the six
employees described above, Respondent also employed Barry
Jones, Gail McDaley, John Pacheco, and Michael Dougherty.
McDaley had, like Crockwell, been employed by Dedicated
Transportation, and had asked Mattera to be employed by Re-
spondent, in order to obtain higher pay.
Further, the record reveals that at some point undisclosed by
the record, Mattera spoke to Acevedo from Local 713, and they
agreed that when employees such as Crockwell and McDaley
were transferred to Respondent from Dedicated Transportation,
they would continue to receive contractual benefits under the
Dedicated Transportation contract, such as medical benefits.
Further, according to Mattera, Respondent continued to check-
off dues for these employees, and send same to Local 713, even
prior to Respondent signing a contract with Local 713 in May.8
As related above, training began on February 12, the first
day that Respondent’s employees were paid. The training was
held at Russo’s CDL School in Brooklyn, New York, and
lasted for 2 weeks. According to Baerga, there were 12 em-
ployees at the training, including himself, but that none of the
individuals who were with him on February 5, when he signed
his union card, were in the class. Baerga further testified that 1
of the 12 did not pass the road test, so he was not hired when
Respondent began servicing clients on February 26, and an-
other individual, decided not to work for Respondent. Baerga
did not testify as to the names of the two individuals who par-
ticipated in the training, but did not start working for Respon-
dent on February 26. During the training sessions, Russo
handed out the Local 713 cards that Baerga and some others
had previously signed, and instructed them to correct certain
mistakes that they had made. The employees complied and
returned the cards to Russo.

6 As I have observed above, neither Scalza, Acevedo, nor any other
representatives of Local 713 were called as witnesses.
7 Russo was paid starting on February 9.
8 However, I note that the payroll records submitted by Respondent
do not reflect any deductions of dues from the salaries of Crockwell or
McDaley in February or March.
DEDICATED SERVICES 757
During the training, the employees were told of their starting
date and their shifts by Russo. At one point during the second
week of training, Acevedo came to the session, and was intro-
duced by Russo as the “person from the Union.” Acevedo
explained to the employees benefits and discounts that they
would receive from the Union.
The payroll records reveal that during the 2-week training
period, starting on February 12, Respondent paid the 10 em-
ployees listed above $9 per hour, as Baerga had been informed.
As also related above, Respondent began servicing clients on
February 26. For the payroll period ending March 4 (which
included February 26), Respondent’s payroll records revealed
that it employed the 10 drivers who went through the training
session, and who were now paid the $11 per hour Baerga had
been promised. It also employed a Moses Solomon, who was
hired in March at a salary of $13.50 per hour.9
The payroll records also reveal that Respondent hired three
employees as mechanics, during that week. They were Kar-
anchan Basdeo hired on February 26; Jay Divecha, hired on
February 24; and Carlos Martinez, hired on February 20. Bas-
deo and Martinez were paid $10 per hour and Divecha $18.10
The payroll records also establish that under the section entitled
“management,” Respondent in addition to Russo, employed
Michelle Hosein starting on February 26, at $17.50 per hour;
Muntaz Hosein, starting on February 21, at $22.50 per hour;
Dessie Mathews, starting on February 20, at $13.65 per hour;
and James McMillan, on February 21, at $13.65 per hour. The
payroll records do not reflect, nor was any testimony offered to
establish what positions were held by McMillan, Mathews, or
the Hosein’s. However, Mattera did testify that Respondent
employed dispatchers who had not been employed by Dedi-
cated Transportation. Thus, it is likely that some or all of these
employees listed as management were dispatchers.11
Respondent began its operations during the week on Febru-
ary 26 with 10 vehicles, and Mattera conceded that he expected
the amount of vehicles needed and employees hired would
increase substantially. Indeed as noted, he had agreed to lease
at least 50 vehicles from the NYCTA.12 During the next pay-
roll period, the week ending March 11, Respondent hired eight
new drivers. Thus, for that week Respondent employed 18

9 The record does not reflect whether Solomon attended any training
sessions, or why he was paid $13.50 per hour. It is probable that he
was hired with experience as an access-a-ride driver, which also could
account for his $13.50 salary.
10 The record does not reveal whether the three mechanics had any
paid training, as was required of the drivers.
11 During his testimony, Mattera testified that he transferred Charles
Nicosia, a maintenance supervisor, from Dedicated Transportation to
Respondent, in the same position. However, the payroll records estab-
lish that Nicosia was not hired by Respondent until April 25. Thus,
Nicosia was not employed by Respondent during its first week of op-
eration, as Mattera seemed to suggest.
12 Mattera testified that since the routes required employees in the
evening and the morning hours, Respondent may need two or three
employees to complete a route. Thus, Respondent would need more
than 50 employees to drive 50 vehicles.
drivers.13 Thus, for that week, Respondent employed 18 driv-
ers and 3 mechanics, as well as the same employees listed
above as “management.”14
Dwain Arietta was employed by TFM another access-a-ride
contractor. In late February, he heard from other drivers in the
industry, that Respondent, another access-a-ride carrier, would
be opening up. He decided to apply and spoke to Russo at the
Richmond Hill facility. Russo handed Arietta a folder with
various forms to fill out, including a card for Local 713. Russo
asked Arietta to fill out the various forms in the folder, but
there was no specific discussion about the union card on that
day. Arietta filled out some of the forms, but not the union
card. Russo asked Arietta when he would be available, and
added that Respondent needed experienced drivers. Arietta did
not finish filling out the forms and left. He returned several
weeks later, in March, along with three other fellow drivers
from TCM. On this occasion, Russo again gave Arietta the
folder of forms to fill out, including the Local 713 card. Arietta
asked about the union card. Russo replied that this is a union
card and it’s a Union that represents the Company. Russo
added that Arietta had to fill out the card, in order to work for
Respondent. Russo asked when Arietta would be available to
work. Arietta replied that he did not know when he would be
able to leave his present job at TFM. Russo told Arietta that he
would call. Arietta did not fill out the union card on that day.
In June, Arietta returned to Respondent’s facility to see if the
job was still available. Russo replied that the job was still
open, and again gave Arietta a portfolio of forms, including a
union card to fill out. On this occasion, Arietta asked what if
he did not want to fill out the card. Russo replied that if he did
not fill out the card, he could not work for Respondent. Arietta
filled out all the forms, including the union card, and returned
them to Russo. He began working for Respondent as a driver
in the last week of June.
Arietta informed representatives of Local 1181 that Russo
had told him that he needed to sign a Local 713 card in order to
work for Respondent, sometime between March and June.
Respondent continued to hire additional employees each
week thereafter, as the number of the vehicles leased from the
NYCTA increased. On April 30, it hired nine drivers, and two
“management” employees, Nicosia and Taewos Phanglym.15
On May 1, Respondent and Local 713 entered into a collec-
tive-bargaining agreement effective from May 1, 2007, through
April 30, 2010. The agreement contains a union-security clause
and states that Local 713 has been designated by a majority of
Respondent’s employees in the unit, and has exhibited to Re-
spondent, “authorization signed by a majority of such present
employees of the Employer.”
The agreement provides for recognition in the following
unit:

