First Student, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2007

02-RC-023169 (N.L.R.B. Jun. 27, 2007)

JD(NY)–28–07
Pine Bush, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FIRST STUDENT, INC.
Employer
and Case No. 2−RC−23169
LOCAL 445, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Petitioner
Peter B. Ajalat &
Ebonee Hamilton Lewis Esqs.,
Counsel for the Employer
Donald Sapir &
Christina Fahrbach Esqs.,
Counsel for the Petitioner
DECISION ON OBJECTIONS AND CHALLENGES
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in May 2007. The
petition was filed on December 13, 2006 and pursuant to a Stipulated Election Agreement
approved by the Regional Director on December 22, 2006, a secret ballot election was held on
January 24, 2007. The parties agreed that the voters would consist of employees employed no
later than December 16, 2006 in the following unit:
All full-time and regular part-time drivers and monitors employed by the
Employer at and out of its facility located at 5 Main Street, Pine Bush,
New York, but excluding all other employees, including office clerical
employees, dispatchers, mechanics/technicians, yardmen, and managers
and guards, professional employees, and supervisors as defined in the
Act.
The tally of ballots showed that of approximately 168 eligible voters, 81 ballots were cast
for the Union, 72 were cast against and 9 ballots were challenged.
Based on the entire record in this case including the demeanor of the witnesses and
after considering the briefs of the parties, I make the following findings and conclusions.
I. The Challenges
Prior to 2004, the Company was a family owned school bus company operating in
Westchester and Orange Counties, New York. In 2004, the owners, the Robertsons, sold the
Company to First Student, Inc., a national enterprise performing school bus services throughout
the country.
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The Union and First Student Inc. have some kind of neutrality agreement and over the
last few years there have been numerous Board elections at different locations. As far as I
know, those elections have basically involved bus drivers and monitors.
In the present case, the stipulated election agreement included full-time and regular part-
time bus drivers and monitors as eligible voters. At the same time, the agreement excluded all
office clerical employees and dispatchers. The problem is that there is a group of six employees
who spend part of their regular workweeks driving or monitoring buses and part of their week
doing office clerical functions. This group included Sherry Napolitano, Kathy Atkinson, Joellyn
Bedford, Patricia Finn, Diana Dickinson and Ruth Richner. In the case of Atkinson and Richner,
they drive part of the day and come in alternatively to do dispatching work from about 4 p.m. to
6:00 p.m.
The parties offered no evidence to show that during the discussions leading up to the
execution of the Stipulated Election Agreement that they mutually intended to include or exclude
the above named individuals from the voting unit. I suspect that as the unit was around 170
employees, there was little if any thought given to these six individuals, whose votes would not
likely have affected the outcome of the election. As there is no extrinsic evidence to show the
parties’ intent, the resolution of their voter eligibility should be based on whether they have a
community of interest with the employees whom both sides had agreed were in the unit. Laneco
Construction Systems, Inc., 339 NLRB 1048 (2003). 1 In this connection, the case law would be
that dealing with dual function employees. See for example, Berea Publishing Co., 140 NLRB
516 (1963) and Wilson Engraving Co., 257 NLRB 333 (1980).
I note that the Union needs to show only that one of the challenged voters was ineligible
in order for it to win the election. If only one of the challenges is upheld, then the remaining
challenges would not be sufficient in number to affect the outcome of the election. For even if
the other ballots were opened and even if those individuals all voted against the Union, the
revised tally of ballots would be 81 votes for the Union and 80 against.
With that in mind, let’s turn to Judy Studwell.
The evidence shows that on December 4, 2006, Judy Studwell came in off the street,
(apparently without being accused of trespass), asked for a job and filled out an employment
application. At that time, she was told that if her background check was positive and she
passed the physical and drug tests, she could start work as a monitor on December 13.
Sampson again met with Studwell on December 11 and she was sent on the following
day to Middletown to take a physical test and a drug test. She passed.
