Hillside Bus Corp.

National Labor Relations Board - Board Decisions

Jul 26, 1982

262 N.L.R.B. 1254 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hillside Bus Corp. and Mario De Fina and Electri-
cal, Production and Industrial Workers Union,
Local 118, International Union of Amalgamated
Novelty and Production Workers, AFL-CIO,
Party to the Contract
Hillside Bus Corp., Hunter Transit Corp. and Bell-
rose Bus Corp.' and Mario De Fina and Elec-
trical Production and Industrial Workers
Union, Local 118, International Union of Amal-
gamated Novelty and Production Workers,
AFL-CIO, Party to the Contract. Cases 29-
CA-7605, 29-CA-7658, 29-CA-7684, and 29-
CA-7685
July 26, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMElRMAN
On May 8, 1981. Administrative Law Judge Joel
P. Biblowitz issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief as did Respond-
ent and the Party to the Contract. Thereafter, both
Respondent and the Party to the Contract filed
reply briefs to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
We adopt the Administrative Law Judge's find-
ing that employee Mario De Fina was not dis-
charged in violation of Section 8(a)(3) and (1) of
the Act. The Administrative Law Judge, in assess-
ing whether the General Counsel had properly set
forth a prima facie showing that De Fina's protect-
ed conduct-the refusal to sign a Local 118 author-
ization card-was a motivating factor in Respond-
ent's decision to discharge him, apparently took
into consideration Respondent's defense in conclud-
ing that the General Counsel had not sustained his
initial burden. Pursuant to such an analysis, the Ad-
ministrative Law Judge found that De Fina was
not unlawfully discharged.
To establish a violation of Section 8(a)(3), it is
incumbent on the General Counsel to adduce evi-
dence supporting his contention that an employee
i Herein collectively called Respondent.
t In accordance with current Board practice, we shall modify the Ad-
ministrative Law Judge's recommended Order to include interest on any
moneys Respondent is required to reimburse to its employees.
262 NLRB No. 152
was unlawfully discharged. Should a prima facie
case of unlawful discharge be shown, the burden of
persuasion shifts to the respondent to establish a
lawful reason for the discharge. However, in as-
sessing whether a prima facie case has been present-
ed, an administrative law judge must view the
General Counsel's evidence in isolation, apart from
the respondent's proffered defense. It is only after
the General Counsel's prima facie requirement has
been met that an administrative law judge must
consider the respondent's defense.
Here, the Administrative Law Judge's considera-
tion of Respondent's evidence in assessing the Gen-
eral Counsel's prima facie case, though incorrect,
did not alter the ultimate outcome, with which we
agree. The General Counsel did meet his burden of
a prima facie showing sufficient to support an infer-
ence that De Fina's failure to sign an authorization
card was a motivating factor in Respondent's deci-
sion to discharge him. However, we agree with the
Administrative Law Judge's implicit finding that
Respondent sustained its burden by presenting per-
suasive evidence that De Fina would have been
discharged for reasons other than protected activi-
ties. See Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980).
Turning to the facts of the case, we do not agree
with our dissenting colleague that Respondent un-
lawfully discharged De Fina. Respondent had no
knowledge that De Fina had any dealings with
Local 1181. De Fina's protected activity-of which
Respondent was aware-consisted solely of refus-
ing to sign a Local 118 authorization card. Al-
though no specific finding was made by the Ad-
ministrative Law Judge, we would note that three
other employees were also threatened with dis-
charge if they did not sign Local 118 authorization
cards. None of those employees was subsequently
discharged. Essentially the same statement was
made to De Fina and the three employees; i.e., that
if the employees did not sign the cards they could
not work for Respondent.- While no specific
3 The following excerpts of testimony illustrate Respondent's pattern
of threatening employees.
Employee Patrick Morgan (whose father was also present during this
exchange) testified:
Q. At one point were you asked to sign a card for the union?
A. Yes, I was . . . I had come to work with my father, because
my father works for Hillside.
And that Monday morning that we both came into work the two
of us were issued cards by Richard Johnson.
And he told us that the cards had to be signed within a month or
otherwise we would be out of work.
Q. Did you ever have any discussion with Mr. Leibowitz about
any other unions?
Continued
1254
HILLSIDE BUS CORP.
reason was given to De Fina at the time of his dis-
charge, Respondent maintains that De Fina was
discharged "for repeated derelictions of his duties,"
not, as our colleague maintains, because he was late
for his run on November 14. Record evidence sup-
ports Respondent's contention.
We also disagree with our colleague's conclusion
that Respondent engaged in "overtly disparate
treatment" toward De Fina. The record reflects
that De Fina, in the past, had committed other
transgressions of a not insignificant nature, in addi-
tion to his alleged deliquency on the day of his dis-
charge. De Fina had been warned by Leibowitz
for his propensity to drive too fast and also for
other acts that evidenced a cavalier attitude toward
the transportation of school children. Evidence of
this latter characteristic is illustrated by the fact
that Sister Enid Story, a principal of one of the
schools serviced by Respondent, complained to the
Bureau of Education for the City of New York, in
addition to Respondent, of the poor service re-
ceived by students who were transported on buses
driven by De Fina. These acts were considered by
the Administrative Law Judge in reaching his con-
clusion. Given the limited nature of De Fina's pro-
tected activity, we find that Respondent would
A... . And he came on my bus to talk to me, I had just pulled
the bus in. And he told me that I would be foolish if I didn't go with
the 118 Union, and that if I didn't sign the card that after 30 days I
would be out of a job, and there would be no work.
Employee Jerry Cologna testified:
Q. Who asked you to sign a card?
Q. Was anyone else there when you spoke with Mr Johnson?
A. I came with two other drivers. He handed me a card and said,
"The majority of the men signed authonrization cards for Union 118."
And that if you didn't sign the card in 30 days you wouldn't be able
to work here.
Employee Mario De Fina testified:
Q. And was there some discussion'
A. [Leihowitz] handed me a card
Q. What happened then?
A. So I says to himn, "I wanted to take the card home and look it
over and check into it "
He says, "Well, you might as well sign it," he said, "I'll tell you
now, the majority signed it already."
Right after that, I said to him, I says, "Well, Larry, what happens
if I don't sign the card""
He says, "Well, you can't work for me."
That's exactly what he says
Despite Leibowitz' and Johnson':, denials that any of these conversa-
tions ever took place, the Administrative Law Judge stated, "I found
(Johnson's] testimony and that ;f I.eibowitz regarding the solicitation of
cards for Local 118 to be unbelie aible." Thus, although the Administra-
tive Law Judge did not directly resolve credibility with regard to these
specific events, with the exception of the De Fina-Leibowitz exchange,
he did make implicit credibility findings crediting Cologna and Morgan
over Leibowitz and Johnson Also, the excerpts reveal that essentially the
same statements were made to all of the employees. Thus, there was no
disparity in this regard with respect to De Fina vis-a-vis the other em-
ployees.
have taken the same action of discharging De Fina
even in the absence of protected activity. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hillside Bus Corp., Hunter Transit Corp. and Bell-
rose Bus Corp., Rockaway, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Reimburse its employees for all fees, dues,
or other moneys deducted from their pay for Local
118 pursuant to the provisions of the collective-bar-
gaining agreements entered into by Respondent
and Local 118 on October 29, 1979, or any subse-
quent collective-bargaining agreements entered into
by Respondent and Local 118, with interest on any
such moneys due the employees to be computed in
the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977) (see, generally, Isis Plumbing
d Heating Co., 138 NLRB 716 (1962)." s
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
Unlike my colleagues, I do not find that Re-
spondent has demonstrated that it would have dis-
charged Mario De Fina in the absence of his pro-
tected activity. Hence, I dissent from their dismiss-
al of the complaint allegation that Respondent vio-
lated Section 8(a)(1) and (3) by discharging De
Fina on November 14, 1979.
The majority specifically finds, properly, that the
General Counsel "did meet his burden of a prima
facie showing sufficient to support an inference that
De Fina's failure to sign an authorization card was
a motivating factor in Respondent's decision to fire
him." Such a finding in unavoidable here. Thus,
' We characterize De Fina's protected activity as being of a limited
nature only because Respondent had little knowledge of the extent that
De Fina was engaged in such activity. As noted. the Administrative Law
Judge specifically found, and our dissenting colleague shows no basis for
disputing, that Respondent's only knowledge of De Fina's protected ac-
tivity was its knowledge of his refusal to sign a Local 118 authorization
card. Clearly, Respondent was aware that other employees had also re-
fused to sign Local 118 authorization cards We agree with the Adminis-
trative Law Judge that Respondent violated the Act in its solicitation of
De Fins by Leibowitz to sign a Local 118 authorization card However,
we part ways with our dissenting colleague and agree with the Adminis-
trative Law Judge that De Fina was not discharged for engaging in this
single instance of protected activity of which Respondent was aware.
5 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Administrative Law Judge found that
"Leibowitz [Respondent's manager] had a consum-
mate hatred for Local 1181"; that De Fina had ac-
tively supported Local 1181; and that, just 2 weeks
before his discharge, De Fina had refused
Leibowitz' request that he sign an authorization
card for Local 118, which the Administrative Law
Judge found, properly, Respondent had unlawfully
supported. Indeed, the Administrative Law Judge
found, and my colleagues agree, that Respondent
violated the Act when Leibowitz solicited De Fina
to sign an authorization card for Local 118 and by
threatening De Fina with discharge if he failed to
sign a card.
