First Transit

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2010

15-CA-019494 (N.L.R.B. Dec. 30, 2010)

JD–73–10
Baton Rouge, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FIRST TRANSIT, INC. Case No. 15-CA-19494
and
HAROLD PERRY, An Individual
Charles R. Rogers, Esq., for the General Counsel.
Shirlyce M. Ammons, Esq., San Antonio, Texas, for the Respondent.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Baton Rouge,
Louisiana, on November 8, 2010. Harold Perry filed the initial charge in this matter on March 30,
2010. The General Counsel issued the complaint in this case on August 19, 2010, alleging that
Respondent, First Transit, Inc., disciplined Perry, issued him excessive attendance points and
then terminated Perry’s employment because he engaged in protected concerted activity and
because he assisted the Union, Amalgamated Transit Union, Local 1546.
The Complaint also alleges that Respondent violated the Act by threatening employees
with termination and creating the impression that their union and/or protected concerted
activities were under surveillance.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact
I. Jurisdiction
Respondent, First Transit, Inc. is a nation-wide corporation providing transportation. It
has a facility in Baton Rouge, Louisiana from which it provides bus service to Louisiana State
University. Respondent derives gross revenues in excess of $250,000 at its Baton Rouge
location and purchases and receives materials from points outside of Louisiana that are valued
in excess of $5,000 at that location. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Amalgamated Transit Union, Local 1546, “the Union,” is a labor organization within the meaning
of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Events leading up to Harold Perry’s termination
Harold Perry has been a bus driver for 29 years. Some or all of his career has been
spent driving buses for companies servicing Louisiana State University (LSU). Prior to July 14,
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2009, Perry worked for Capital Area Transit (CATS), which had a contract with LSU to provide
bus service. On July 14, 2009, Perry became an employee of Respondent, which took over the
LSU bus service on that date.1
Shortly after he was hired, Perry became a supervisor, but was demoted sometime in
the fall of 2009. He had been a member of the Union while employed by CATS and sometime
in the fall passed out union authorization cards at Respondent’s facility and circulated a petition
on behalf of the Union. This was common knowledge at the facility and Respondent does not
claim that it was unaware of Perry’s support and activities in support of the Union.
Among the services Respondent provided in relation to its contract, was the
transportation of spectators to and from LSU home football games. In this regard, William
Waters, Respondent’s Assistant General Manager in Baton Rouge, had a conversation with
Perry on Perry’s bus on or about November 5, 2009. Waters told Perry that he had heard that
Perry had been passing a list around to organize a boycott by Respondent’s drivers of work for
the upcoming LSU football game. Driving for the LSU games was voluntary, Tr. 33, 76.2
Perry denied this and said he was compiling a list of employees who wanted union
representation. According to Perry, Waters said he didn’t give a damn about a union, Tr. 37-38.
Perry testified that when he showed Waters the list of names he was compiling, Waters told him
that boycotting the game would be considered insubordination and that Perry could lose his job
as a result.
Waters’ account of the conversation is not materially different than Perry’s account. He
testified that a couple of drivers approached him and told him that Perry was encouraging them
not to work for the upcoming LSU football game. Several hours later he asked Perry about
these reports and Perry denied telling other drivers not to work the next game. Perry showed
Waters a clipboard with a list of employees’ names and said he was trying to sign people up for
a union. Waters then testified that he didn’t care whether employees joined a union or not and
so informed Perry.
There is no need to make any credibility determinations in this case about the
conversation on the bus. Perry’s testimony that Waters told him that he didn’t give a damn about
a union in the context of this case is the equivalent of stating that he was indifferent to whether
or not employees organized. There are no alleged expressions of anti-union animus in this
record.
Respondent has a corporate “Freedom of Association” policy which states that
management will not make derisive comments about unions, will not advise employees to vote
against union representation or intimidate or harass employees engaged in organizing activity,
R. Exh. 1. Many of its facilities other than the one in Baton Rouge are organized.
On December 23, 2009, Respondent terminated Harold Perry on the grounds that he
had accumulated more than ten attendance points within a floating 90-day period, as provided