13 Employee Michael Dougherty did not appear on the payroll for the
week of March 11, or anytime thereafter. Apparently, his employment
with Respondent ended during the prior week.
14 Michelle and Muntaz Hosein, Mathews, McMillan, and Russo.
15 Phanglym was paid $13.65 per hour. There is no evidence in the
record concerning Phanglym’s job. Nicosia was a supervisor of the
maintenance employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD758
Full-time and part-time Access-A-Ride drivers and mechan-
ics, helpers and maintenance personnel, excluding all other
employees, including but not limited to executive, managerial
and confidential employees, temporary employees employed
for 25 hours or less per week for a period of no more than
(90) ninety days, relief employees, watchmen and supervisors
as defined in the National Labor Relations Act (as amended).
The agreement signed by Local 713 with Respondent is vir-
tually identical with the contract signed between Local 713 and
Dedicated Transportation, in most respects. There are, how-
ever, certain exceptions. In addition to the differences in the
unit description, there are differences in the seniority, wages,
workweek, and welfare fund clauses. With respect to seniority,
both contracts define seniority, as “an employee’s length of
continuous service with the Employer in the bargaining unit.”
Thus, there is no credit given in the Respondent’s contract for
service with Dedicated Transportation. The starting wage rate
for drivers under the Dedicated Transportation contract has
$8.25 per hour. It also provides for a starting wage of $7.25 for
matrons, and has no rate listed for mechanics. The agreement
also provides for an incentive bonus of 50-cents-per-hour for
drivers if they comply with various listed standards. Respon-
dent’s contract with Local 713 provides for a minimum starting
wage of $11 per hour for drivers, with a caveat that experienced
access-a-ride driver’s wages may differ according to years
worked in the access-a-ride industry. This contract provides for
minimum rates for mechanics ($13 per hour), and mechanics
and maintenance personnel at $10 per hour. There is no provi-
sion for an incentive bonus, as reflected in the Dedicated
Transportation contract.
The workweek in the Dedicated Transportation contract is
defined as based on 8 hours per day and 40 hours or less if they
work less or more if scheduled more. The workweek in Local
713’s contract with Respondent, defines workweek as Monday
12:01 a.m. through Sunday 12 p.m., and states that any disputes
concerning the number of route hours assigned to a particular
route shall not be subject to arbitration. The clause also allows
the Respondent to “establish reasonable productivity stan-
dards,” for which employees could be disciplined, if they fail to
meet such standards. The welfare fund clause in the Dedicated
Transportation contract mandates contributions for all unit em-
ployees who work 30 hours per week or more, and provides for
two types of coverages. Plan B, is a single coverage plan
which is applicable to employees hired before November 1,
2002, and calls for payments of $200, $205, and $210 monthly
for each employee.16 Plan C, single coverage, which applies to
all “new” employees calls for payments of $100, $105, and
$110 monthly on the same dates. For new employees, pay-
ments are to be made after 90 days of probation of continuous
service. Employees are not eligible for coverage until 90 days
of contributions are made. Further, the Employer is not re-
quired to pay for medical coverage on behalf of an employee
who has medical coverage through a spouse or other employ-
ment.

16 The payments are due November 1, 2006, 2007, and 2008, respec-
tively.
Respondent’s contract with Local 713 provides for a single
plan (plan C), with payments for each full-time employee, of
$110, $115, and $120 per month, to be made on September 1,
2007, 2008, and 2009, respectively. Contributions need not be
made for employees until they complete a 120-day probation-
ary period, and the employees are eligible for coverage after 4
months of continuous service.
The contract as in the Dedicated Transportation agreement,
does not obligate Respondent to make contributions for em-
ployees who have medical coverage through a spouse or other
employment, but adds a provision not included in the Dedicated
Transportation contract, that in the event an employee presents
proof of alternate coverage and waives coverage with Respon-
dent, Respondent will pay such employee $50. Further, Re-
spondent’s contract with Local 713, unlike the contract with
Dedicated Transportation, gives Respondent the “sole and ab-
solute right to provide alternative medical coverage which is
equal to or better than what they are currently receiving upon
ninety days written notice to the Union.”
Finally, Respondent’s contract, unlike its agreement with
Dedicated Transportation, states that “should the Employer’s
contract with the New York City NYCTA be terminated for
any reason, then this agreement shall automatically be termi-
nated and be null and void. Upon the above occurrence, both
parties shall be released of any and all legal liabilities or re-
sponsibilities to one another.”
For the payroll period ending May 6, Respondent employed
39 drivers 6 maintenance employees, and 9 individuals desig-
nated on the payroll as management.17
From May through December, Respondent’s employee com-
plement continued to increase, as the vehicles and workload
increased. For the payroll period ending December 2, Respon-
dent employed a total of 102 employees as drivers and mainte-
nance employees, and 24 employees listed as management.18
Mattera testified that at the time of the trial (December 17),
Respondent employed 96 or 97 employees, and had leased 50
vehicles from the NYCTA. He added that the city has asked
Respondent to take 20 more vehicles, approval of which is still
pending. Once that approval is obtained, that would necessitate
Respondent hiring at least 20 more employees. As I have de-
tailed above, Dedicated Transportation employed 38 employ-
ees. Two of these employees (Crockwell and McDale) were
transferred over to Respondent, as part of its original crew of
drivers.19 Nicosia, Dedicated Transportation’s maintenance
supervisor was transferred to Respondent in the same position,
in April.

17 The individuals designated as “management,” included Russo, an
admitted supervisor, Nicosia who Mattera characterized as the supervi-
sor of the maintenance employees, and seven others for which the
record is unclear to their job functions or titles as I have discussed
above.
18 As noted above, as to most of the individuals, the record is uncer-
tain as to their job functions or titles. The December 2 payroll, in addi-
tion to Nicosia and Russo, also contained the name of Mattera, who as
detailed above is Respondent’s president. It also included Crockwell,
who was previously employed as a driver. He received $13.65 as a
salary and was promoted to the position of dispatcher.
19 As noted, Crockwell was subsequently promoted to dispatcher.
DEDICATED SERVICES 759
Mattera testified that as of the date of the trial, there were 7–
10 employees who were transferred at their own request from
Dedicated Transportation to Respondent. In addition to
Crockwell and McDale, Mattera mentioned Keith Stewart.
Stewart worked for Respondent in the office as a road supervi-
sor, which entails going around and checking to see that the
drivers are doing what they are supposed to be doing.20 Mat-
tera admitted that there is no day-to-day interchange between
the two companies. While as I have indicated above, the work
performed by the employees of the two companies is essentially
the same (i.e., transporting the elderly and disabled), there are
some differences. Respondent leases the vehicles used for the
access-a-ride contract from the NYCTA, while Dedicated
Transportation uses its own vehicles, Respondent’s employees
collects fares from it passengers, and have 2 weeks of training,
while Dedicated Transportation employees do not collect fares,
and have no formal training program.
III. ANALYSIS
A. The 10(B) Issue
Section 10(b) of the Act provides that “no complaint shall be
issued based upon any unfair labor practice occurring more
than 6 months prior to the filing of the charge with the Board.”
However, it is well established that the 10(b) period does not
begin to run until the Charging Party has received “clear and
unequivocal notice, either actual or constructive” of the viola-
tion. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004); St.
Barnabas Medical Center, 343 NLRB 1125, 1126 (2004);
Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802
(D.C. Cir. (1995); Amcar Division, 234 NLRB 1063 (1978),
enfd. 596 F.2d 1344, 1351 (8th Cir. 1979). The burden of
showing such clear and unequivocal notice is on the party rais-
ing Section 10(b) as an affirmative defense. Broadway Volks-
wagen, supra at 1246; Chinese American Planning Counsel,
307 NLRB 410 (1992), review denied mem. 990 F.2d 624 (2d
Cir. 1993).
In applying these principles to the instant case, Respondent
has the burden to establish that Local 1181 (the Charging
Party) had clear and unequivocal notice that Respondent had
violated the Act, outside the 10(b) period.
In that regard, Respondent correctly asserts that Respondent
signed its recognition agreement with Local 713 on February 5,
which is more than 6 months from the date of the initial charge,
which was filed on August 13. However, that is not the end of
the inquiry. Respondent must establish that Local 1181 had
clear and unequivocal notice, either actual or constructive, of
the violation outside the 10(b) period. In my view, it has fallen
far short of meeting its burden in that regard. Respondent has
adduced absolutely no evidence that Local 1181 had actual
notice of the recognition of Local 713 by Respondent on Feb-
ruary 5, or at any other time outside the 10(b) period. (I.e.,
prior to February 13.) Respondent makes no such contention,