Two weeks after Respondent unlawfully threat-
ened De Fina with discharge for failing to sign a
card supporting Local 118, De Fina was dis-
charged.
Despite the fact that De Fina's discharge fol-
lowed close on the heels of the unlawful threat to
discharge him, my colleagues adopt the Adminis-
trative Law Judge's "implicit finding" that Re-
spondent has sustained its burden of presenting per-
suasive evidence that De Fina would have been
discharged for reasons other than his protected ac-
tivities. 6 I disagree.
De Fina, a schoolbus driver, was discharged on
November 14, ostensibly because he arrived at the
garage a few minutes late for his route that day.
That De Fina would have been discharged for this
reason absent his protected activity is wholly at
odds with the credited record evidence.
The credited record evidence shows that De
Fina was not literally late on November 14. Re-
spondent claimed that De Fina was to pick up the
c My colleagues' discussion of the Administrative Law Judge's han-
dling of the De Fina allegation leaves unanswered questions as to the
basis for their decision. They point out, correctly, that the Administrative
Law Judge must view the General Counsel's evidence in isolation to de-
termine whether a prima facie case has been shown before considering
Respondent's proffered defenses. The Administrative Law Judge did not
consider the General Counsel's evidence separately, however, but found
no primafacie case on the basis of all the evidence. Thus, the Administra-
tive Law Judge dismissed the De Fina allegation because the "General
Counsel has not sustained his burden that De Fina's action in refusing to
execute the Local 118 authorization card was a 'motivating factor' in his
discharge." My colleagues reverse the Administrative Law Judge in part
by finding that a prima focie case for an 8(a)(3) discharge of De Fina has
been shown. Without further explanation, my colleagues then proceed to
agree with the Administrative Law Judge's "implicit finding" that Re-
spondent sustained its burden. In view of the Administrative Law Judge's
mishandling of the Wright Line test in evaluating the evidence, coupled
with his statement that he "reluctantly find[sl that the allegation that De
Fina was discharged in violation of Section 8(a)1I) and (3) of the Act
should be dismissed; reluctantly because of the extremely suspicious
nature of the discharge," it is not at all clear just what evidence my col-
leagues rely on to find that Respondent has sustained its burden of show-
ing that De Fina would have been discharged for reasons other than his
protected activity. See, for example, Litton Mellonics Systems Division, a
Division of Litton System. Inc., 258 NLRB 623 (1981). Hence. my dissent
proceeds on the basis that my colleagues agree with the Administrative
Law Judge's handling of the evidence where they have not otherwise in-
dicated.
children at 1:30 p.m., while the General Counsel
presented witnesses who testified that the dismissal
time was 2 p.m. The Administrative Law Judge re-
solved this dispute by finding that the dismissal
time was 2 p.m. While commenting that De Fina
should not have waited until the last minute to
arrive at the garage, the Administrative Law Judge
found that De Fina was not literally late. The.Ad-
ministrative Law Judge also credited De Fina's tes-
timony that De Fina told Leibowitz in their predis-
charge conversation that the pickup time was 2
p.m. Hence it is plain that the condition upon
which the alleged precipitating event for De Fina's
discharge is predicated was not as Respondent con-
tended and this knowledge must be imputed to Re-
spondent.
Any credence that remains of Respondent's
claim that it discharged De Fina because he was
late for his run on November 14, when Respondent
should have known he was not late, is shattered by
the undisputed record evidence of disparate treat-
ment. Thus, the record shows that, just 2 days after
De Fina's discharge, his replacement driver, Chan,
arrived 45 minutes after the children's dismissal
time at PS 197, but Chan was not disciplined.
My colleagues ski t the pretextual implications
that flow from Respondent's overtly disparate
treatment of De Fina and Chan by addressing in-
stead the nature and extent of De Fina's protected
activity. They point out that De Fina's protected
activity was solely his refusal to execute the Local
118 authorization card tendered to him by
Leibowitz. Despite the fact that they find that
Leibowitz' threat to discharge De Fina for his re-
fusal to support Local 118 violated Section 8(a)(l),
they excuse the overtly disparate treatment of De
Fina and Chan on the basis that the protected ac-
tivity that led to the threat is limited in scope.'
I am incredulous that my colleagues would char-
acterize De Fina's protected activity as being of a
limited nature. Refusing Respondent's demand to
support an employer-supported union under threat
of discharge is not only a courageous exercise of
Section 7 rights but also deserves the utmost sup-
port and protection by this Board. Indeed, my col-
leagues' downgrading of De Fina's protected activ-
ity is anomalous when compared with their treat-
' In so finding, my colleagues also rely on the Administrative Law
Judge's finding that Respondent took no retaliatory measures against
three other employees who refused to, sign authorization cards. They
have set forth the record testimony shy ving threats of discharge to em-
ployees Morgan and Cologna that are essentially similar to the threat to
De Fina. I agree that such threats are comparable and would find them
to be violative of the Act. But I do not agree with my colleagues that the
fact that Respondent carried out only one of the three threats of dis-
charge detracts from a finding that De Fina's discharge iiolated the Act.
Nor does this explain away Respondent's disparate treatment of De Fina
and Chan, supra.
1256
HILLSIDE BUS CORP.
ment of Respondent's other coercive solicitation of
authorization cards. Thus, they find, properly, that
Supervisor Johnson's solicitation of authorization
cards for a company-supported union violated Sec-
tion 8(a)(1) and (2) of the Act and that such con-
duct formed the predicate for Local 118's coerced
majority and for the finding that Respondent vio-
lated Section 8(a)(1) and (2) by signing a contract
with Local 118 and Section 8(a)(1) and (3) by in-
corporating a union-security clause in that contract.
In short, they recognize the serious implications of
Respondent's coercing employees to sign authoriza-
tion cards for a company-supported union and they
give appropriate remedies. By comparison, De Fina
was faced with not only a solicitation of a card for
a company-supported union but also a threat of dis-
charge by Respondent's president for refusing to
sign. Apparently my colleagues place a higher pre-
mium on yielding to coercion (Supervisor John-
son's "successful" coercive solicitations) than on
resisting the same coercion. Moreover, it is plain
that my colleagues' skirting of the pretextual impli-
cations of De Fina's disparate treatment by down-
grading his protected activity is misplaced, general-
ly. Thus, while disparate treatment can stand alone
as a factor indicating discriminatory motive, the
nature or extent of the protected activity cannot
explain or excuse disparate treatment.
Perhaps recognizing the fragility of its claim that
De Fina was discharged because he was late for a
pickup on November 14, Respondent trotted out a
host of other reasons for De Fina's discharge. It
cited a speeding ticket, an accident, reported reck-
less driving, and complaints about allegedly late
pickups at the schools. The credited evidence
shows, however, that the speeding ticket was dis-
missed, that De Fina's bus was standing still when
the accident occurred, and that the complaints
about De Fina's allegedly late pickups were predi-
cated on hearsay testimony which the Administra-
tive Law Judge did not assume to be true. Further-
more, as reported by the Administrative Law
Judge, the only admonition by Leibowitz to De
Fina regarding these "numerous incidents" was to
"slow down." De Fina was not otherwise repri-
manded or warned that his driving record might
lead to discipline or discharge. Moreover, all of
Respondent's concern over De Fina's alleged
unsafe driving habits is tempered by the fact that
Respondent continued to use De Fina to train new
drivers even after these alleged incidents had oc-
curred. And for the purposes of determining
whether De Fina's discharge was discriminatorily
conducted, it must be recalled that all of these inci-
dents, for which no warnings or threats of disci-
pline were given, occurred before Leibowitz unsuc-
cessfully sought to force De Fina to sign a card for
Local 118 and threatened De Fina with discharge
for his refusal to sign.
Thus, there is no evidence that Respondent had
a lawful reason for discharging De Fina on No-
vember 14. Instead, it is plain that Respondent
grasped at the first opportunity to carry out the un-
lawfully threatened discharge of De Fina and that
the stated reasons for De Fina's discharge are pre-
textual. Finally, even assuming that a lawful reason
existed for discharging De Fina, I do not find that
Respondent has established that it would have dis-
charged De Fina in the absence of his protected
activity, for the reasons described above.
In all other respects, I agree with my colleagues'
decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten to close our business
operations if our employees choose to be rep-
resented for purposes of collective bargaining
by Local 1181-1061, Amalgamated Transit
Union, AFL-CIO (Local 1181), or any other
labor organization.
WE WILL NOT assist or support Electrical,
Production and Industrial Workers Union,
Local 118, International Union of Amalgamat-
ed Novelty and Production Workers, AFL-
CIO (Local 118), or any other labor organiza-
tion, in obtaining union authorization cards
from our employees.
WE WILL NOT threaten employees with dis-
charge for failing to apply for membership in
Local 118, or any other labor organization, at
a time when that Union is not their lawful ma-
jority bargaining repesentative with a valid
union-security clause requiring membership in
that Union as a condition of employment.