1 Respondent offered Perry employment in a letter dated June 25. Respondent’s
employees were in training between July 14 and August 1, 2009, when Respondent
commenced servicing LSU.
2 There may have been some unhappiness amongst the drivers because they were off the
clock 2 hours for lunch when working the LSU football games, which may have been a change
from CATS’ policy.
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in its Absenteeism Policy. Pursuant to that policy as in effect in December 2009, an employee
received 1 attendance point if less than five minutes late to work or failed to complete more than
half of his or her shift. An employee was supposed to receive 2 attendance points if more than
5 minutes late, but less than 30 minutes late. An employee was supposed to receive 4
attendance points for a “No Show, No Call, Miss Out,” which was defined as a situation in which
the driver failed to show up for a shift without notifying Respondent, or arrived more than 29
minutes late. Three consecutive days of ”No Show, No Call” was supposed to result in
termination.
Respondent kept track of employees’ attendance, albeit very haphazardly, on an
“employee attendance report.” In most examples that are in this record, the top half of this
document was filled out by one of Respondent’s three dispatchers. The dispatcher checked
one of five boxes, which characterizes the employee’s failure to show up on time as either an
absence, tardy, failure to complete entire shift, No Call/No Show or Sick. The bottom half of the
form was filled out by a manager who assessed points and added up the accrued number of
points. However, as the General Counsel’s brief points out, in Harold Perry’s case the top half
of his November 15 attendance report was filled out by then General Manager Catherine Utt
and some of the bottom half of his December 23 report was filled out by dispatcher Jackie
Martin.
On September 13, 2009 Harold Perry arrived at work 1 hour and ten minutes late. He
was marked tardy by the dispatcher and assessed one attendance point. If Respondent’s
attendance policy had been applied correctly, he should have been assessed 4 points.
On November 6, Perry arrived at work 10 minutes late. He was marked as tardy and
assessed zero points because he was given credit for good attendance. Respondent contends
that had it applied its policy correctly, Perry should have received another point (2 points minus
1 credited point).
On November 15, Perry was 20 minutes late. He received 2 more points.
On December 7, Perry called in sick at 5:08 a.m., 52 minutes before the start of his shift.
He was assessed 4 points.
On December 12, Perry overslept and missed his shift entirely. He was assessed 2
attendance points, which Respondent submits is consistent with Respondent point system.3
On December 23, Perry overslept and called the dispatcher at 6:04 a.m.4 It is unclear
whether Perry was required to be at work by 5:45 or by 6:00 a.m. His uncontradicted testimony,
which I credit, is that he told the dispatcher, Jackie Martin, that he was putting his uniform on
and was seven minutes away. Perry’s termination letter states that his shift “pulled out” at 6:15
a.m.5

3 There appears to be an ambiguity or incongruity either in Respondent’s point system or its
application. I do not understand why Perry was assessed 4 points for his December 7 absence,
but only 2 for his December 12 absence—unless Perry reported to work late on December 12.
It appears that Perry called the dispatcher at 6:00 a.m. on December 12 to inform her that he
had overslept. There is no evidence in the record as to whether or not he worked that day.
4 Perry’s testimony that he called in at 6:04 is corroborated by the dispatcher’s notes and his
termination letter, Exh. G.C. – 2.
5 Martin no longer works for Respondent and did not testify.
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According to Perry’s uncontradicted testimony, Martin told him that she had an extra
man for his route. He asked her if he could come in and work “something else.” Martin said he
could not do so and that he should come and talk to Steve Vacek, Respondent’s safety director,
when Vacek arrived at work, Tr. 41.
Perry called Martin again at about 6:11 to ask if there was work he could perform.
Martin said no, that he should come in to Respondent’s facility when Vacek arrived.
Respondent assessed Perry 4 attendance points for a total of 12 points within the prior 3
months. If Perry had been allowed to report, as he requested, he should have only been
assessed 2 points.6
At about 9:00 a.m. on December 23, Perry arrived at Respondent’s facility and went to
Vacek’s office. There he met with Vacek and Casey Lewis, who had become Respondent’s
Assistant General Manager on December 14.7 Vacek presented Perry with a termination letter
signed by Lewis and told Perry he was being terminated for excessive absentee points.
I do not credit Lewis’ testimony at Tr. 79-80 as to how the decision to terminate Perry
was made. While Lewis signed the termination letter, it is apparent from Perry’s account of his
conversation with Jackie Martin, that Vacek had some involvement in the decision. Vacek
apparently no longer works for Respondent and did not testify.
Lewis also testified that he consulted with Catherine Utt in deciding to terminate Perry.
Utt was the General Manager of Respondent’s Baton Rouge operations from August at least
through December 23, 2009. Lewis did not testify as to what he discussed with Utt. It is
probable that Utt was aware that Perry may have tried to organize a boycott of LSU games. It
would be highly unlikely that Waters would not have mentioned this to her. Utt no longer
worked for Respondent at the time of the instant hearing and did not testify.
Finally, Lewis may have been aware of Respondent’s suspicions regarding Perry,
through conversations with Waters, Utt, Vacek and/or others. He testified that he was unaware
of Perry’s efforts to organize employees. He did not testify that he unaware that Respondent’s
managers had heard rumors that Perry was organizing a boycott.
Moreover, from Perry’s uncontradicted testimony, I infer that Respondent was “laying in
wait” to find a reason to terminate Perry. The fact that dispatcher Martin filled in much of section
two of the employee attendance report, which was apparently not the normal practice, suggests
as much. Given the disparity in the scrutiny Respondent gave to Perry’s tardiness and
absences, as compared to the lack of attention given to attendance violations of other
employees, I infer that at least some of the people involved in the decision to terminate Perry
were aware that he may have trying to organize a boycott of the LSU games.