On Wednesday, December 13, Studwell came to the office and essentially was given an
orientation program by Sampson and Joellyn Bedford. This consisted of a number of things,
including giving her the employee handbook; having her review a manual; and testing her on
whether she understood and remembered its contents. In addition, she was shown two different
school buses, their accessories and how they were used. For example, Sampson

1 The Union offered to prove that in past elections involving stipulated election agreement containing
identical language, employees who drove buses and worked in the office, did not vote. I rejected this
offer of proof because the facts offered would not prove the existence of an “agreement” and would also
involve taking evidence regarding the factual circumstances of numerous other locations.
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demonstrated to Studwell how to use the wheel chair lift and how to use the four-point system to
hold a wheel chair in place. She was shown how to use the emergency equipment and the
emergency exits. She was shown how to check to make sure that no students were left on a
bus at the end of the day. She was shown how to check the tail lights and reverse lights so that
these were operational when the bus left the facility. Additionally, Joellyn Bedford gave her a
physical endurance/dexterity test that involved, among other things, a requirement that she be
able to drag a 150 pound dummy from the back of the bus to the front. After showing Studwell
how all these items had to be done, Studwell was required to demonstrate that she could do
these functions on her own. To the very limited extent that on December 13, Studwell did any of
the functions that would be required of her when she started to accompany children on the
buses, this was not, in my opinion, actual bargaining unit, but simply the required demonstration
that she had learned how to do these functions. Indeed anything that she did in relation to a
school bus on this date would have to be repeated by another employee before the bus was
allowed to leave the yard.
At the end of this session, Sampson asked Studwell if she could start to work on
December 15. Studwell replied that she could not begin until the following week. In fact,
Studwell did not actually start to work as a school bus monitor until December 19, 2006.
Although there is some question as to whether the Employer decision to pay Studwell for
the three hour orientation session came about only after the election when it became apparent
that her vote might make a difference, I don’t think that I need to resolve that question.
To be eligible to vote in a Board election, an employee must be in the appropriate unit on
the established eligibility date, (in this case no later than December 16, 2006) and in employee
status on the date of the election. See, for example, Plymouth Towing Co., 178 NLRB 651
(1969); Greenspan Engraving Corp., 137 NLRB 1308 (1962); Gulf States Asphalt Co., 106
NLRB 1212 (1953); Reade Mfg. Co., 100 NLRB 87 (1951); Bill Heath, Inc., 89 NLRB 1555
(1949); Macy's Missouri-Kansas Division v. NLRB, 389 F.2d 835 (8th Cir. 1968); and Beverly
Manor Nursing Home, 310 NLRB 538 fn. 3 (1993).
Further, unless absent for reasons specified in the direction of election, the employee
must be employed and working on the established eligibility date. Roy N. Lotspeich Publishing
Co., 204 NLRB 517 (1973). Those reasons would include, vacation, temporary layoff status, and
military service. NLRB v. Dalton Sheet Metal Co., 472 F.2d 257 (5th Cir. 1973); Amoco Oil
Corp., 289 NLRB 280 (1988); Schick, Inc., 114 NLRB 931 (1956); Barry Controls, 113 NLRB 26
(1955).
In this case, the question is when did Studwell become an employee for purposes of
being eligible to vote? Was it on Wednesday, December 13, when she had her orientation
training? Or was it on Tuesday, December 19, when she actually started performing her job as
a school bus monitor and therefore commenced doing bargaining unit work?
In order to be an eligible voter, an employee must be "hired and working." Employees
who are hired on the eligibility date but do not report for work until a later date are ineligible to
vote. Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973); Greenspan Engraving Corp., 137
NLRB 1308, at 1311 (1962). Also, employees who have been hired but are participating in
"training, orientation, and other preliminaries" are not considered to be working and are not
eligible to vote. NLRB v. Tom Wood Datsun, 767 F.2d 350 (7th Cir. 1985); Speedway
Petroleum, 269 NLRB 926 fn.1 (1984); F & M Importing Co., 237 NLRB 628 (1978).