20 Mattera testified that Stewart is part of the unit and a union mem-
ber. His hire date for Respondent was March 5. The record reveals
that dues were deducted from his salary for Local 713. The record does
not reflect what position Keith Stewart held when he was employed by
Dedicated Transportation.
but instead argues that Local 1181 had constructive knowledge
of the recognition, that required Local 1181 to exercise reason-
able diligence. Ohio & Vicinity Regional Council of Carpen-
ters (Schaefer Group), 344 NLRB 366, 367–368 (2005). I
disagree.
Respondent relies on the evidence that applicants were told
to fill out paperwork for employment, including signing a Local
713 card on or before February 5. The evidence in this regard
from one witness, Baerga does demonstrate that he, as well as
three other applicants were informed by Russo on February 5,
that it was a union card, it had to be filled out as part of the
application, and that this Union comes with the Company and
was the representative of employees of Respondent. However,
Respondent adduced no evidence that Baerga informed Local
1181 of these facts at any time outside the 10(b) period. Indeed
Baerga credibly testified that he did not inform any Local 1181
representative about his conversation with Russo, until Sep-
tember, well within the 10(b) period.
I therefore conclude that Baerga’s knowledge of possibly
unlawful acts,21 cannot be attributed to Local 1181, nor would
it suggest to Local 1181 that it needed to exercise any due dili-
gence, since it knew nothing of the conversation between Russo
and Baerga. Broadway Volkswagen, supra at 1246. (None of
the employees informed the Union about unilateral changes in
wages and promotions.); St. George Warehouse, 341 NLRB
904, 905 (2004) (union not shown to have constructive notice
of employer’s use of agency employees); Nursing Center at
Vineland, 318 NLRB 337, 339 (1995) (union did not have con-
structive notice that employee’s bonus had been terminated
outside the 10(b) period until employee informed the Union,
within the 10(b) period); Fire Tech Systems, 319 NLRB 302,
305 (1995) (Although employer told employees outside the
10(b) period that it intended to establish a nonunion operation,
insufficient to establish clear and unequivocal notice. Notice to
employees, does not constitute notice to the union.); Brimar
Corp., 334 NLRB 1035 fn. 1 (2001) (knowledge of alleged
unilateral change not imputed to union for 10(b) purposes, even
though shop steward was aware of change); Patsy Trucking,
Inc., 297 NLRB 860, 862–863 (1990) (Knowledge by union
members of unilateral changes, does not constitute notice to the
union for purposes of triggering the statute of limitations, citing
Stone Boat Yard v. NLRB, 715 F.2d 441 (9th Cir. 1983).).
Respondent also relies on the testimony of witness Dwayne
Arietta, who was employed as a driver by TFM, another access-
a-ride contractor. According to Arietta, in late February he
heard from other drivers in the industry that Respondent, an-
other access-a-ride carrier would be opening up. He decided to
apply and spoke to Russo at that time. Russo gave Arietta a
folder with forms to fill out, including a Local 713 card, but
there was no discussion about the union card or the Union on