6 The process by which Respondent calculated points is very confusing. By my calculation,
Perry should have been assessed 13 points within the 3 months prior to his discharge, if
Respondent’s attendance policy had been applied correctly. Respondent, in G.C. 4, contends
Perry earned 17 points. However, Perry’s September 13 tardiness was more than 3 months
prior to his discharge, and thus should not be included in his 90 day total.
7 Lewis apparently replaced William Waters as Assistant General Manager. Waters went to
another of Respondent’s locations on December 18, but returned as General Manager in Baton
Rouge on May 15, 2010. Thus, in December 2009, Lewis and Waters worked together in Baton
Rouge for only four days.
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Respondent concedes that its dispatchers made numerous errors in deciding which box
to check on the employee attendance report and that its managers made numerous errors in
assessing and adding up attendance points. It contends these errors were not discriminatorily
motivated but were rather simply honest mistakes.
Evidence of Disparate Treatment
As of December 23, 2009 there were several of Respondent’s employees whose
attendance records in the prior three months were as bad as, or worse than that of Harold
Perry. They were not assessed the correct number of attendance points per Respondent’s
attendance policy. If the points had been assessed correctly, each of these employees would
have had more attendance points than Perry and should have been terminated if Respondent’s
attendance policy was enforced uniformly.
Respondent became aware that its system for characterizing absences and tardies and
assessing attendance points was riddled with errors. It contends that it became aware of this
fact when reviewing the attendance policy in approximately June 2010, Tr. 87, 92. I infer that
this review was related to the instant litigation. Upon discovering these errors, Respondent
“refreshed everybody’s points” to zero. However, it did not offer to reinstate Perry, nor is there
any evidence that it terminated other employees who had accumulated more than 10
attendance points within a 90 day period in the fall of 2009.
Tina Smith
The most glaring example of the disparate treatment concerns Tina Smith, who even
with Respondent’s errors had accumulated more attendance points in the month of November
2009 than Perry did in the 90 days prior to his termination. Respondent concedes that Smith
had accumulated 16 points between September 14, and November 20, GC Exh. 4. However,
its calculation is incorrect. The employee attendance report dated November 30, 2009, GC
Exh. 3, establishes that by November 30, Respondent had assessed Smith 22 attendance
points. There is no evidence that Respondent took any disciplinary measures against Smith.
GC Exhibit 3 shows the following with regard to Tina Smith:
On November 10, Smith missed work and was assessed 3 points (4-1 pt. good
attendance credit. She apparently had been assessed one attendance point previously.
On November 12, Smith was 40 minutes late to work and was assessed 1 point (2- 1pt.
credit).
On November 16, Smith was 23 minutes late and was assessed 1 point giving her a
total number of points of 6.
On November 17, Smith did not show up for work and was assessed 4 points. William
Waters totaled her number of points at 10, which should have led to her termination under
Respondent’s policy.
On November 19, Smith was seven minutes late. Waters assessed her 1 point and
added up her number of points as 11.
On November 20, Waters assessed Smith 1 point for showing up 8 minutes late and
calculated her total number of points at 12.
On November 23, Waters assessed at least 2 more points for a total of 14.
On November 24, Smith was a No Call/No Show. Waters assessed another 4 points for
a total of 18.
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On November 30, Smith was again a No Call/No Show. Waters assessed another 4
points for a total of 22.8
Thus, even allowing for Respondent’s errors, it had assessed Tina Smith far more points
just in the month of November 2009 than it assessed Harold Perry when it fired him.
Alvin Grosserand
The record shows the following with regard to the attendance of employee Alvin
Grosserand between August 25, and September 23, 2009. For those instances for which
Grosserand was not assessed attendance points, the record does not contain an employee
attendance report, but contains a stipulation of the parties, Tr. 12-13.
On August 25, Grosserand was 5 minutes late and received no points.
On August 26, Grosserand was 5 minutes late and received no points.
On August 31, Grosserand was 2 hours late and received 1 point; pursuant to
Respondent’s policy he should have received 4.
On September 9, Grosserand was 17 minutes late and received no points.
On September 11, Grosserand was 4 minutes late and received no points.
On September 16, Grosserand was 9 minutes late and received no points.
On September 21, Grosserand was 30 minutes late and received no points.
On September 22, Grosserand was 15 minutes late and received 1 point; he should
have received 2.
On September 23, Grosserand notified Respondent that he was not coming to work 15
minutes before his shift started. He was assessed 4 points.
There is no explanation in the record as to why Grosserand was not assessed
attendance points on so many occasions. On September 23, William Waters had calculated
Grosserand’s total number of points as 6. Had Respondent even assessed one point for all the
other occasions in the prior month that Grosserand was late, he would have had at least 12
points, enough for termination in accordance with Respondent’s attendance policy. If assessed
in accordance with Respondent’s attendance policy, Grosserand had accumulated 16 points
within one month.
Ethel Finley
On September 30, 2009, Ethel Finley was 10 minutes late and received 1 point.
On November 13, Ethel Finley was 5 minutes late and received no points.
On November 16, Ethel Finley was 13 minutes late and received 1 point.
On November 18, Ethel Finley was 6 minutes late and received no points.
On January 5, 2010, Ethel Finley was 9 minutes late and received either 1 or 2 points.9
The employee attendance report of January 5, was signed by Casey Lewis, the
Assistant Manager who terminated Perry, GC Exh. 5.