WE WILL NOT recognize any contract with
Local 118, or any successor thereto, as the
representative of our employees for the pur-
pose of collective bargaining unless and until
said labor organization has been certified by
the National Labor Relations Board as the ex-
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clusive bargaining representative of our em-
ployees.
WE WILL NOT give effect to, perform, or in
any way enforce our contracts with Local 118,
or any modifications, extensions, or renewals
thereof, or any other contracts, agreements, or
understandings entered into with said labor or-
ganization, or any successor thereto, relating
to grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms and
conditions of employment, unless and until
said labor organization has been certified by
the National Labor Relations Board as the ex-
clusive representative of our employees; pro-
vided, however, that nothing herein shall re-
quire us to vary or abandon any wages, hours,
seniority, or other substantive feature of our
relationship with our employees which we
have established in the performance of these
contracts, or prejudice the assertion by our
employees of any rights they may have there-
under.
WE WILL NOT give effect to checkoff au-
thorization forms executed by our employees
on behalf of Local 118 until said labor organi-
zation has been certified by the National
Labor Relations Board as the exclusive bar-
gaining representative of our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL reimburse our employees for all
fees, dues, or other moneys we deducted from
their pay pursuant to checkoff authorizations
signed by said employees, as provided for in
the collective-bargaining agreements we un-
lawfully entered into with Local 118 on Octo-
ber 29, 1979, or any modifications, renewals,
or extensions thereof, with interest on any
such moneys due our employees.
HILLSIDE BUS CORP., HUNTER TRAN-
SIT CORP. AND BELLROSE BUS CORP.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge: This
case was heard before me in Brooklyn and Rockaway,
New York, on September 15, 16, and 17 and October 1,
1980. A complaint was issued on January 10, 1980,
against Hillside Bus Corp., herein called Respondent
Hillside, based upon a charge (Case 29-CA-7605) filed
by Mario De Fina on November 15, 1979. An order con-
solidating cases, consolidated amended complaint, and
notice of hearing was issued on February 28, 1980,
against Respondent Hillside, Hunter Transit Corp.,
herein called Respondent Hunter, and Bellrose Bus
Corp., herein called Respondent Bellrose; at times Re-
spondent Hillside, Respondent Hunter, and Respondent
Bellrose will be referred to collectively as Respondents.
This consolidated amended complaint was based upon
further charges filed by De Fina: Case 29-CA-7658 on
December 19, 1979, and Cases 29-CA-7684 and 29-CA-
7685 on January 8, 1980. Basically, the consolidated
amended complaint alleges that Respondents are a single
integrated business enterprise; and that Respondents
threatened their employees with the cessation of oper-
ations and other reprisals if they became members of, or
supported, Local 1181-1061, Amalgamated Transit
Union, AFL-CIO, herein called Local 1181, and solicit-
ed and directed its employees to sign cards designating
Electrical, Production and Industrial Workers Union,
Local 118, International Union of Amalgamated Novelty
and Production Workers, AFL-CIO, herein called Local
118, as their respresentative for collective-bargaining
purposes, while at the same time threatening their em-
ployees with discharge and other reprisals if they failed
to sign cards on behalf of Local 118. The consolidated
amended complaint also alleges that Respondents dis-
charged and failed and refused to reinstate De Fina be-
cause he engaged in activities on behalf of Local 1181
and refused to sign a card on behalf of Local 118. Final-
ly, the consolidated amended complaint alleges that on
or about October 29, 1979, Respondents executed and
enforced collective-bargaining agreements (containing
union-security provisions) with Local 118, covering their
busdrivers and mechanics, despite the fact that Local 118
did not represent an uncoerced majority of these em-
ployees. All the above actions by Respondents are al-
leged to be in violation of Section 8(a)(l), (2), and (3) of
the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Hunter, Respondent Hillside, and Re-
spondent Bellrose are each New York State corporations
engaged in providing schoolbus service pursuant to con-
tracts that each has with the Board of Education of the
City of New York, herein called the Board of Education.
All the revenue derived by Respondents is pursuant to
these contracts. Each of Respondents maintains (or,
during the relevant period, maintained) a place of busi-
ness located at 260 Beach 116th Street, Rockaway, New
York, herein called the office, and at 85-15 Beach Chan-
nel Drive, Rockaway, New York, herein called the
garage.
Respondent Hillside, pursuant to its contract with the
Board of Education to provide schoolbus transportation,
received $231.25 per day for each of its five buses for
183 school days in the 1979-80 school year, or a total of
$211,593.75.
Respondent Hunter, pursuant to its contract with the
Board of Education to provide schoolbus transportation,
1258
HILLSIDE BUS CORP.
received $235 per day for each of its 17 buses for 183
school days in the 1979-80 school year, or a total of
$731,085.
Respondent Bellrose, pursuant to its contract with the
Board of Education to provide schoolbus transportation,
received $232.25 per day for each of its five buses for
183 school days in the 1979-80 school year, or a total of
$212,508.75.
Austin Leibowitz is the sole stockholder and president
of Respondent Hunter; Bonnie Milberg is the vice presi-
dent of Respondent Hunter. Rosalie Gruber is the sole
stockholder and president of Respondent Bellrose;
Martin Gruber, husband of Rosalie Gruber, is the sole
stockholder and president of Respondent Hillside; and
they are the only officers of Respondent Hillside and Re-
spondent Bellrose. Leibowitz, during the period in ques-
tion, was also manager for Respondent Bellrose and Re-
spondent Hillside. Milberg, in addition to her position as
vice president of Respondent Hunter, is operations man-
ager for all Respondents. The only other difference be-
tween the operations of Respondents is that Respondent
Hillside and Respondent Bellrose transport only handi-
capped (physically and emotionally) children in their
minibuses, while Respondent Hunter transports "normal"
children in its regular sized schoolbuses.
The evidence also establishes that the Board of Educa-
tion during the school year 1979 to 1980 purchased sup-
plies valued at approximately $5 million directly from
suppliers located outside the State of New York. More
specifically, counsel for General Counsel introduced doc-
uments into evidence establishing two purchases made by
the Board of Education during that period: the purchase
of paint in the amount of $328,777 from a supplier locat-
ed in New Jersey, which was delivered to the Board of
Education in New York, and the purchase of school fur-
niture in the amount of $136,264 from a supplier located
in Tennessee, which was delivered to the Board of Edu-
cation in New York.
Because Respondent Hillside and Respondent Bellrose
each received less than $250,000 during the period in
question it is necessary to determine whether Respond-
ents constitute a single integrated business enterprise.
Respondent Hunter pays the rent for the office and
garage; neither Respondent Hillside nor Respondent
Bellrose has its own office space or garage. Respondent
Hunter's officers and office employees (including
Leibowitz and Milberg) perform all of Respondent Hill-
side's and Respondent Bellrose's administrative and
office functions for which they each pay to Respondent
Hunter a management fee of $10,000 a year. Additional-
ly, Leibowitz hires and fires the employees of Respond-
ent Hillside and Respondent Bellrose, as well as the em-
ployees of Respondent Hunter, and spoke to all of Re-
spondents' employees in a speech he gave about their job
duties shortly before the school year began. No evidence
was adduced that any of the employees of Respondent
Hillside or Respondent Bellrose had ever met Martin or
Rosalie Gruber. Once a month the Board of Education
mails each of Respondents a check for services per-
formed pursuant to the contract each has with the Board
of Education; all of these checks are received by
Leibowitz at his office; and he deposits Respondent
Hunter's checks into his bank account and he deposits
Respondent Hillside's and Respondent Bellrose's checks
into their respective accounts for Martin and Rosalie
Gruber. Leibowitz testified that sometime between
March and September 1979, Martin and Rosalie Gruber
entered into an agreement with him (as discussed supra
and infra) for him to (in Leibowitz' words) "run their
company," to be the "overseer." Leibowitz testified that
the reason for this is that the schoolbus business is such a
competitive industry that employers in this industry com-
monly share people and facilities in order to cut costs.
Additionally, Leibowitz owns a gas station which pro-
vides gasoline to the buses of all Respondents.
Respondent Hillside and Respondent Bellrose each
own five minibuses; Respondent Hunter owns 17 regular
size schoolbuses. Respondent Hunter pays the rent for
the garage and Respondent Hillside and Respondent
Bellrose each reimburse it for five twenty-sevenths of the
cost of the rent; i.e. proportioned to the number of buses
owned by each. Because the minibuses of Respondent
Hillside and Respondent Bellrose are meant for handi-
capped students, there is no interchange between these
buses and the buses of Respondent Hunter. There is in-
terchange of employees among Respondents, however,
and, in fact, De Fina began his employ with Respondent
Hunter and, within a few weeks, he was transferred to
Respondent Hillside. Even after his transfer to Respond-
ent Hillside, on occasion he performed a run for Re-
spondent Hunter.
Richard Johnson, the dispatcher, acts in that capacity
for all Respondents. Respondent Hillside and Respondent
Bellrose each employ a mechanic; Respondent Hunter
employs a larger number of mechanics and if Respondent
Hillside or Respondent Bellrose requires one of Respond-
ent Hunter's mechanics, he will be lent to that Company
for the required time and Respondent Hillside or Re-
spondent Bellrose will reimburse Respondent Hunter for
the mechanic's time.