21 I note that even as to Baerga these facts do not establish clear and
unequivocal notice of a violation, vis-á-vis the recognition. The fact
that he was told that Local 713 represented the employees, does not
automatically establish that the recognition was unlawful, nor would it
suggest same to Baerga. Indeed, Respondent asserts that the recogni-
tion was lawful, since Local 713 had obtained a majority of cards, and
based on an accretion theory. Baerga had no reason to doubt that the
recognition may have been lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD760
that day. Arietta returned to Respondent several weeks later, in
mid-March, when Russo informed him that he must fill out the
Local 713 card in order to work for Respondent, and that the
Union represents the Company. Sometime between March and
June, Arietta informed a representative of Local 1181 about his
conversation with Russo.
Respondent argues that based upon this testimony, as well as
Arietta’s additional testimony that in late February, when he
heard about Respondent opening from other drivers, that “we
all know who is opening up,” is sufficient to prove constructive
knowledge to Local 1181, which required Local 1181 to exer-
cise reasonable diligence, and inquire about Respondent’s rela-
tionship with Local 713. Once more, I disagree.
First of all, Arietta’s testimony indicates that it was not until
“late February,” that he heard about Respondent opening up.
This date is not certain, and Respondent has the burden of prov-
ing that it was outside the 10(b) period. Since the 10(b) period
starts on February 13, late February could easily have been
after that date. Since Respondent must prove that Arietta’s or
Local 1181’s knowledge of Respondent opening up occurred
prior to February 13, and it has not done so, its reliance on Ari-
etta’s testimony is misplaced.
More importantly, even if it were found that Arietta and or
his fellow drivers knew about Respondent opening up prior to
February 23, such a finding would not be sufficient to meet
Respondent’s burden of proof on this issue. As related above,
notice to employees is not the same as notice to the Union, and
no evidence was adduced that Local 1181 knew about Respon-
dent opening, prior to March, well within the 10(b) period.
Respondent argues in this regard, that because Local 1181
represents employees who are employed by access-a-ride carri-
ers, it is deemed to have constructive knowledge of Respon-
dent’s opening, and the fact that Respondent had recognized
Local 713. Once more, I cannot agree.
Even if I were to find, which I do not for the reasons and
precedent cited above, that knowledge of the access-a-ride
drivers is attributable to Local 1181, vis-á-vis Respondent’s
opening up, this fact would not provide any evidence or suspi-
cion that Respondent had recognized Local 713. Thus, even if I
were to find that Local 1181 had constructive knowledge that
Respondent was opening and hiring employees, that does not
suggest that Respondent had recognized Local 713. Therefore,
it is not reasonable to require Local 1181 to make inquiries to
see if Respondent had recognized Local 713.
Finally, I also note that Respondent recognized Local 713 on
February 5, prior to having trained or even paid any employees,
and prior to starting its regular business operations on February
26, which is within the 10(b) period. Thus, any conceivable
argument that Local 1181 should have discovered Respondent’s
conduct through reasonable diligence, can only start with that
date. Since Respondent has failed to introduce a scintilla of
evidence, that Local 1181 knew or should have known, that
Respondent had recognized Local 713, outside the 10(b) pe-
riod, I conclude that it has not come close to meeting its burden
of establishing that Local 1181 had “clear and unequivocal”
notice of the recognition by Respondent of Local 713, on Feb-
ruary 5.
Accordingly based upon the above analysis and authorities, I
reject Respondent’s 10(b) defense.
B. The Conduct of Russo
I have found above that on February 5, Baerga, along with
three other applicants for employment with Respondent, was
informed by Russo that a dual-purpose authorization and
checkoff card for Local 713 had to be filled out as part of the
application, adding that this is the Union that comes with the
Company. Baerga, as well as the other applicants filled out the
Local 713 card, and returned it, along with the other forms
required to Russo. Further, on February 12, during the training
program, Russo handed out Local 713 cards to Baerga and
others that they had previously signed, and instructed them to
correct certain mistakes that they had made in filling out the
cards. The employees complied and returned the cards to
Russo.
It is clear and I so find, that Russo’s conduct described above
was coercive, and an unlawful interference with employees
right to select their own union representative, and constitutes
unlawful assistance to Local 713, in violation of Section 8(a)(1)
and (2) of the Act. Duane Reade, Inc., 338 NLRB 943, 944
(2003); Meyers Transport of New York, 338 NLRB 958, 970
(2003); Baby Watson Cheesecake, Inc., 320 NLRB 779, 786
(1996); Fountain View Care Center, 317 NLRB 1286, 1290
(1995); Shenandoah Coal, 305 NLRB 1071, 1072 (1992); and
Davis Supermarkets, 306 NLRB 426, 453 (1992); enfd. 2 F.3d
1162, 1176 (D.C. Cir. (1993).
Similarly, Arietta was informed by Russo in March and
again in June that he (Arietta) had to sign a card for Local 713
in order to work for Respondent. By such conduct, Respondent
has further violated Section 8(a)(1) and (2) of the Act.
Respondent argues with regard to Arietta’s testimony, that
“the statements were made when Dedicated Services was oper-
ating under a lawful conclusion that it was a union shop, and as
such the Company was operating in accordance with its obliga-
tions with respect to same.” Once again, I cannot agree.
In March, when Russo made the unlawful comments to Ari-
etta, Local 713 and Respondent had not entered into a contract
as yet, so Respondent’s implicit argument that all Russo was
doing was enforcing the union-security clause, is without merit.
The fact that Respondent had recognized Local 713 on Febru-
ary 5, even if lawful,22 does not permit Respondent to instruct
applicants to sign Local 713 cards, or to tell them that they need
to sign such cards to work for Respondent. See cases cited
above.
While the June conversation was after the contract with a un-
ion-security clause was signed, Russo’s conduct was still
unlawful. Respondent cannot require an employee to sign a
union card, in order to work for it. An employee has 30 days to
join the Union under the contract. Moreover, since I find below
that both the recognition and the signing of the contract with
Local 713 were unlawful, Russo’s comments to Arietta are
clearly unlawful, as well. I so find.
Further, it is well settled that checkoff authorizations must be
voluntary, even with a valid union-security clause. Thus,

22 As I detail below, I find that the recognition was unlawful.
DEDICATED SERVICES 761
where as here, the employees were told that they had to sign a
“dual purpose” card, which authorizes checkoff, in order to be
employed by Respondent, such conduct is further violative of
Section 8(a)(1) and (2) of the Act. Service Employees Local 74
(Parkside Lodge of Connecticut), 323 NLRB 2879, 293 (1997);
Rochester Mfg. Co., 323 NLRB 260, 262 (1997); Zurn Nepco,
316 NLRB 811, 819 (1995); Communications Workers Local
1101 (New York Telephone), 281 NLRB 413, 417 (1986); and
Gloria’s Manor Home for Adults, 225 NLRB 1133, 1143
(1976).
C. The Recognition of and Signing a Contract with
Local 713
The complaint alleges and the General Counsel contends that
Respondent recognized Local 713 at a time when the Union did
not represent an uncoerced majority of employees. The Gen-
eral Counsel relies on Mattera’s admission that at the time that
he signed the recognition agreement with Local 713, Acevedo
told him that the Union did not have any signed cards from
employees. Further Acevedo asked Mattera to sign the recog-
nition agreement, so he could “talk to the people, and organize
the shop.” I agree, and conclude consistent with this admission,
that Local 713 had not obtained any signed authorization cards
from employees, on or before February 5. I make this finding,
notwithstanding the fact that the six cards, which are in the
record, all are dated prior to February 5. I rely upon, in addi-
tion to Mattera’s admission, the credited testimony of Baerga,
that he signed his card on February 5, and not February 1, as
reflected on the card. Baerga did not fill in the date when he
signed his card, so the date was filled in by someone else,
probably someone from Local 713. I also rely upon the failure
of anyone from Local 713 to testify about how and when the
six cards were obtained. In these circumstances, it is appropri-
ate to draw an adverse inference from the failure of any Local
713 representative to testify,23 and find that their testimony
would have been unfavorable to Local 713 (as well as Respon-
dent), concerning this issue of when it obtained the signed
cards. Windsor Castle Health Facilities, 310 NLRB 579, 585
(1993); and International Automated Machine, 285 NLRB
1122, 1122–1123 (1987).
Accordingly, I conclude that Respondent recognized Local
713, on February 5, at a time that Local 713 had not obtained
any authorization cards, as well as at a time when Respondent
employed no employees. It has therefore violated Section
8(a)(1) and (2) of the Act by recognizing Local 713 in these
circumstances, and Section 8(a)(1), (2), and (3) of the Act by
subsequently signing a contract with Local 713 containing a
union-security clause. Co-Op City, 340 NLRB 35, 40 (2003);
and Windsor Castle, supra.
The General Counsel argues alternatively, that all six cards
are tainted by Respondent’s unlawful coercion, and that Section
8(a)(2) is violated when an employer recognizes a union, if the
union’s majority is tainted by unlawful coercion or assistance.
In that regard, the General Counsel contends that the evidence
is sufficient to conclude that “all or most of the six cards were