8 The parties’ stipulation at Tr. 13-14 that Smith did not receive any attendance points for not
showing up at work on November 23, 24 and 30, is simply incorrect, G.C. Exh. 3.
9 I find that Exh. G.C. 5, Respondent’s recitation of the number of points assessed for
January 5, is ambiguous.
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On January 7, Ethel Finley was 18 minutes late and received no points.
On January 11, Ethel Finley was 8 minutes late and received no points.
On January 29, Ethel Finley was 5 minutes late and received no points.
From this it is apparent that Respondent was not looking as closely at Finley’s
attendance history as it did at Perry’s. Between November 13, and January 29, Finley had
earned more than 10 points and should have been terminated if Respondent was strictly
enforcing its attendance policy.
Denise Williams
On September 9, 2009, Denise Williams was 9 minutes late and received 1 point,
instead of 2 as called for in Respondent’s attendance policy.
On October 7, Denise Williams was 2 hours and 30 minutes late and received 1 point,
instead of 4.
On October 13, Denise Williams missed work completely and received 2 points, instead
of 4.
On October 27, Denise Williams was 60 minutes late and received 2 points, instead of
4.10
On November 10, Denise Williams was 5 minutes late and received no points.
On November 13, Denise Williams was 8 minutes late and received no points.
On November 16, Denise Williams was 35 minutes late and received 1 point, instead of
4.
On November 24, Denise Williams was 8 minutes late and received no points.
On December 1, Denise Williams was 9 minutes late and received no points.
On December 11, Denise Williams was 12 minutes late and received 1 point.
On January 10, 2010, Denise Williams was 12 minutes late and received no points.
Thus, in accordance with Respondent’s attendance policy, Williams should have been
terminated both before and after Perry was discharged. Not only did Respondent not keep track
of Williams’ attendance record very well, but on its employee attendance reports for her, it did
not keep on running total of the points assessed, as it did for Perry. Williams apparently
abandoned her job in February 2010.
Analysis
Harold Perry’s termination
As stated previously, Respondent terminated Perry’s employment on December 23,
2009. The General Counsel alleges that Respondent did so because it believed that Perry, on
or about November 5, 2009, asked employees to engage in a work stoppage by telling them not
to work on Saturday in protest of Respondent’s pay system and to discourage employees from
engaging in these or other concerted activities. The General Counsel also alleges that
Respondent terminated Perry because he assisted the Union and to discourage other
employees from doing so.
I find that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging
Harold Perry for union activity. On the other hand, I find that it violated Section 8(a)(1) for
discharging Perry for its belief that he tried to encourage other employees not to work for a