Respondents each signed separate identical collective-
bargaining agreements with Local 118. Johnson solicited
authorization cards for Local 118 from employees of all
Respondents, and all three agreements were given to
Leibowitz by a representative of Local 118.
The Supreme Court in Radio and Television Broadcast
Technicians Local Union 1264 v. Broadcast Service of
Mobile, Inc., 380 U.S. 255 (1965), set forth the criteria for
determining whether several nominally separate business
entities constitute a single integrated business enterprise:
interrelation of operations, common management, cen-
tralized control of labor relations, and common owner-
ship. It is clear that all these criteria, except the last one,
are present herein. Respondents all operated from the
same premises and with the same management;
Leibowitz handles labor relations policy for all Respond-
ents (as will be seen, infra, he discharged De Fins at a
time when he was employed by Respondent Hillside)
and there is an interrelation of operations in that employ-
ees (such as De Fina) transfer from one of Respondents
to another. Martin and Rosalie Gruber are as absentee as
owners could be-they do not even receive the checks
from the Board of Education, and it appears that they
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have never even met any of their employees. Although
they own Respondent Hillside and Respondent Bellrose
and Leibowitz owns Respondent Hunter, I find that all
three Respondents constitute a single integrated enter-
prise. Blumenfeld Theatres Circuit, a Partnership, et al.,
240 NLRB 206 (1979); Scalera Bus Service, Inc., 210
NLRB 63 (1974); Floyd Epperson (United Dairy Farmers,
Inc.), 202 NLRB 23 (1973); Transportation Lease Service,
Inc. and Allied Stores of Penn-Ohio, d/b/a Pomeroy's Inc.,
232 NLRB 95 (1977); The Pulitzer Publishing Company,
242 NLRB 35 (1979).
As stated, supra, all revenue received by Respondents
is pursuant to their contracts to provide schoolbus trans-
portation for the Board of Education. In order to settle a
lawsuit that developed from a labor dispute, the Board of
Education, prior to the beginning of the 1979-80 school
year, entered into an agreement with the schoolbus com-
panies it had contracted with to provide schoolbus trans-
portation during the 1979-80 school year. This agree-
ment provided, inter alia, for the establishment of a
master seniority list of those drivers, mechanics, dis-
patchers, and matrons "who were employed as of Febru-
ary 9, 1979, under a contract between their employers
and the Board for the transportation of school children
in the City of New York, who are furloughed or become
unemployed as a result of loss of contract or any part
thereof by their employers, or as a result of a reduction
in service directed by the Board during the term of the
contract." Employees who were hired by schoolbus
companies for the 1979-80 school year pursuant to this
master seniority list were to be paid the salary paid by
the New York City Transit Authority on July 5, 1979, to
drivers or mechanics (whichever is applicable). In addi-
tion, such employer who has employed a driver, dis-
patcher, or mechanic from this master seniority list must
pay $82 a month, on a 12-month basis, as a welfare con-
tribution for each of these employees, together with a
weekly contribution of $27.15 to Local 1181's pension
fund for each of said employees. (Local 1181 had repre-
sented the employees involved in the labor dispute and
had instituted the lawsuit in question.)
This agreement also provided that contractors provid-
ing five vehicles or less were not subject to its provi-
sions; therefore, Respondent Hillside and Respondent
Bellrose were not bound to hire from the master senior-
ity list and did not do so. Because Leibowitz, during the
1978-79 school year, operated another schoolbus trans-
portation company (London Bus Company) and the
agreement also provided for preference in employment
for a company's prior employees, Respondent Hunter,
under the agreement, employed only one employee, Pat-
rick Morgan, from the master seniority list and made the
required payments for him.
Respondents would argue that. even though I have
found Respondents to constitute a single integrated en-
terprise, because of the nature of Respondents' business
and the control the Board of Education exercises over
Respondents as described, supra, the Board should not
assert jurisdiction herein. I disagree.
In National Transportation Service, Inc., 240 NLRB 565
(1979), the Board reexamined the two-point test it had
been using in determining whether to assert jurisdiction
in situations such as is present herein. In that case the
Board decided that it would no longer consider the "inti-
mate connection" test, stating:
We conclude that the first aspect of this test-i.e.,
whether the employer would be able to bargain ef-
fectively about the terms and conditions of employ-
ment of its employees-is by itself the appropriate
standard for determining whether to assert jurisdic-
tion in situations such as that presented in the in-
stant case. Once it is determined that the employer
can engage in meaningful collective bargaining with
representatives of its employees, jurisdiction will be
established.
The only evidence adduced of any "control" by the
Board of Education regarding the labor relations policies
of Respondents was the terms that the Board of Educa-
tion required its contractors to comply with pursuant to
the agreement referred to, supra, between Local 1181
and the Board of Education. Of the approximately 32
employees employed by Respondents only 1 employee
was covered by the provisions of this agreement and the
only requirements Respondent Hunter had toward him
was to pay him a certain ininimum wage' and to make a
specified periodic contribution for his welfare and pen-
sion plan. I find that this is not nearly enough "control"
of Respondents' labor relations policy to prevent Re-
spondents from being "able to bargain effectively about
the terms and conditions of employment of its employ-
ees." National Transportation, supra. Even with this re-
striction, Respondents could, and did, engage in collec-
tive bargaining with Local 118. I therefore find that Re-
spondents are a single integrated business enterprise en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. 2
11. THE LABOR ORGANIZATIONS INVOLVED
Respondents admit, and I find, that Local 118 and
Local 1181 are, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. September 6, 1979, Speech
On September 6,3 4 days before school started,
Leibowitz made a speech to all of Respondents' employ-
ees at Temple Beth El in Belle Harbor, New York. At
this meeting, the purpose of which was the orientation of
the employees to Respondents' operations, Leibowitz
thanked De Fina for assisting him by training a number
of Respondents' drivers in obtaining their number 2 li-
I No evidence was adduced as to whether the minimum wage rate was
more or less than the wage rate provided in Respondents' contracts with
Local 118.
' Jay Dee Transportation, Inc., er at., 243 NLRB 638 (1979); We Trans-
port, Inc., et at., 240 NLRB 755 (1979); Soy City Bus Services. Division of
R. W. Harmon d Sons, Inc., 249 NLRB 1169 (1980); Kal Leasing, Inc..
240 NLRB 892 (1979); R. W Harmon & Sons, Inc., 250 NLRB 172
(1980).
s Unless otherwise indicated, all dates referred to are for the year 1979.
1260
HILLSIDE BUS CORP.
cense, which allows them to drive a large schoolbus, as
well as a minibus. In addition, Leibowitz told the em-
ployees of Johnson's duties as dispatcher (this will be dis-
cussed separately, infra) and spoke about the possibility
of the employees joining a union. A number of employ-
ees, together vwith Leibowitz, Johnson, and Milberg, tes-
tified regarding the content of Leibowitz' statements.
De Fina testified that Leibowitz said, "The first man
that joins the union, I'll close this shop. I don't want no
unions in here," although he did not mention any specific
unions. A slight discrepancy appeared in his testimony
when I asked De Fina if Leibowitz also spoke of the dif-
ficulties he had earlier in the year with the Local 1181
strike and violence. De Fina answered, "He didn't talk
about any violence nor did I know he was threatened."
When I repeated the question, De Fina answered, "[H]e
did not mention any violence. He mentioned the strike,
the trouble he had at London Bus Company." Employee
Albert Ortiz testified that Leibowitz said that "he would
have no union . . . he didn't want somebody to try to
get involved in any Union," and that if someone brought
in a union "he would be brought in front of the drivers."
Ortiz, though admitting that his memory on this subject
was less than exact, testified that Leibowitz said that if
somebody tried to bring in a union "he would prefer to
close the place down or something like that. But he
would rather prefer that we not join a union."
Employee Salvatore Colognna, who, together with
Morgan, did not join Local 118 until the 30th day after
the collective-bargaining agreement between Respond-
ents and Local 118 was signed, testified that Leibowitz
said that he did not want Local 1181 in the shop and that
if anybody brought in Local 1181 or authorization cards
for Local 1181 he would bring them before the other
employees and tell them, "This is the man that closed the
gates on the bus company."
Milberg also testified about this meeting, although
"testified" is probably not a proper term for her actions
while on the witness stand; rather, she spent most of her
time on the witness stand attempting to explain away the
contents of her affidavit, which states, inter alia, "At the
meeting he [Leibowitz] told the drivers that if they
brought any union in, he would close down the shop and
the employees would lose their jobs." After many at-
tempts at evasive action Milberg finally admitted that
what Leibowitz said was "something to this effect" and
"that he would probably have to close his shop, some-
thing like that" if the union came in.4
Johnson testified that Leibowitz said that under no cir-
cumstances would he have Local 1181 in the Company:
"He said that the union had been known for a lot of vio-
lence and they were the ones that held us up for 13
weeks on account of the strike. They were very violent
people, and he didn't want any of the employees hurt,
because he knew the way the union was." Johnson was
then asked:
Q. Did he say what would happen if the employ-
ees tried to bring in 1181?
A. He said he would close the doors.
4 It should also be noted that during Milberg's testimony I had to warn
her to cease looking at I.eibowitz prior to each of her answers.