23 I note that two representatives from Local 713 were in the court-
room throughout the trial.
solicited by Respondent, where it directed applicants and em-
ployees to sign the cards and return them to Respondent.” I
cannot agree with the General Counsel’s assessment of the
evidence.
The only evidence of such coercion by Respondent is the tes-
timony of Baerga and Arietta. However, Arietta’s testimony
concerned events subsequent to the recognition, and is not re-
lated to any of the six cards. While Baerga did testify to his
own card being solicited unlawfully on February 5 by Russo, as
I have detailed above, he furnished no testimony concerning
any of the other five cards. While Baerga did testify that three
other applicants were with him when Russo solicited his card,
and were also subject to Russo’s unlawful coercion, none of
these three applicants were ever hired by Respondent, and they
were not among the six card signers.
While it is not unlikely that Russo did in fact solicit all the
cards in the same manner, as he did with Baerga’s and, as well
as with Arietta’s card after the recognition, I do not find the
evidence sufficient to make such a finding. It is the General
Counsel’s burden to prove that the cards were tainted, and I do
not find it appropriate to conclude, that it has met its burden of
proving that all six cards were tainted. I note in this regard, that
two of the card signers, Crockwell and McDale were already
Local 713 members, while employed by Dedicated Transporta-
tion, so it is conceivable that Local 713 would have been able
to obtain their signatures, without the assistance of Respondent.
However, since I have concluded that Baerga’s card was tainted
and invalid, as a result of Respondent’s conduct, his card can-
not be counted in determining Local 713’s majority status.
Thus, that finding reduces Local 713 to five cards, which is not
a majority of Respondent’s employees as of February 5, even
assuming it is concluded that they were hired as of that day.
Since Respondent employed 10 employees when it began its
training on February 12, Local 713 did not represent a majority
of employees in the unit, on February 5, 12, or at any other
time. Therefore, the General Counsel is ultimately correct that
Respondent recognized Local 713, when the Union did not
represent an uncoerced majority of employees, and that this is
further support for concluding that Respondent violated Section
8(a)(1) and (2) of the Act, by such conduct.24
The General Counsel makes another alternative argument, as
reflected in the complaint, that even if Local 713 represented a
majority of employees in the unit on February 5, the recogni-
tion was premature. The Board has set out the competing prin-
ciples and the test for deciding this issue:
Where a newly opened business has granted recogni-
tion, an issue concerning the timing of recognition can
arise. The Board has long balanced competing interests in
these cases. On the one hand, the Board seeks to vindicate

24 I make this finding, without concluding, one way or the other
whether Respondent is deemed to have hired the employees as of Feb-
ruary 5, since it had promised them employment by that date. This
conclusion is questionable, since the employees were not paid until
February 12 when training began. But for purposes of making my
finding, I assume that the employees as Respondent contends, were
hired as of February 5. However, as noted, Local 713 still did not
represent an uncoerced majority of employees at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD762
the right of those employees, already employed, to engage
in collective bargaining should they so choose. On the
other hand, the Board seeks to have that choice made, not
by a small, unrepresentative group of employees, but by a
group that adequately represents the interests of the antici-
pated full complement of the unit employees-all of whom
will be bound, at least initially, by the choice of those who
were hired before them.
Balancing those two interests, the Board has long held
that an employer’s voluntary recognition of a union is law-
ful only if, at the time of recognition, the employer: (1)
employed a substantial and representative complement of
its projected work force, and (2) was engaged in its normal
business operations. See, e.g., Hilton Inn Albany, 270
NLRB 1364, 1365 (1984). The test is in the conjunctive:
If either prong is not met, a grant of recognition is unlaw-
ful. See, A.M.A. Leasing, 283 NLRB 1017, 1024 (1987) (a
finding that the employer “was not engaged in normal
business operations . . . would alone establish a viola-
tion”). Elmhurst Care Center, 345 NLRB 1176, 1177
(2005).
The Board looks to General Extrusion Co., 121 NLRB 1165,
1167 (1958), a representation case for guidance in unfair labor
practice cases involving premature recognition. Hilton Inn,
supra at 1365. General Extrusion, supra, held that an existing
contract will bar an election, if compared to the hearing date,
the employer employed 30 percent of its employees in 50 per-
cent of the job classifications at the time the contract was
signed.
In applying this standard to the facts at hand, I conclude, in
agreement with the General Counsel, that Respondent had not
met either prong of the test utilized to assess premature recog-
nition.25
Taking the second prong first, there can be no question, that
Respondent was not engaged in its normal business operations,
when it recognized Local 713 on February 5. Indeed, on that
date, it was not engaged in any operations, since no unit em-
ployees had performed any work for Respondent by that time,
and no employee was paid until a week later, when training
began. Further, even when the training commenced on Febru-
ary 12, Respondent was still not engaged in its normal business
operations. During the 2-week training period, the 10 drivers
were engaged in training, and were not performing unit work,
but going through a training program, as required by the
NYCTA, for all access-a-ride drivers. Further, Respondent had
not hired any maintenance employees, dispatchers, or supervi-
sors (other than Russo) at that time. In such circumstances, I
find that Respondent was not engaged in its normal business
operations until February 26, when it began servicing clients.
Elmhurst Care Center, supra at 1178–1179; Hilton’s Inn, supra
at 1366; see also New Concept Solutions, LLC, 349 NLRB
1136, 1159 (2007).
As noted above, this finding alone is sufficient to conclude
that Respondent’s recognition was premature and unlawful.
Elmhurst Care, supra; A.M.A Leasing, supra. I also find that

25 I emphasize again that in order for the recognition to be lawful,
both prongs must be met.
the recognition was unlawful, because the first prong of the
Board’s test has also not been met.
Respondent’s complement of 10 employees on February 5,
increased gradually each week, as Mattera had anticipated, until
it reached 45 employees (drivers and maintenance employees)
as of May 1, when it signed a contract with Local 713, and by
December 2, it employed 102 employees in these categories.26
Therefore, I find that Respondent employed far fewer than
30 percent of its normal complement of unit employees, when it
recognized Local 713. Thus as of May 1, when it signed the
contract it employed 22.2 percent of unit employees, and by
December, by which time it had leased the 50 vehicles contem-
plated by Mattera, Respondent employed 102 drivers and main-
tenance employees. Thus, Respondent employed less than 10
percent of its contemplated unit employees, when it recognized
Local 713.
Accordingly, I conclude that the second prong of the Board’s
test for premature recognition has not been met. Hilton Inn,
supra; AMA Leasing, supra; Cowles Communications, Inc., 170
NLRB 1596, 1610–1611 (1968).27 This finding provides fur-
ther support for my conclusion that Respondent’s recognition
of Local 713 on February 5, was violative of Section 8(a)(1)
and (2) of the Act.
Respondent argues as its primary defense, that it is a single
employer with Dedicated Transportation, and that therefore its
decision to recognize Local 713 is lawful, whether or not Local
713 represented a majority or indeed any of its employees,
based on the fact that Respondent’s employees are an accretion
to Dedicated Transportation’s existing bargaining unit. Judge
& Dolph Ltd., 333 NLRB 175, 180–181 (2001).
I agree with Respondent’s initial argument that the evidence
demonstrates that Respondent and Dedicated Transportation
constitute a single employer under the Act. The companies
have the same officers, directors and ownership, HERE Local
274 (Warwick Caterers), 282 NLRB 939, 944 (1987), are fi-
nancially dependent on each other, Neighborhood Roofing, 276
NLRB 861, 867 (1985); have common labor relations, and are
performing essentially the same work. Towne Ford Sales, 270