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In discussing this issue, the Board in CWM, Inc., 306 NLRB 495 (1992), made the
following comments:
It is settled that to be eligible to vote in a Board conducted election, the
employee must be employed and working on the eligibility date, unless
the employee is absent for one of the reasons set out in the Direction of
Election…. The Board defines “working” under this “hired and working”
requirement as meaning “actual performance of bargaining unit work,”
excluding “participation in training, orientation or other preliminaries.” …
The Board’s so-called pre-work rule has two purposes: it operates as a
prophylactic against an employer’s manipulation of an election by hiring
employees favorable to its position just prior to the election, and it
provides a simple and fair means of determining whether newly hired
employees are part of the bargaining unit….
In CWM, Inc., the Board held that that certain challenged employees were eligible to
vote because they had completed a five day training course, had actually been assigned to start
work on the eligibility date, but had been precluded from so doing because of the inadvertent
failure to have adequate safety equipment.
In Dyncorp/Dynair Services, 320 NLRB 120, (1995), the Board concluded that an
individual who was already employed by the Employer and who was promoted to a mechanic’s
position, was eligible to vote in a unit of airframe and power plant mechanics even though on
the eligibility date, he was engaged in training for that job. Citing CWM, supra, the Board
stated:
In addition, the Board distinguished the comprehensive 5-day training
program the challenged voters completed in CWM from the “mere
orientation and preliminaries” at issue in Emro Marketing and F. & M.
Importing, supra. Finally, in CWM, the Board held that the employees were
“working in the unit” and eligible to vote “no later than” the time they were
assigned to their jobs on Friday afternoon.
An examination of the cases reveals that the Board has consistently held
that in order to be “employed during the payroll period” and be eligible to
vote, an employee must perform unit work during the payroll period, unless,
of course, the employee is absent for certain specified reasons. Here, Heras’
on-the-job training on March 6 and 7 consisted of his actually performing the
duties of an A & P mechanic, thus distinguishing this case from F. & M.
Importing and Emro Marketing, in which the challenged voters’ training
consisted of “mere orientation and preliminaries” and they performed no unit
work. (Footnotes omitted).
In the present case, I conclude that Studwell’s activities on December 13, 2006
consisted of “mere orientation and preliminaries.” She did no work in the normally accepted use
of that term. To the extent that she performed any tasks, it was to repeat what she was shown
and thereby demonstrate that she had learned how to do the functions shown to her by
Sampson and Bedford. It certainly was the Employer’s hope that Studwell would start work on
December 15. But this was not possible for Studwell and she did not commence doing any
bargaining unit work until Tuesday, December 19.
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In light of the above, and irrespective of whether Studwell was paid for the time she
spent in orientation, I conclude that she was not an eligible voter because she did not start
working as an employee until after the eligibility date. I therefore recommend that her ballot
remain unopened and that a revised tally of ballots be issued showing that 81 votes were cast
for the Union, that 72 votes were cast against the Union and that the remaining challenges are
insufficient in number to affect the outcome of the election. 2
II. The Objections
The Employer asserted that union representatives harassed and attempted to intimidate
managers by confronting them at their place of work and following them when they left the work
place.
Cara Robertson testified that on one occasion in November 2006, as she was leaving a
meeting with employees at the Pinebush fire house, Dean Phinney said; "I hope you're not
telling any lies about me or anything like that." She testified that when she ignored him and
continued walking, he called her a “bitch.” He denied this.

2 If necessary, I would conclude that Sherry Napolitano, Kathy Atkinson, Joellyn Bedford, Patricia
Finn, Dian Dickenson and Ruth Richner were eligible voters. Although they all do clerical or dispatching
functions on a part-time basis, they also drive or act as monitors on a regular basis. There is no evidence
that any of these people have any supervisory authority as defined in Section 2(11) of the Act. Nor does
the evidence show that Napolitano acts as a confidential employee who should be excluded. (The mere
fact that Napolitano deals with payroll or benefit issues or that she has access to employee personnel
records does not make her an excluded confidential employee. Ladish Co., 178 NLRB 90 (1969). These
individuals have common wages and benefits with the other employees and they are, in my opinion, dual
function employees who do not act as supervisors or otherwise perform functions that would put them in a
potentially adverse relationship with the bargaining unit employees.