Johnson further testified that sometime between early
September and late October he had a conversation in
"general terms" with Leibowitz about unions: "We dis-
cussed 1181, the violence that went on with 1181, the
numerous things about 1181 in particular . . . he was
telling me that 1181 was a shame. And I said there are
other Unions besides 1181. And it went on no further
than that."
Leibowitz testified that during the 1978-79 school year
he was affected by the labor dispute that Local 1181 was
engaged in, even though the employees of his company
at that time (London Bus Company) were not represent-
ed by Local 1181. He testified that this dispute shut
down his company's operation for a period and resulted
in threats and violence. His testimony as to what he said
at this meeting is as follows:
Well, I'm-I may have said that-to the effect
that rather than have the violence that we had and
because the Board of Education decided to amend
these contracts and force the union, 1181, upon
companies that were not unionized, I saw no reason
why we should stay in business and create an at-
mosphere that will harm everyone here and I said
that-something to the effect that: I feel that I have
a lot of respect for all of you and most of you are
my friends and we've worked together all a long
time and rather than fight a war, I will just close up
because of the violent threats to my family.
I said that because of the violence that occurred,
and because of the situation that was reported in the
newspapers, and the threatening phone calls to my
life and my children-fire bombings-the general
upheaval-I said that if 1181 tried to unionize us,
and I know that a lot of people have come to me
and told me that you do not want to be involved
with 1181-
Rather than have violence, I will have to just
close the door.
Q. Under what circumstances would you close
up?
A. Well, if we were forced to take Local 1181,
because of the violence that was created ....
B. Collective-Bargaining Agreement With Local 118
Johnson testified that sometime in or about October he
was speaking with drivers for another schoolbus trans-
portation company, M & E Winters. These drivers in-
formed Johnson of the existence of Local 118 and gave
him the telephone number of Local 118. 5 Johnson testi-
fied that he then spoke with a number of the drivers of
Respondents "and I told them that I think Larry might
go along with the union because I think it is better for us
and he might go along with this rather than go along
with 1181."
The following week Johnson called the telephone
number he was given for Local 118, and spoke with
Charles Valvo, representative of Local 118. Johnson
I Johnson testified that he is not certain whether the employees of M
& E Winters are represented by Local 118. M & E Winters is owned by
Johnson's wife's sister.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him if he could bring him some authorization
cards, as he had spoken with some of the employees and
they indicated that they would like to join Local 118. On
Friday, October 26, at or about 4, Johnson saw a car
pull up and park outside the garage; Johnson went out to
the car, and Valvo handed him the Local 118 authoriza-
tion cards and left. Johnson then handed these Local 118
authorization cards to the employees who were at the
garage and told them to read the cards. Those drivers
who were not present at the garage that afternoon were
given cards by Johnson the following Monday. Johnson
testified that he gave these authorization cards to 22 of
Respondents' employees and may have given them to 2
other of Respondents' employees. A large majority of
these cards are dated October 26. Johnson did not give
Local 118 authorization cards to a number of employees,
including De Fina. whom he did not see that afternoon
or Monday morning.
On Monday, October 29. Valvo drove up to the
garage between 10 a.m. and noon. Johnson went out to
Valvo's car, handed him the authorization cards he had
collected Friday afternoon and that morning (22 in
number), and told him that the cards represented a ma-
jority of the employees of each Respondent. Valvo said
that he would take care of it. Johnson testified that after
that day he had no other involvement with Local 118,
other than his being a member of it, and that his activity
in handing out Local 118 authorization cards was his
own idea-Leibowitz never instructed him to do it.
Leibowitz' testimony continued on from that point of
time; he testified that his first contact with Valvo was a
telephone call from him: "I think I got a phone call
saying: I have got a bunch of cards signed here, and let's
have a contract, or something to that effect." When I
asked Leibowitz how long prior to the signing of the
collective-bargaining agreement with Local 118 (October
29) he received the phone call from Valvo, the best that
he could estimate was that it occurred a week or two
before the collective-bargaining agreement was signed.
He testified that Valvo came to his office and told him,
"I represent the Union. I have cards here and here is a
contract." Valvo handed Leibowitz three identical con-
tracts, one for each of Respondents. Leibowitz did not
look at the authorization cards and asked Valvo, "What
do I do now, I never had this before?" Valvo answered,
"Read it, let me know." Leibowitz then testified as fol-
lows:
A. I took it home and I did some deep soul
searching and I felt that I had a responsibility to the
people who worked for me a long time and if I
didn't sign the contract, I don't know exactly what
would happen, maybe the Board of Education
would take the contract for not running, and these
fellows would he out of a job, I would lose my
business, so I figured that it was [a] business deci-
sion, I said, "Fine. I will sign it."
Leibowitz signed the contract on behalf of Hunter,
and gave Rosalie and Martin Gurber the contracts that
Valvo left with him for Respondent Hillside and Re-
spondent Bellrose and told them to make their own deci-
sion on what to do. They signed the contracts for Re-
spondent Hillside and Respondent Bellrose. All three
contracts are signed and dated October 29.
Patrick Morgan testified that he and his tather, an em-
ployee of Respondent Hillside, were handed Local 118
cards by Johnson in the parking lot outside of the
garage. Morgan placed the date of this as "maybe the
first or second of November" and that it was on a
Monday. 6 Johnson told them that the cards had to be
signed within a month or they would be out of work.
Morgan, who was a member of Local 1181 at the time,
took the card, but did not sign it; the same was true for
his father. A few days later Valvo came to the garage
and spoke to Respondents' employees about the benefits
contained in the contract. Morgan testified that De Fina
was one of the employees present. According to Mor-
gan's testimony, Leibowitz informed the employees,
"This is a union shop and anybody that doesn't sign the
cards within 30 days would be out." On November 26,
Morgan and Sal Colognna went to Leibowitz' office and
told him that they wanted to sign the Local 118 cards.
Leibowitz told them, "You're doing the right thing," and
they signed membership cards and dues-checkoff cards
on behalf of Local 118.7
Colognna, a driver employed by Respondent Hunter,
testified that on Monday, October 29, at or about 7 a.m.,
Johnson approached him and handed him a Local 118
authorization card and said that a majority of the men
signed authorization cards for Local 118 and if he did
not sign the card he had 30 days under New York State
law to continue working for the Company. Colognna did
not sign the card on that day. He further testified that on
Thursday, November 1, Local 118 held a meeting at Re-
spondents' garage with Respondents' employees. De Fina
was on a run at the time and was not present for this
meeting. Valvo informed the employees that they had a
contract signed with Respondents as of October 29, Co-
lognna asked how that was possible since he had only re-
ceived his card on October 29, and Valvo answered that
he had the contracts and he had signed authorization
cards. Valvo then discussed the benefits set forth in the
contract. Colognna further testified that on November
26, Leibowitz asked him if he were going to join Local
118 within the required 30 days; Colognna asked where
the cards were and Leibowitz said they were in Re-
spondents' office. On November 28,8 he and Morgan
went to the office and said, "we are here to sign the
card." Leibowitz asked Morgan, "Does 1181 know you
are signing the card," and Morgan said, "Yes." They
signed the forms joining Local 118.
Driver Albert Ortiz testified that, after Valvo spoke to
Respondents' employees on the bus (he places the date as
during the week of October 29), Leibowitz told the em-
6 I find it reasonable to assume that this occurred on Monday, October
29.
7 Morgan testified that a few days earlier he met Lelbowitz in the
garage and Leibowitz told him that he would be foolish if he did not sign
with Local 118, and that, if he did not do so after the 30 days, he would
be out of a job.
a It is noted that Morgan testified that this occurred on November 26.
Neither card is in evidence, but Morgan's father, James, signed his card
on November 26. Regardless. the difference is insignificant.
1262
HILLSIDE BUS CORP.
ployees that he had signed the contract with Local 118
and that the employees who had not already signed a
card for Local 118 had 30 days in which to do so or
they could not work for Respondents.
As Johnson admits to soliciting a majority of the cards
on behalf of Local 118 it is necessary to determine
whether Johnson is a supervisor within the meaning of
the Act. The General Counsel alleges that he is a super-
visor, while Respondents allege that he is employed as a
dispatcher who simply transmits orders from Leibowitz
and Milberg.