26 The record also revealed that Respondent employed from 9–24 in-
dividuals listed as management on its payroll. The record is uncertain
as to the classifications or job titles of most of these individuals, other
than a strong inference that some of them were dispatchers. It is un-
clear if dispatchers are in the unit. I note that the calculations of work
force under General Extrusion, supra, do not include supervisors or
other nonunit personnel. Permaneer California Corp., 175 NLRB 348,
348–349 (1967).
27 The record as noted is unclear as to the number of classifications
hired by Respondent as of February 5. Thus, Respondent “hired” only
drivers as of that date. The contract also mentions helpers and mechan-
ics as included in the unit. Clearly, Respondent did not hire any me-
chanics until it began servicing clients on February 26. The record is
silent as to whether Respondent hired any helpers. Mattera did admit
that it hired Keith Stewart as a “road supervisor,” a classification not
specifically mentioned in the contract. He also admitted that Respon-
dent considered Stewart to be a unit member, and the records reveal
that dues have been deducted from his salary. Thus it appears that
Respondent had not employed 50 percent of the job classifications at
the time of the recognition.
DEDICATED SERVICES 763
NLRB 311 (1984). However, a single-employer finding be-
tween the entities does not end the inquiry.
The issue is whether the employees of Respondent constitute
an accretion to the unit of Dedicated Transportation employees,
represented by Local 713. Warwick Caterers, supra. Indeed,
this issue would be no different, if the NYCTA had not re-
quired Dedicated Transportation to form a new corporation to
perform the access-a-ride work, and if Dedicated Transporta-
tion had signed the contract with Local 713. The issue still is
whether the unit of employees performing access-a-ride work is
an accretion to the unit of employees of Dedicated Transporta-
tion, performing similar but not access-a-ride work, at a differ-
ent location. The relevant principles and standards in evaluat-
ing the accretion doctrine is detailed by the Board in Frontier
Telephone of Rochester, 344 NLRB 1270, 1271 (2005):
The fundamental purpose of the accretion doctrine is
to “preserve industrial stability by allowing adjustments in
bargaining units to conform to new industrial conditions
without requiring an adversary election every time new
jobs are created or other alterations in industrial routine
are made.” NLRB v. Stevens Ford, Inc., 773 F.2d 468, 473
(2d Cir. 1985). However, because accreted employees are
absorbed into an existing bargaining unit without an elec-
tion or other demonstrated showing of majority status, the
accretion doctrine’s goal of promoting industrial stability
places it in tension with the right of employees to freely
choose their bargaining representative. Accordingly, the
Board follows a restrictive policy in applying the accretion
doctrine. Safeway Stores, 256 NLRB 918 (1981); and
Wackenhut Corp., 226 NLRB 1085, 1089 (1976). One as-
pect of this longstanding restrictive policy, which was re-
cently restated in E. I. du Pont [de Nemours & Co., 341
NLRB 607 (2004),] has been to permit accretion “only
when the employees sought to be added to an existing bar-
gaining unit have little or no separate identity and share an
overwhelming community of interest with the preexisting
unit to which they are accreted.” Supra at 608 quoting
Ready Mix USA, Inc., 340 NLRB 946, 954 (2003).
In determining, under this standard, whether the requi-
site overwhelming community of interest exists to warrant
an accretion, the Board considers many of the same factors
relevant to unit determinations in initial representation
cases, i.e., integration of operations, centralized control of
management and labor relations, geographic proximity,
similarity of terms and conditions of employment, similar-
ity of skills and functions, physical contact among em-
ployees, collective-bargaining history, degree of separate
daily supervision, and degree of employee interchange.
E. I. Du Pont, supra at 608; Compact Video Services, 284
NLRB 117, 119 (1987). However, as stated in E. I. du
Pont, the “two most important factors”—indeed, the two
factors that have been identified as “critical” to an accre-
tion finding—are employee interchange and common day-
to-day supervision. SuperValu Stores, 283 NLRB 134,
136 (1987), citing Towne Ford Sales, 270 NLRB 311, 312
(1984). [Footnotes omitted.]
Further, the Board supported by the courts has repeatedly
observed that “when the relevant considerations are not free
from doubt, . . . it would seem more satisfactory to resolve such
close questions through the election process rather than seeking
an addition of the new employees by a finding of accretion. As
a general note the accretion doctrine should be applied restric-
tively since it deprives the new employees of the opportunity to
express their desires regarding membership in the existing
Unit.” Westinghouse Electric v. NLRB, 440 F.2d 7, 11 (2d Cir.
1971); Archer Daniels Midland Co., 333 NLRB 673, 675
(2001); Save-It Discount Foods, 263 NLRB 689, 693 (1982);
and Westwood Import Co., 251 NLRB 1213, 1220 (1980).
Thus, in sum, in order to prevail in its accretion defense, Re-
spondent must demonstrate both that its employees have little
or no separate group identity, and thus cannot be considered to
be a separate appropriate unit and the community of interest
between the employees and the existing unit, i.e., Dedicated
Transportation is overwhelming. Baltimore Sun v. NLRB, 257
F.3d 419, 427 (9th Cir. 2001); Archer Daniels Midland, supra;
and Safeway Stores, 256 NLRB 918 (1981).
Here, Respondent has fallen for short of meeting its heavy
burden of proving either prong of the Safeway Stores test. I
note initially that the parties did not treat Respondent’s em-
ployees as an accretion to its existing unit. There is no after
acquired clause in Dedicated Transportation’s contract with
Local 713. Judge & Dolph, supra at 182. Rather, Respondent
decided to negotiate a separate contract with Local 713 cover-
ing its employees, with several significant differences from the
Dedicated Transportation contract.28 Further, Respondent
agreed to recognize Local 713, based on alleged authorization
cards, to be obtained by Local 713, and not based on its exist-
ing contract covering the Queens Village location of Dedicated
Transportation.29 I, therefore, find that this conduct by the
parties substantially detracts from any possible contention that
the Respondent’s employees were properly accreted to the ex-
isting unit. Paper Products & Miscellaneous Union Local 27
(Combined Container Corp.), 209 NLRB 883, 887 (1974).
Further, there can be little doubt that Respondent has failed
to rebut the presumptive appropriateness of a single-facility
unit, and that Respondent’s employees may constitute a sepa-
rate appropriate unit. Save-It Discount Foods, supra at 694,
695; Melbet Jewelry Co., 180 NLRB 107, 109 (1969).
The employees of Respondent all work out of the Richmond
Hill facility, performing access-a-ride work for the NYCTA,
using NYCTA vehicles. They perform no work at Dedicated
Transportation’s facility, and there is no evidence of any day-
to-day interchange or temporary transfers between Respon-
dent’s employees and Dedicated Transportation employees.
Moreover, there is no evidence that day-to-day supervision of
Respondent’s employees is performed by anyone other than
Respondent’s supervisors. I, therefore, conclude that Respon-