In the case of Gerald Schwarz, I think that the evidence is more ambiguous. He stopped working
as a driver at the end of June 2006 and did not return until January 2007. (The evidence does not show
that he was placed on any kind of official leave of absence). On one hand, he apparently told Cara
Robertson that he was leaving because he couldn’t earn more than a certain sum due to a social security
limit and expected to return after the end of the year. On the other hand, he told a co-worker that he had
bought a house in North Carolina and that he expected to leave New York and move once the new house
was completed. As of June 2006, I suspect that Schwarz did not quite know himself what his plans were.
In my opinion, he was equally of a mind to move permanently to North Carolina while leaving himself
open to returning to work if things did not work out. From Robertson’s point of view, I suspect that
Schwarz’s plans were irrelevant inasmuch as the evidence shows that the Company can always use a
qualified driver. On balance, I think that the evidence would tend to show that Schwarz, at the time he left
in June 2006, had less than a 50% expectation that he would return to work. Thus, as his expectation to
return was not particularly high, I would conclude that when he returned to work in January 2007, he did
so as a new employee who was hired after the eligibility date and therefore was not an eligible voter.
Similarly, I would find Judy Day was not an eligible voter. She had a knee operation in May 2006
and originally expected to return in August 2006. However, her injury persisted and she could not resume
her job. Thus, to the extent that one could consider that she was on disability leave when she first left to
have her operation, her circumstances drastically changed when she failed to recover. Additionally,
because of the care she gave to her ill husband, she did not return to being a driver until the end of
January 2007. Moreover, upon her return, she worked only on a sporadic basis. (During the week
ending February 2, 2007 she was paid for 10.3 hours. From the week ending February 10, 2007 to the
week ending March 10, 2007, she worked a total of 1.5 hours). Thus, after her return, Judy Day did not
work on a full-time or even on a regular part-time basis and therefore should not be considered as a full-
time or regular part-time driver. For these reasons I conclude that as of the eligibility date or even by the
election date, Judy Day, who had a persistent injury, a sick husband, and a condition called sleep apnia,
did not expect to return to work as a full-time or regular part-time employee. And in fact, she never did.
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According to Robertson’s testimony, this entire transaction occurred before the instant
petition was filed and therefore cannot be the basis for overturning the election even if true.
Dollar Rent-A-Car, 314 NLRB 1089 (1994). Moreover, the incident itself, consisting of mere
name calling does not, in my opinion, amount to objectionable conduct.
Robertson also testified that in early January 2007, as she was getting gas for her car, a
short lady with dark hair, whom she believed to be a union organizer, yelled; “Cara we love you,
we respect you.” Assuming that this was an attempt at sarcasm, I cannot conclude that it was
objectionable.
The Employer offered testimony that in early January, Dean Phinney and another union
organizer entered the office, and while holding Robertson’s office door open, delivered a letter
while she or an another employee told them that they were trespassing. While Dean Phinney is
indeed a very large man, I think that the Employer is making a mountain out of molehill. There is
no evidence that either Phinney or the other union representative made any threats or engaged
in any conduct that could be viewed by any reasonable person as being violent or aggressive.
The evidence shows that he merely came to deliver a letter; that he did so and that the union
representatives left within a minute of making the delivery. Nothing in this transaction is
deemed by me to amount to objectionable conduct. See for example, Genesis Health Ventures
of West Virginia L.P., d/b/a Ansted Center, 326 NLRB 1208, 1214-1215 (1998) and Edward J.
DeBartolo Corp., 313 NLRB 382 (1993).
The Employer also asserted that the Union engaged in objectionable conduct by issuing
a leaflet shortly before the election that advertised that certain employees, without their
permission, would vote in favor of representation.
The evidence shows that prior to the election, the Union solicited employees to sign
petitions that stated:
School Bus Workers
UNITED
YES
I’m voting to have a voice in our working standards at First Student
by voting for Teamster representation on January 24.