10 The stipulation at Tr. 13 is incorrect with regard to this date, G.C. Exh. 6
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Saturday LSU football game. Assuming that Perry testified truthfully that he did not try to
organize such a boycott, Respondent violated the Act for discharging Perry in material part for
its mistaken belief that he did so, Gulf-Wandes Corporation, 233 NLRB 772, 778 (1977). Since
working during LSU football games was voluntary work, encouraging other employees not to
sign up for this work and does not constitute an unlawful partial strike, and constitutes concerted
activity protected by Section 7 of the Act, The Dow Chemical Company, 152 NLRB 1150, 1151
(1965).
In order to establish that a discharge violated Section 8(a)(1), the Board generally
requires the General Counsel to make an initial showing sufficient to support an inference that
the alleged discriminatee’s protected conduct was a ‘motivating factor’ in the employer’s
decision. Then the burden shifts to the employer to demonstrate that the same action would
have taken place even in the absence of protected conduct, Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 889 (lst Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983) ; American Gardens
Management Co., 338 NLRB 644 ( 2002).
I have found that Perry either engaged in protected concerted activity or that
Respondent, by William Waters and possibly others, suspected that he had done so. As stated
previously, I find that at least some of the management officials involved in Perry’s termination
were aware that Perry may have tried to organize a boycott of the LSU home football games.
That Respondent harbored animus towards Perry’s protected concerted activity is
established by Waters’ statement to Perry in November that soliciting employees to boycott the
upcoming LSU game constituted insubordination and might cost Perry his job. The causal
relationship between Perry’s protected conduct and his discharge, as well as Respondent’s
animus towards his protected concerted activity, is established by the disparate manner in
which Respondent treated Perry’s attendance violations compared with that of other employees
who also should have been terminated if Respondent had been enforcing its attendance policy
in a nondiscriminatory fashion.11
I do not credit Respondent’s nondiscriminatory explanation of why Perry was treated
differently than other employees with similar or worse attendance records. There is no
explanation, for example, why Respondent’s dispatcher, Jackie Martin, immediately seized upon
the number of points Perry had accumulated when he called in at 6:04 a.m. on December 23. I
infer that management had told Martin to keep track of Perry’s points, while it did not do so with
regard to other employees. The change in Assistant General Managers does not explain the
heightened scrutiny to Perry’s attendance record. Assistant General Manager Casey Lewis who
testified that he discharged Perry, apparently paid no attention to Ethel Finley’s attendance
record when she reported late on 4 different occasions in January 2010.
Similarly, there is no explanation for Respondent’s refusal to allow Perry to report to
work late on December 23. Other employees, including Tina Smith, Alvin Grosserand, Ethel
Finley and Denise Williams were allowed to work after reporting to work as much as 2 hours
late.