During the 1979-80 school year Johnson's weekly
salary was $361; the weekly salary set forth in Respond-
ents' collective-bargaining agreements with Local 118 for
that period was $250; some drivers, for reasons unex-
plained at the hearing, earned up to $311 a week; and
Patrick Morgan earned $323. During the period in ques-
tion Respondents employed approximately 27 drivers and
5 mechanics.9 Johnson had previously worked for
Leibowitz for 11 years, last at London Bus Company,
and testified that he was hired as a driver-dispatcher and
beginning in September he, like the other drivers, had a
regular run: "I would normally go on the run unless I
was doing something in the dispatcher capacity, then I
would send someone else to do the run." Johnson could
only estimate that he actually performed his run from 30
to 60 percent of the time; when he had dispatching
duties to perform he usually chose a mechanic to substi-
tute for him-"Anyone I could get, whoever was availa-
ble."' 0
Johnson also testified that in September, prior to the
beginning of the school year, Leibowitz told him that his
job was to dispatch the buses, get the drivers out on the
buses, and make sure the children get to school safely
and get home safely, but that he did not have the power
to hire or fire employees; Leibowitz and Milberg were
the only ones who could hire or fire. In his testimony
Johnson described his duties as a dispatcher as "[m]aking
sure the runs go out, the children got to school on time,
making sure the buses went out on time." He testified
that if anything unusual happened Milberg would handle
it, and "if it is something small, then I handle it." When
asked to give an example of what he meant by "some-
thing small," Johnson testified:
Another example would be that if a parent would
call me and say what time are the children being
picked up and so on and so forth, I would answer
her and I would say what time do you get to this
particular spot on a particular day, and give the
parent an answer; or a child may be involved with
a parent calling up and saying my child hasn't been
9 The testimony was that Gregory D'Aquiar "was in charge of the me-
chanics"; however, there is no allegation that he is a supervisor within
the meaning of the Act
'o His testimony at another point is somewhat different:
Q. How would you decide which mechanic would go out on that
run if you were tied up with your dispatching job?
A. Depending on what they were doing in the garage.
Q. You would see what is happening and then you would make a
decision as to Greg or Scott taking a run that afternoon; is that
right?
A. Yes.
picked up. And I would check the route and see if
he was on the route, and if he was on the route de-
termine why the child was not picked up. It might
be he wasn't on that route and the parent made a
mistake or we made a mistake or the school made a
mistake, and try to correct that in this particular
case.
Johnson testified that when there was a bus break-
down, the driver (of any of Respondents) would call him
and he would dispatch an available mechanic to assist
the driver," "my primary job is to make sure that the
children get to school safely and as close to being on
time as possible." Johnson further testified that he some-
times received complaints from parents that their school
children were not picked up or were picked up late and
he would ask the driver about the situation and then con-
tact the parent with an answer; he never reprimanded
any drivers.
Johnson also testified that Leibowitz did not spend a
lot of time at the garage: "He would come down every
once in a while .... He might not come down for a
week, he might come down three or four days in the
next week."
Leibowitz testified that in early January 1980, Re-
spondents hired a general manager for the garage. When
he was asked who "ran the show" at the garage prior to
that time, he answered, "I did. It was over the telephone
kind of thing. It was very difficult." He also testified
that, like Milberg, he spent most of his time at the office,
so he assigned "one of my drivers"-Johnson-- "to sit in
the office in between his routes and help me," even
though Johnson drove an assigned run every day, and al-
though Leibowitz did not know what run it was.
Leibowitz testified that at the meeting of September 6
with the employees of all Respondents (discussed above,
supra) he told the employees:
Mr. Johnson's duty is not hiring and firing. He
will be given orders by me as to dispatching buses
between his driving job. I said Bonnie Milberg's job
is that she will be a liaison between the Board of
Education and us; she will make run changes; she
had a right to hire and fire, so if she tells you
people that she wants something done, this is the
person who you better listen to.
Milberg also testified regarding Johnson's supervisory
status. In an affidavit previously given to the Labor
Board she referred to Johnson as "dispatcher, manager."
In her testimony she first stated that Johnson was the
"dispatcher." After being shown her affidavit she was
asked if in the affidavit she described him as "dispatcher,
manager" of the garage; she answered, "I might have, I
don't know. To me, dispatcher and manager, I don't get
L At this point an inconsistency appear, in Johnson's testimony. At
first he testified, "A breakdown I would get a ca3l. and I would tell the
mechanic and dispatch the mechanic out 'o help the driver." Shortly
thereafter he testified. "I wouldn't send out a mechanlic I ma)be said that
wrong. we have a mechanic there vuho was in charge of the other me-
chanics and I would tell him about the breakdown and information and
so forth and he would let the mechanic go"
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in that." Milberg's affidavit also states, "Richie
Johnson has the power to hire, fire, and discipline em-
ployees." In answer to a question as to whether Johnson
had the power to hire, fire, or discipline employees, she
testified, "Well, not really." When I asked her why, in
her affidavit, she stated that he had these powers, she
stated, "I just felt he did," although he never hired, fired,
or disciplined -any employee, nor did he recommend to
her that an employee be disciplined. She also testified
that Johnson's responsibility is to make sure that all the
buses go out to the schools on time and that neither she
nor Leibowitz spend much time at the garage. When she
was asked whether Johnson was in charge at the garage,
she answered, "Yes, he was there." When she was again
shown her affidavit, which states, "Johnson has the au-
thority to make decisions about scheduling and resolving
conflicts without consulting with Larry Leibowitz," she
testified, "But it doesn't say anything about me." Milberg
testified that Johnson did not have the authority to make
schedule changes on his own-he always called her: "If
it is something ridiculous he tries to work it out. If it is a
major thing, it is scheduling, it is important, he calls me."
When she was asked to give examples of "ridiculous"
things that Johnson could work out himself, she first tes-
tified, "Stupid things that happen down in the garage,"
and then, after much difficulty, the only example she
could testify to was settling the problem of a broken
window in the garage. Shortly thereafter she testified
that Johnson "is the manager of the people down at the
garage," and, in answer to the question, "He was the
only one in management that the employees saw or dealt
with," she testified, "Well, they all had to deal with
Richie, because Richie was there with the buses." Mil-
berg also testified that prior to the start of the 1979-80
school year she prepared a schedule of the runs for each
of Respondents' buses, with Johnson's assistance.
De Fins testified that, at the September 6 meeting of
all the employees of Respondents, Leibowitz introduced
Johnson to the employees and said that Johnson would
be general manager and dispatcher of the garage, and
"whatever he says, goes." Prior to this, while De Fina
was assisting Leibowitz in preparing for the 1979-80
school year, Leibowitz introduced him to Johnson and
told him that Johnson would be in charge of the bus
garage. De Fina testified that Johnson was in charge of
dispatching the buses, receiving telephone calls from par-
ents of school children serviced by Respondents, receiv-
ing calls from drivers whose buses broke down, and re-
ceiving telephone calls from Leibowitz; Johnson drove a
run only to cover for a driver who was absent, and, ac-
cording to De Fina's testimony, Johnson never hired or
fired anyone.
Patrick Morgan testified that Johnson did not have a
regular run of his own and, as dispatcher, he was the
person you went to if you had a problem with your run
or your bus and he would work it out with you. Morgan
testified to a situation where, at the start of the school
year, he had 75 or 76 children on one of his runs, where-
as normally drivers are only allowed 72. He reported this
to Johnson, who told him, "Don't take more than seven-
ty two children. The others will have to find other ways
of getting to school." On one occasion his run was
changed, and Johnson informed him of the change, al-
though he does not know who made the decision to
change his run.
Ortiz testified that at the September 6 meeting
Leibowitz informed the employees that Johnson would
be the dispatcher and would be "running the garage."
Colognna testified that, at the September 6 meeting with
Respondents' employees, Leibowitz told the employees
that Johnson was the dispatcher and the man in charge
of dispatching the buses and if any of them had a prob-
lem they should speak about it to Johnson first before
seeing him. He also testified that Johnson did not drive a
schoolbus run, he only drove buses to have glass in-
stalled in them. He testified that Johnson's job was to
dispatch the buses and answer telephone complaints from
parents or calls from schools. When Colognna voiced
complaints to Johnson about the overloading of his bus,
Johnson went to the office about the complaint. When a
student and parent complained about something Co-
lognna had done, Johnson gave Colognna a note to see
Milberg. Colognna also testified that he knew of no situ-
ation where Johnson hired or fired any employee. John-
son informed him of changes in his runs, but he believes
that Leibowitz or Milberg made the decisions.
C. Discharge of De Fina
De Fina began his paid employment with Respondent
Hunter on the day school began, September 10, as a bus-
driver. When he first applied for the job, in early
August, Leibowitz asked him if he had a number 2 li-
cense, and De Fina said that he did; Leibowitz asked him
if he could train some of Respondents' other drivers so
that they could obtain number 2 licenses, and De Fina
agreed to do so. Between that date and September 10
(and thereafter) De Fins trained a number of Respond-
ents' drivers in order for them to obtain a number 2 li-
cense without being paid for his time in doing so. As
stated, supra, during his speech to Respondent's employ-
ees on September 6, Leibowitz thanked De Fina for this
assistance he gave to him.
De Fina began his employment with Respondent
Hunter. About 2 weeks later Respondent Hunter was re-
quired to employ a driver pursuant to the settlement
agreement between the Board of Education and Local
1181, discussed supra, and, at that time, De Fina was
transferred to the employ of Respondent Hillside, where,
together with a matron, he operated a minibus. (The
minibuses transport handicapped children, with the as-
sistance of a matron.) De Fina testified that on October
2612 he met Leibowitz in the garage and Leibowitz
asked him to come to his office when he finished his run.
De Fina was to drive home a fellow employee, Danny
Thurman, and before leaving work he asked Thurman to
wait in the car for him while he went to see Leibowitz
in the office. (Thurman did not testify at the hearing.)
When De Fina arrived at Leibowitz' office another
driver, Bill Sadattie, and a mechanic (whose name De
Fins did not recall) were present (neither testified at the
" De Fina originally testified that the incident occurred on September
26. Upon being shown his affidavit given to the Labor Board, he testified
that the incident occurred on October 26.