On or about a day or two before the election, the Union distributed flyers that stated:
On January 24, 2007
WE’RE VOTING YES
For Teamsters Local Union 445
The leaflet indicated that it was supported by 97 named employees.
In support of this objection, the Employer called Patrick Casale, William Grohman and
Carol Shields to testify about the leaflet. In the cases of Grohman and Shields, although they
testified that they did not authorize the Union to place their names on the leaflet, they conceded
that they had signed the petition described above. In the case of Casale, he testified that he did
not sign such a petition, although the Union did produce a petition with a signature that could
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have been signed by Casale. 3 Moreover, the Union presented two credible witnesses who
testified that Casale had indeed given his permission for the Union to use his name so long as
the leaflet was not distributed until shortly before the election.
The credible evidence shows that the Union’s leaflet was supported by petitions signed
by employees whose names appeared on the leaflet. It therefore is clear to me that the Union
acted with the explicit or implicit authorization of those employees. Moreover, even if there had
been no such authorization, the Union’s conduct, at worst, could be construed merely as a
misrepresentation and not the kind of conduct that would warrant overturning the election. See
Champaign Residential Services, 325 NLRB No. 126 (1998) where the Board stated:
The Employer excepts to the hearing officer's recommendation that
Objections 1, 4, 6, and 7 be overruled, arguing that the hearing officer erred by
failing to apply the standard for objectionable campaign propaganda enunciated
in Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984). We
find that, even under the court's analysis in Van Dorn, the Petitioner's circulation
of a flyer with 68 photocopied signatures of unit employees under a heading
stating in part “We are winning! Join Us!” was not objectionable. Under Van
Dorn's interpretation of Midland National Life Insurance Co., 263 NLRB 127
(1982), the document here does not constitute a forgery, as it was clear from the
face of the flyer that it emanated from the Petitioner and, with one exception, the
signatures on the flyer matched those submitted by employees on the Petitioner's
“Vote Yes!” petitions. Further, we find no evidence that the flyer involved
misrepresentations “so pervasive and deception so artful that employees will be
unable to separate truth from untruth . . . [so that] their right to a free and fair
election would be affected.” Id. at 345. In this regard, the record shows that
misrepresentations in the gathering and compilation of the signatures were
minimal. As the hearing officer found, all employees who signed the petition
knew or should have known that their signatures indicated their support for the
Union and all but two knew or should have known that their signatures would be
shared with other voters. We conclude that such minor deviation from a perfect
recording of employee sentiment does not constitute the type of deception which
concerned the court in Van Dorn.
There being no other evidence that could conceivably support the Employer’s objections,
I hereby recommend that they be overruled. 4

3 Having examined Casale’s license, it is not clear to me if the signature on the petition and the
signature on his license are the same or different.
4 The Employer cited NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742, 749 (6th Cir., 1999) where
the Court of Appeals reversed a Board decision denying the employer an evidentiary hearing on
objections concerning the union’s creation and dissemination of “forged campaign flyers” that allegedly
misrepresented that employee signatures would be placed on petitions “only for the purpose of getting an
election,” and not to signify that they would vote “yes”. I am bound to follow Board law and as the Board’s
jurisdiction is nationwide in scope, it is not bound to follow the ruling of a single Circuit Court that may
disagree with the Board’s view of the law.
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Conclusions of Law
1. The Union has not engaged in any objectionable conduct warranting setting aside the
election.
2. Judy Studwell, not having been employed and working in a bargaining unit job by the
eligibility date, was not eligible to vote and her ballot should remain unopened and uncounted.
3. The challenged ballots, not being sufficient in number to affect the outcome of the
Election, a revised Tally of Ballots should be issued and a Certification of Representative should
be issued to the Union.
ORDER
The representation case should be remanded to the Regional Director of Region 2 for
the purpose of issuing the appropriate Certification.
Dated, Washington, D.C., June 27, 2007.
_____________________
Raymond P. Green
Administrative Law Judge