28 These differences included wages, seniority, and health benefits.
29 As I have found above, although the recognition agreement recited
that Local 713 had obtained a majority of authorization cards from
employees of Respondent, in fact the Union had not yet obtained any
signed cards, and indeed told Mattera that the recognition agreement
was merely an agreement to allow Local 713 to organize Respondent’s
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD764
dent’s facility is a separate appropriate unit, and on that basis
alone, Respondent’s accretion defense fails.
Furthermore, Respondent has also failed to establish the sec-
ond requirement to find a valid accretion, that Respondent’s
employees share an overwhelming community of interest with
Dedicated Transportation employees. Frontier Telephone of
Rochester, supra. Many of the same factors described above, in
assessing the appropriateness of a single-facility unit where
Respondent’s employees work, are relevant to this issue as
well. There is absolutely no evidence that there is any func-
tional integration between the operations of Respondent and
that of Dedicated Transportation. The employees operate sepa-
rate vehicles, service different accounts, and do not interact
with each other in the performance of their duties.
The most important two factors, relied upon the Board in as-
sessing this issue, which are considered to be “critical” to an
accretion finding, are employee interchange and common day-
to-day supervision. Frontier Telephone of Rochester, supra at
1271. Here, Respondent has failed to establish the existence of
either factor.30 As to interchange, there is no evidence of any
day-to-day or temporary interchange, i.e., no evidence that
Respondent’s employees and the employees of Dedicated
Transportation ever fill in for each other. Frontier Telephone
of Rochester, supra. In this regard, the Board regards perma-
nent transfers to be less significant indication of interchange
than temporary transfers. Id. at 1272; Novato Disposal Sys-
tems, 330 NLRB 632 fn. 3 (2000).
As for permanent transfers, Respondent employed two trans-
ferees from Dedicated Transportation as part of its initial com-
plement of 10 employees, and there is no evidence of any trans-
fers from Respondent to Dedicated Transportation. There were
five and seven additional transferees from Dedicated Transpor-
tation to Respondent, but it is questionable whether they should
be considered, since they occurred after the recognition. Fron-
tier Telephone of Rochester, supra at 1272 fn. 8. In any event,
even considering the permanent transfers, they are not substan-
tial considering the number of employees employed by Re-
spondent, and in view of the absence of any temporary trans-
fers. I conclude that the evidence falls well short of establish-
ing significant interchange between Respondent’s employees
and those of Dedicated Transportation. Id. at 1272; Judge &
Dolph, supra at 183–185.
The second critical element necessary to find a lawful accre-
tion, common day-to-day supervision, also has not been estab-
lished. Respondent employs separate supervisors and dispatch-
ers,31 and the record reveals no evidence of any common super-
vision between the companies, other than the fact that Mattera
is the president of and in overall charge of both entities. How-
ever, such overall control by the president, does not establish
the day-to-day supervision necessary to find a lawful accretion.

30 I note that Respondent, as the proponent the affirmative defense of
accretion, has the burden to establish the existence of facts leading to
the conclusion that an accretion is warranted.
31 While the record is unclear whether or not the dispatchers are su-
pervisors under the Act, the record does reveal that Respondent consid-
ered them to be part of management, and that dues were not deducted
from their salaries for Local 713.
Frontier Telephone of Rochester, supra at 1272–1273; and
Towne Ford Sales, supra at 312.
While Respondent is correct that the evidence establishes
that the skills, functions, and working conditions of the em-
ployees of Respondent and Dedicated Transportation are simi-
lar, these facts are insufficient to find a lawful accretion, in the
absence of the two critical factors detailed above, temporary
interchange and common day-to-day supervision. Frontier
Telephone of Rochester, supra; Towne Ford Sales, supra.
Accordingly, I conclude that Respondent has not established
either that its employees cannot be considered a separate ap-
propriate unit, or that the community of interest between its
employees and the existing unit of Dedicated Transportation
employees is overwhelming. In such circumstances, its accre-
tion defense fails.
Respondent also argues in this regard that a “relatively small
group of 10 employees was lawfully accreted into the already
existing, larger unit of thirty eight employees, pursuant to the
collective bargaining agreement between Local 713 and Dedi-
cated Transportation.”
Again, I cannot agree with Respondent’s assertion. It is true
that the Board has consistently held that accretion determina-
tions are based on facts existing at the time of the accretion,
Frontier Telephone of Rochester, supra at 1272 fn. 8, or the
time that the Union makes a demand for recognition or for in-
clusion in an existing contract. Ready Mix USA, Inc., 340
NLRB 946, 954 (2003); Brooklyn Hospital Center, 309 NLRB
1163, 1182, 1183 (1992); GHR Energy Co., 294 NLRB 1011,
1052 (1989); and Gould Inc., 263 NLRB 442, 446 (1982).
However, these cases arise in contexts different from the in-
stant case, and in my view are not dispositive here. I am in
agreement with the General Counsel, that in the circumstances
of this case, it is not appropriate to consider the issue of the
numbers of employees employed by Respondent vis-á-vis
Dedicated Transportation, as of the date of the recognition.
Rather, I believe that the significant date in assessing the accre-
tion issue, should be the same date as used for evaluating ma-
jority status, when Respondent employed a representative com-
plement of employees. I note that to assess the accretion issue
based on the facts solely at the time of the recognition, would
not be feasible here, since the recognition was agreed upon,
prior to Respondent having started even its training of employ-
ees and prior to having paid any employees. Therefore, it
would not be possible to evaluate any of the factors, necessary
to decide the accretion issue, such as functional integration of
operations, interchange, common supervisors, or similar skills
and working conditions, unless one considers how Respondent
operated its business, subsequent to the recognition. Since as I
have detailed above, Respondent did not employ a representa-
tive complement until December, when it employed over 100
employees, that is the appropriate date to utilize, to compare the
number of employees to the Dedicated Transportation work-
force. Save-It Discount Foods, supra at 695. (Board relies in
part on fact that employer recognized the union and agreed to
extend contract to the new store, before a representative com-
plement was employed there, in concluding that no accretion
was established.)
DEDICATED SERVICES 765
The cases cited above, which appear to be contrary to this
finding,32 all arise in different contexts and are clearly factually
distinguishable from the instant matter, since they do not in-
volve prehire recognition, or issues of representative comple-
ment. In fact, a close examination of the facts and the Board’s
reasoning in Gould, supra, the case most often cited for the
proposition that accretion issues must be decided on the basis
of facts on the date of the demand reveals support for my con-
clusion. Gould involved an 8(a)(1) and (5) allegation, where
the union, based on an accretion argument demanded that the
employer recognize it as the representative of a newly trans-
ferred operation into the facility, where the union represented
the employees. When the employer first started the new opera-
tion at the facility on September 30, 1977 (CFC was the new
operation. Die Cast was the existing unit), it employed 7 CFC
employees, and 16–20 Die Cast employees in performing work
previously performed by CFC employees. At that time Die
Cast employed 79 employees in the unit, represented by the
union.
During the early months of its operation at the facility, there
was significant amounts of interchange and common supervi-
sion between the two groups, and the number of hourly em-
ployees in Die Cast substantially out numbered the number of
hourly employees in CFC.
However, over the next several months, these facts changed,
and the employer began hiring more CFC employees. By May
25, 1978, when the union made its demand that the employer
recognize it and add the CFC employees to the existing unit of
Die Cast employees, there were 148 CFC employees and only
60 Die Cast employees. The employer had also made other
operational changes by May 1978, and no interchange had oc-
curred between the groups for over 4 months.
On these facts, the Board rejected the General Counsel’s
contention that the employer violated Section 8(a)(1) and (5) by
refusing to recognize the union as the representative of the CFC
employees. The General Counsel argued that since when the
employer commenced its operations at the facility, it employed
substantially more Die Cast employees than CFC employees,
and for the first few months of its operations, there was exten-
sive interchange, common supervision, and integration between
the two groups, that the obligation to bargain with the union
matured at that time, based on an accretion theory.
The Board disagreed, and concluded that the issue of
whether the CFC employees constituted an accretion to the Die
Cast unit must be determined on the facts as they existed on the
date of the union’s demand. The Board reasoned as follows:
Further, and significantly, by the Union’s May 25,
1978, bargaining demand, there were 148 hourly CFC em-
ployees and only 60 hourly Die Cast employees. The
number of employees the Union desired to add to the certi-
fied unit at that time thus overshadowed that existing unit
by more than two to one. And the same or a greater ratio
of CFC to Die Cast employees continued thereafter until
April 1979 when the Die Cast operation terminated.