11 Respondent suggests that any finding of discriminatory motive is negated by the fact that
it could have terminated Perry on December 7, for accumulating 10 points within 90 days, but
did not do so. I reject this argument because there is no evidence that Respondent was aware
that Perry had accumulated 10 points until December 23.
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Finally, I infer discriminatory motive from Respondent’s failure to offer to reinstate Perry
when it discovered that it had treated him disparately and the very precipitous manner in which
Perry’s discharge was effected, see, Levi Strauss & Co., 172 NLRB 732, 741-44(1968).
Other Alleged Violations
Paragraph 8 of the complaint alleges that Respondent violated the Act by issuing
attendance points and/or excessive attendance points to Perry on November 15, 2009 and
December 7, 12 and 23. While I do not find that Respondent discriminatorily issued Perry more
points than he should have received on those dates, I do find that Respondent violated Section
8(a)(1) in assessing attendance points on these dates because it was enforcing its policy
against Perry more strictly than it had prior to its awareness of his protected concerted activity
and more strictly than it was enforcing this policy with respect to other employees.
The complaint also alleges that Respondent threatened employees with termination and
created an impression among its employees that their union and/or protected activities were
under surveillance by Respondent in violation of Section 8(a)(1) of the Act. There is no
evidence to support the allegation regarding surveillance and it is dismissed.
I credit William Waters’ testimony that a couple of drivers told him that Perry was
organizing a boycott of the LSU games. There is no evidence indicating any other source for
Waters’ belief. If Perry was not organizing a boycott, he would not have assumed that Waters’
was spying on him and thereby discovered such false information. On the other hand, if Perry
had spoken to other drivers about not volunteering for the LSU games, it is more likely that he
would have assumed that another driver told this to Waters, as opposed to Waters actively
seeking information about protected concerted activity on the part of Perry. In either case, I find
that Waters’ conduct does not amount to surveillance that violates Section 8(a)(1), SKD
Jonesville Division L.P., 340 NLRB 101 (2003).
Regarding the alleged threat, Perry testified that William Waters told him in early
November 2009 that passing around a list in order to organize a boycott of Saturday work at the
LSU football games constituted insubordination and that Perry could lose his job as a result.
This testimony is uncontradicted. I have found that Perry was engaged in protected concerted
activity in urging such a boycott or that Respondent suspected that he was engaged in such
activity. Thus, I find that Respondent, by Waters, violated Section 8(a)(1).
The complaint also alleges that Respondent violated Section 8(a)(3) and (1) by issuing
discipline and excessive attendance points to Charging Party Harold Perry on four separate
dates. While Respondent made mistakes in assessing points for a number of employees, the
record establishes that Harold Perry was treated disparately particularly when compared to
Ethel Finley and Denise Williams. These two employees were not assessed any points on
several occasions when they should have been between November 2009 and January 2010.
Respondent has not offered any convincing explanation as to why Perry was assessed points
every time he showed up late from November 15 to December 23, while Finley’s and Williams’
tardiness was ignored on a number of occasions.
In the absence of an alternative explanation, I conclude that Respondent was keeping
closer tabs on Perry’s violations of its attendance policy, due to its animus emanating from its
belief that he may have tried to organize a boycott of Saturday work. Thus, I find that
Respondent violated Section 8(a)(1) in its assessment of attendance points to Perry.
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Conclusions of Law
1. Respondent violated Section 8(a)(1) by terminating Harold Perry’s employment on
December 23, 2010.
2. Respondent violated Section 8(a)(1) by enforcing its attendance policy against Perry
more strictly than it had prior to its awareness of his protected concerted activity and more
strictly than it enforced this policy with respect to other employees.
3. Respondent violated Section 8(a)(1) of the Act by telling Perry that organizing a
boycott of voluntary work constituted insubordination and that this could cost him his job.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Harold Perry, it must make him
whole for any loss of earnings and other benefits, computed on a quarterly basis less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
compounded daily, Kentucky River Medical Center, 356 NLRB No. 8 (October 22, 2010) as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
The Respondent, First Transit, Inc., Baton Rouge, Louisiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging in
protected concerted activity.
(b) Telling any employee that he or she could be discharged for engaging in protected
concerted activity.
(c) Treating any employee in a disparate manner when enforcing its attendance policy if
that disparate treatment is related to activities protected by Section 7 of the Act.
(d) 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.

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Harold Perry whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him as specified in the remedy portion of this decision.
(b) Within 14 days from the date of the Board’s Order, offer Harold Perry full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Refreshing Harold Perry’s attendance points to zero.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Harold Perry’s unlawful discharge and within 3 days thereafter notify him in writing
that this has been done and that his discharge will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its Baton Rouge, Louisiana facility
copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by 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 employees employed by the Respondent at any time since
November 5, 2009.
In addition to physical posting of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.
(g) 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.

13 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–73–10
5
10
15
20
25
30
35
40
45
50
12
Dated, Washington, D.C., December 30, 2010.
____________________
Arthur J. Amchan
Administrative Law Judge
JD–73–10
Baton Rouge, LA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in concerted
activities for your mutual aid or protection
WE WILL NOT tell any employee that he or she is being insubordinate and may lose his or her
job for engaging in concerted activities for employees’ mutual aid or protection.
WE WILL NOT treat any employee in a disparate manner when enforcing our attendance policy
because that employee has engaged in concerted activities for employees’ mutual aid or
protection.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Harold Perry full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Harold Perry whole for any loss of earnings and other benefits resulting from his
discharge less any net interim earnings, plus interest compounded daily.
WE WILL refresh Harold Perry’s attendance points to zero.
JD–73–10
Baton Rouge, LA
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Harold Perry and WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be used against him in any way.
FIRST TRANSIT, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 South Maestri Place, 7th Floor
New Orleans, Louisiana 70130-3408
Hours: 8 a.m. to 4:30 p.m.
504-589-6361.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 504-589-6389.