1264
HILLSIDE BUS CORP.
hearing). According to De Fina's testimony, Leibowitz
handed him a membership card for Local 118 and asked
him to sign it. De Fina said to Leibowitz, "Larry, you're
the one who told me you didn't want no unions. You're
the one that said, 'The first guy that joins the union, I
close the shop."' Leibowitz then said, "Well, I have the
lesser of the two evils. I'm not going to have 1181 tell
me how to run my business or dictate to me." De Fina
then told Leibowitz that he wanted to take the card
home with him to check into it, and Leibowitz said,
"Well, you might as well sign it, I'll tell you now, the
majority signed it already." De Fina asked Leibowitz
what would happen if he did not sign the card and
Leibowitz said, "You can't work for me."
De Fina further testified that Leibowitz then looked
out of the window and asked De Fina who was in his
car; De Fina said that it was Thurman and Leibowitz in-
structed one of his men to get him and bring him to his
office. When Thurman came into the office Leibowitz
handed him an authorization card for Local 118 and
Thurman said that he would like to think it over and
return the card on Monday. Leibowitz told him to sign it
"now," which he did. After that, De Fina and Thurman
left. Leibowitz denied that this ever occurred and testi-
fied that he never spoke to De Fina about unions in Oc-
tober or November.1 Driver Albert Pezzella, Johnson's
son-in-law, testified that on October 29, at the garage, he
observed Johnson handing a card to De Fina saying,
"These are the union cards," and De Fina took the card,
saying, "What do you want me to do with it?"
De Fina testified that this incident with Leibowitz
made him angry and he called Local 1181 and informed
it of Respondents' operations. Additionally, together
with other of Respondents drivers, he spoke with Re-
spondents' drivers in a restaurant three or four blocks
from Respondents' garage, telling them that Local 1181
was a better union for them than Local 118. Sometime
on or about November 1, at or about noontime, two or-
ganizers of Local 1181 came to Respondents' garage
with a loudspeaker and spoke with Respondents' em-
ployees. About 5 minutes later Leibowitz drove up and
shook hands with these two men, walked inside the
garage with then, stayed for a few minutes, and came
outside. De Fina testified that when they came outside
the Local 1181 organizers said to Leibowitz, "No deal,
Larry, no deal." After that, some of Respondents' em-
ployees, including De Fina, spoke to the Local 1181 or-
ganizers. They stayed for about 2 hours and left. Morgan
testified that this visit to the garage by the Local 1181
organizers occurred near the day that Valvo spoke to
Respondents' employees on the bus. According to Mor-
gan's testimony, these Local 1181 organizers spoke to
Respondents' employees without a loudspeaker and only
a few of the employees spoke to them.
The next day of importance herein is November 14,
the day De Fina was discharged. There are few credibil-
ity issues regarding the events of that day; the major
'3 One other of Respondents' employees, mechanic Edgar Lewis, testi-
fied that Leibowitz. in the presence of Johnson, gave him a Local 118
authorization card to sign on October 26. which he did. Because his testi-
mony is extremely confused I have not credited it, and therefore it will
not be recited in its entirety
credibility issue involves the afternoon dismissal time at
PS 197. De Fina testified that on November 14 he left
the garage with his matron, Rose Schwally, for his first
pickup, which was about 7:20 or 7:30 a.m. After making
all his pickups he dropped off the children at two
schools at or about 8:40 a.m. and returned the minibus to
the garage at or about 9. That day he noticed a piece of
paper posted in the garage stating that beginning No-
vember 15 he would have an additional run-a midday
run-between his morning and afternoon run. When he
saw the notice he informed Schwally that they would
have an additional run beginning the next day. He then
went to MacDonald's three or four blocks away where
he had breakfast with Schwally. Schwally left at or
about 9:15 and drove home. Between that time and 1:30
p.m. when he left MacDonald's to walk to the garage, he
stayed in MacDonald's, he was in his car listening to the
radio, or he may have spent some time in the garage; he
was not entirely certain. He did testify that he arrived
back at the garage at 1:35. When he did not see Schwal-
ly he asked those present in the garage if anybody had
seen her and he was told that she had gone out on the
De Fina-Schwally afternoon run with Johnson. One of
the matrons told him to call Leibowitz, which he did.
Leibowitz asked him what time he was supposed to pick
up the children at PS 197 and De Fina said "2:00."
Leibowitz said, "What do you mean, 2:00," and De Fina
told Leibowitz that was the time he picked up the chil-
dren every day. Leibowitz then said, "Go home, you're
fired, I'll mail you your check."
Schwally, who, like the other matrons, is employed by
Professional Detail Service, which provides matrons to
Respondents and other schoolbus transportation compa-
nies with contracts with the Board of Education, and is a
member of Local 1181, testified that De Fina picked her
up at the MacDonald's at 7:30 a.m.; their first pickup
was at 7:40. Their morning run finished at or about 8:45
a.m. (According to Schwally's testimony, she and De
Fina were given an additional run-the midday run-
which was supposed to begin the following day-No-
vember 15.) De Fina parked the minibus at the garage
and drove Schwally to MacDonald's where her van was
parked, and she drove home. Schwally testified:
Because he said he had a lot of things that he had
to clean up that day. He had to go home because
we were starting the midday the following day, and
he had a lot of things that he had to take care of
while he had the time. Because once we started the
midday we wouldn't have time to go home and do
it.
I went home and I reported back to the garage at
1:30, 1:25, 1:30.
She testified further that 1:25 to 1:30 was the time she
usually met De Fina at the garage and when she did not
see him she asked Johnson where De Fina was, and
Johnson answered, "I would like to know where he is
myself. He was supposed to do a midday today."
Schwally said that the midday run was supposed to start
the next day and Johnson said, "Well, he was supposed
to do it today. James Morgan was supposed to go with
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him today to show him the midday." Schwally said, "I
know that Mario didn't know anything about that. And
how could James go on my bus without me being on the
bus. You can't do a midday without the matron." At that
point the telephone rang and Johnson answered it and
handed it to Schwally saying, "It is for you." She took
the telephone and Leibowitz asked her, "What time do
you go out on your afternoon run?" Schwally answered,
"Just about now." Leibowitz asked, "What time are you
supposed to be at the school" (PS 197), and Schwally an-
swered, "Two o'clock."' 4 Leibowitz then said, "Put
Richie on the phone. You are going to have another
driver this afternoon." Schwally gave the telephone to
Johnson, who spoke with Leibowitz; when he hung up
the phone, he said, "I'm going to do your run with you."
Schwally asked, "Why not wait for Mario, he will be
here any minute. We are not late." Johnson said, "Well,
Larry wants me to do the afternoon run with you.
Schwally then said, "Well, that doesn't make much
sense, because we are going to be down there too early.
Why don't we wait here for Mario?"
Schwally testified further that she and Johnson left the
garage about 1:30 or 1:35 (she testified that she and De
Fina had left the garage "many times" later than that for
the PS 197 run) and arrived at the school on time al-
though the children were outside the school, with the
teachers, when they arrived. According to Schwally's
testimony, while they were walking toward the bus and
sitting in the bus she asked Johnson what was happening,
and Johnson said, "1 don't know what has gotten into
Larry lately. I worked with him for many years and he
has always been very reasonable, but I don't know what
is happening to him lately." Schwally said, "Well, why
not wait for Mario," and Johnson said, "No. Look,
Larry is being very unreasonable. Let's just do it and
maybe things will calm down by the afternoon. Maybe
Mario will be able to meet us at the school." Johnson
denied this conversation.
Schwally also testified that the following day while
she was at the garage waiting to go on the afternoon run
with her new driver she asked Johnson if De Fina would
be returning to Respondents' employ and Johnson said
that he did not know. Schwally asked why De Fina was
let go and Johnson said that Leibowitz had been having
a lot of problems with De Fina, and had gotten dozens
of letters of complaints about De Fina. Schwally asked
why she was never informed of these complaints and to
what complaints Johnson was referring. Johnson said,
"Oh, there are lots of them." Schwally asked him to
name one, and Johnson left without answering. A day or
two later Schwally again asked Johnson for the specific
complaints about De Fina's work and Johnson told her,
"I don't want to talk about it." Schwally said, "Richard
you know what this is all about just as well as I do. It is
about the union." Johnson did not reply. Johnson does
not recall such a conversation. Schwally testified that
14 Schwally had been on the PS 197 afternoon run since school began
on September 10 and testified that they had to be at the school by 2
o'clock. It took 10 minutes to drive from the garage to the school, and
she and De Fina usually left the garage whatever time they both arrived
there-anytime between 1:15 and 1:50, but they usually arrived at the
school at 1:50.
dismissal times are discussed among the driver, matron,
and teachers and they all agree on a time that is close to
the school's dismissal time while, at the same time, con-
venient for all.
Milberg testified that dismissal time for PS 197 for De
Fina's run, during the period in question, was 1:30. How-
ever, in the affidavit she gave to the Labor Board, she
stated that dismissal time was 2 o'clock. Although Mil-
berg testified extensively on this subject, because I found
her to be a witness completely lacking in credibility (as
discussed supra and infra) I will not bother to recite her
testimony on the subject.