32 Frontier Telephone, supra; Brooklyn Hospital, supra; Ready Mix,
supra; GHR Energy, supra; and Gould, supra.
Consequently whatever indicia of accretion existed at
the inception of CFC’s Tampa operations are counterbal-
anced by subsequent events demonstrating the separate
identity of Die Cast’s and CFC’s respective operations.
The favorable ratio of Die Cast to CFC employees that ini-
tially obtained was reversed after a relatively short period
of time. This shift in the comparative sizes of the two op-
erations, together with the development of separate lines
of organization and supervision, and the concurrent phas-
ing out of Die Cast and the resulting diminution of its em-
ployment complement outweigh the elements which
briefly favored a finding of accretion. Id. at 446.
The Board added that “an accretion finding at the point
urged by the General Counsel would be premature,” Id. and
added a footnote emphasizing that “at the time General Counsel
claims that an accretion occurred, CFC was operating with a
relatively small number of employees in proportion to the size
of the complement it employed when the Union demanded
recognition and bargaining,” Id.
Therefore, I conclude that this reasoning of the Board in
Gould, supra, supports my conclusion that in the circumstances
of this case, the appropriate date to measure which group of
employees predominate, in assessing accretion, is the date
when Respondent employed a representative complement of
employees in December, and not as Respondent contends, on
February 5 when its operations had not even begun.
Having so concluded, Respondent employed over 100 em-
ployees in the unit at that time, while the unit to which it asserts
accretion is warranted, consisted of 38 employees. This factor
militates heavily against a finding of accretion. Renaissance
Center Partnership, 239 NLRB 1247, 1248 (1979); and
Worcester Stamped Metal Co., 146 NLRB 1683, 1685–1686
(1964).
I emphasize that notwithstanding my conclusions above,
with regard to the appropriate date for measuring accretion
here, my ultimate decision would not change. Even if I were to
agree with Respondent, that the accretion issue must be decided
solely on facts as of February 5, resulting in a finding of accret-
ing 10 employees into a unit of 38, I would still not find the
accretion defense to be established.
Thus, the number of employees accreted is but one factor to
be considered, and in view of the absence of evidence of the
critical factors in assessing accretion, such as interchange and
common day-to-day supervision, as well as functional integra-
tion, Respondent has not established its defense, even if Febru-
ary 5 is considered the appropriate date for assessing the issue.
Frontier Telephone of Rochester, supra. (No accretion found,
based on absence of interchange and common day-to-day su-
pervision, even though there was evidence of functional inte-
gration, both groups worked at the same facility, and at the time
of accretion, 120 employees were accreted to existing unit of
600.) Id. at 1293.
Based on the foregoing analysis and authorities, I conclude
that Respondent has fallen far short of establishing its accretion
defense. Since it is clear based on my findings above, that
Respondent prematurely recognized Local 713, at a time when
Local 713 did not represent an uncoerced majority of employ-
ees, it has thereby violated Section 8(a)(1) and (2) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD766
Further, when Respondent executed collective bargaining
with Local 713 on May 1, containing a union-security clause, it
has violated Section 8(a)(1), (2), and (3) of the Act. I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 731 and Local 1181 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By directing and urging its employees or applicants for
employment to sign cards authorizing Local 713 to represent
them and authorizing dues for Local 713 to be deducted from
their salary, and by informing its employees and applicants for
employment, that they had to sign such cards in order to be
employed by it, Respondent has violated Section 8(a)(1) and
(2) of the Act.
4. By recognizing Local 713 as the collective-bargaining rep-
resentative of its employees, on February 5, 2007, notwith-
standing the fact that Local 713 did not represent an uncoerced
majority of Respondent’s employees, Respondent has violated
Section 8(a)(1) and (2) of the Act.
5. By executing a collective-bargaining agreement with Lo-
cal 713, on May 1, which agreement contained a union-security
clause, notwithstanding the fact that Local 713 did not repre-
sent an uncoerced majority of Respondent’s employees, Re-
spondent has violated Section 8(a)(1), (2), and (3) of the Act.
6. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
and take certain affirmative action designed to effectuate the
policies of the Act. Having found that Respondent unlawfully
recognized and entered into a collective-bargaining agreement
on May 1, 2007, I shall recommend that Respondent withdraw
and withhold all recognition from the Local 713 as a collective-
bargaining representative of its employees, and order Respon-
dent to cease applying to its employees the terms of the collec-
tive-bargaining agreement, or any extension, renewal, modifi-
cation, or superseding agreement,33 unless or until the Respon-
dent Union is certified by the Board as such representative.
I shall also recommend that the Respondent reimburse its
employees, present and former, for dues and initiation fees
involuntarily exacted from them as a result of the unlawful
application of the union-security clause in the Respondents’
collective-bargaining agreement, with interest to be computed
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).

33 Nothing in this decision should be construed as requiring Respon-
dent to rescind benefits conferred as the result of the unlawful applica-
tion of contract provisions to them, see, e.g., Frontier Telephone of
Rochester, supra at 1278 fn. 24; Kaiser Foundation Hospitals, 343
NLRB 57, 58 (2004).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Dedicated Services, Inc., Richmond Hill,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Directing or urging its employees or applicants for em-
ployment, to sign cards authorizing Local 713, International
Brotherhood of Trade Unions International Union of Journey-
man and Allied Trades (Local 713) to represent them or author-
izing dues for Local 713 to be deducted from their salary.
(b) Informing its employees or applicants for employment,
that they had to sign cards authorizing Local 713 to represent
them or to have dues for Local 713 deducted from their salary,
in order to be employed by Respondent.
(c) Recognizing Local 713 as the exclusive collective-
bargaining representative of its employees at its Richmond Hill
facility, at a time when Local 713 does not represent a majority
of such employees.
(d) Entering into and enforcing collective-bargaining agree-
ments with Local 713 containing union-security and dues-
checkoff provisions.
(e) Enforcing and/or giving effect to the collective-
bargaining agreement with Local 713; provided, however, that
nothing in this Order shall authorize or require the withdrawal
or elimination of any wage increase or other improved benefits
or terms and conditions of employment that may have been
established pursuant to the performance of that collective-
bargaining agreement.
(f) In any like or related 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 effec-
tuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 713 as
the exclusive collective-bargaining representative of its em-
ployees, unless and until said labor organization has been certi-
fied by the Board as the exclusive representative of such em-
ployees.
(b) Reimburse, with interest as provided in New Horizons for
the Retarded, 283 NLRB 1173 (1987), all present and former
employees for all initiation fees, dues, and other moneys paid
by them or withheld from them pursuant to the terms of dues-
checkoff and union-security provisions of the collective-
bargaining agreements between the Respondent and Local 713.
(c) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DEDICATED SERVICES 767
in electronic form, necessary to analyze the amount of money
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
Richmond Hill, New York facility, copies of the attached notice
marked “Appendix.”35 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees

35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 5,
2007.
(e) 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.