Johnson testified that on November 14 between 12 and
12:30 he received a call at the garage from Leibowitz,
who asked where De Fina was; Johnson told him that
De Fina was supposed to do a dry run on a midday run
that day,t 5 but he did not know where De Fina was.
Leibowitz said, "I will talk to you later." Johnson testi-
fied further that Schwally came to his office in the
garage at or about 1:20 or 1:25 and asked where De Fina
was and Johnson said that he did not know; Schwally
told him, "He must be here, we are supposed to be going
out on a run." At that point Leibowitz called and asked
what time Schwally and De Fina were supposed to go
out and Johnson said, "Right now." (According to John-
son's testimony, it was then 1:30.) Schwally then took
the phone and spoke to Leibowitz; shortly thereafter she
handed the phone to Johnson and said, "You are going
on Mario's run." At or about 1:30 he walked to the bus
with Schwally, let the bus warm up for 5 minutes, and
told Schwally, "We will stall a little bit and see if he gets
here," but De Fina did not arrive by then and they
drove to the school, which, according to Johnson's testi-
mony, took about 15 minutes. When they left Respond-
ents' garage at or about 1:40 they did not see De Fina.
They were late arriving at the school (at 1:50), according
to Johnson's testimony, and the children were waiting
outside for them. Later when Johnson returned to the
garage he met De Fina and asked him why he was late
and De Fina said that he was not late.
Matron Frances Parke, who was employed by Re-
spondent Bellrose during the period in question, testified
that during this period she and her driver had an after-
noon run to PS 197 and they had to pick up the children
at the school at 1:30. In answer to questions from me she
testified that she first learned that the pickup time for PS
197 was 1:30 front a "slip of paper" she was given and
that it was not possible that, while her bus had to be
there by 1:30, De Fina's bus was to be there at a later
time "[b]ecause we both had the same type of runs, at
school, and it called for 1:30."
Matron Mary King testified that she was employed by
Respondent Hillside from September through the first
week in October, and during this period she had an after-
noon run at PS 197 and she and her driver had to be
there at 1:30 to pick up the handicapped children. She
also testified that she knew that De Fina's run was due
Is A midday run usually operates between II a.m. and noon. The "dry
run" involves the new driver going on the run with the dnver whose run
it had been to better learn the route. Johnson testified that on the prior
day he had told De Fina to do the dry run on the midday the next day.
1266
HILLSIDE BUS CORP.
there at 1:30. During cross-examination King's story
began to evaporate until, by the end of her cross-exami-
nation, it became clear that her testimony was worthless.
Firstly, King testified that, as regards the PS 197 after-
noon run, De Fina "had the run from the beginning";
however, De Fins was originally employed by Respond-
ent Hunter until a few weeks after school began when,
due to the hiring preference established by the Board of
Education, discussed, supra, he was transferred to Re-
spondent Hillside and the PS 197 run. In addition, she
testified that her bus had to be at PS 197 at 1:30 so she
assumed the others had to be there at the same time. She
assumed that, she testified, because "the company" told
her that if one bus had to be there all the buses had to be
there. When she was asked who from "the company"
told her that she answered, "The dispatcher, I imagine."
She was then asked:
Q. Did the dispatcher ever say to you, Mary
King, if you had to be there, then Mario De Fina
has to be there at the same time?
A. No.
Q. So you really don't know when he had to be
there.
A. No, I just knew that bus 47 had to be there at
the school at 1:30.
Q. And what was bus 47?
A. My bus.
Finally, in answer to questions from me, King testified
that she never witnessed De Fina on his PS 197 run
since she did not have this run until January 1980.
Leibowitz testified that on November 14, at or about
1:30, he received a telephone call from Schwally, who
said that De Fina was not yet at the garage; Leibowitz
asked what the problem was and Schwally said that they
had to leave. When Leibowitz asked what time they had
to leave, Schwally said that they should have left al-
ready. Leibowitz asked her to put Johnson on the phone.
He told Johnson to go outside to see if he saw De Fina;
when he came back and said that he did not, Leibowitz
told Johnson to do De Fina's run. At or about 1:50 De
Fina called Leibowitz from the garage and asked what
happened. Leibowitz told him that he was supposed to
do a midday run'l and that he was supposed to leave on
his regular run at 1:30. De Fina said that he was not late,
and Leibowitz told him that he was fired and he would
mail him his check.
Leibowitz' testimony regarding the midday run is con-
fusing. He first testified, "I told him three days ago ...
three days before." He then testified, "I don't recall if I
told him. I don't recall if Bonnie told him. I don't recall
if Richie told him. But I checked with the three people,
and they said yes, he was notified of the run change."
He then testified:
Every person I spoke to said to me they told him.
That is Bonnie, that is Richie, and that's myself. I
can't be any more clear than that. We spoke to him.
We told him.
1t Leibowitz' testimony appears to be that De Fina was to perform the
midday run, not do a dry run of it that day with Morgan
JUDGE BIBLOWITZ: You, yourself told him-
THE WITNESS: Yes.
JUDGE BIBLOWITZ: And you remember clearly?
THE WITNESS: Yes.
JUDGE BIBLOWITZ: What were the circumstances
when you told him about the midday run?
THE WITNESS: So he picked up the phone-I said
Mario, starting this day, you got a midday run.
Later, during cross-examination, Leibowitz was asked
whether the drivers arrange actual dismissal times from
the various schools. Leibowitz' answer was, "Absolutely
not. That is absolutely wrong. They do not." Leibowitz
was then shown the affidavit he had given to the Labor
Board which states, "The schedules that I give out to the
drivers are retyped versions of Board of Education
schedules. Although the runs stated on the schedule for
specific times, the bus driver arranges with schools the
actual times for dismissal." Leibowitz' explanation was
that the Board Agent omitted the words "with our ap-
proval" from the affidavit.
Jenny Outcalt, who is employed as an educational as-
sistant at PS 197, testified that the children in her class
are emotionally handicapped, and in the afternoon she
and the teacher of her class escort the children to the
bus and do not leave until the buses with their children
on them depart. She testified that dismissal time in the
fall of 1979 was 2 o'clock, but the children were placed
on the buses anytime between 1:35 and 1:55 when the
buses arrive at the school. The reason for this was that,
even though dismissal time was 2 o'clock, that was not
necessarily the time the children were taken outside; for
example (according to Outcalt's testimony), if the weath-
er was nice, the teacher and educational assistant took
the children, at or about 1:30 to 1:35, to a park adjacent
to the school and when the buses arrived they boarded
the children on the buses whether it was 1:35 or 1:55. If
the weather was not nice, they waited in the classroom
until they saw that the bus had arrived, then they took
the children downstairs and put them on the buses. Out-
calt also testified that during the 1979-80 school year
Respondent Hillside's buses arrived between 1:30 or 1:35
and 2 p.m.
In addition to the above testimony, exhibits were in-
troduced by the General Counsel and Respondent at-
tempting to buttress their positions regarding the dismiss-
al time at PS 197. The General Counsel introduced the
schedule that was given De Fina for his run when he
began working for Respondent Hillside. The document
lists a number of children, their schools, sessions, ad-
dresses, and telephone numbers. Typed under these
names is:
Drop
P.S. 197 Beach 9th Street Hicksville Road-8:35
P.S. 104 26-01 Mott Avenue, Far Rockaway-8:40
Handwritten under this is:
P.S. 197 2:00 Take home above children
P.S. 104 3:00 Take home above children
1267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
De Fina testified that he did not write in the last lines
on the form and he assumes that Milberg did. Milberg
testified that it was not her handwriting; Johnson testi-
fied that it looked like Milberg's handwriting.
Respondent introduced the "trip cards" used by De
Fina during his employment with Respondents. All driv-
ers for Respondents are required to fill out one each day.
This trip card includes, inter alia, places for the drivers
to fill in the following: "School Trips Out," "Dismissal
Time," and "Passengers." Beginning September 23, the
day he was transferred to Respondent Hillside, through
November 13, on every trip card which included the PS
197 run (all the trip cards except one) De Fina wrote:
P.S. 197 1:30
P.S. 104 3:00.
Respondents allege that, as De Fina indicated "1:30"
as the dismissal time on the trip cards, that must have
been the actual dismissal time at the school. De Fina tes-
tified that at one time dismissal time for the school was
1:30; however, when he was transferred to Respondent
Hillside's employ, he received the above-mentioned form
(the one he assumes was the work of Milberg) which
stated that dismissal time for PS 197 was 2. However, he
(according to his testimony) always filled in 1:30 for dis-
missal time by "force of habit." When Milberg was
shown the trip card for William Chan, who replaced De
Fina on the PS 197 afternoon run on November 15, and
who wrote "1:45" under dismissal time, she testified,
"The time that is written here is when the driver gets to
the school, so he probably got there late." Chan's trip
card for November 16 states dismissal time at PS 197 as
"2:45."
Respondent cites other reasons for De Fina's discharge
in addition to the alleged lateness on November 14.
Leibowitz testified that, while De Fina was training the
drivers for him, several of the drivers told Leibowitz
that they appreciated the training, but that De Fina was
driving too fast. Leibowitz "sluffed it off" because he
needed De Fina to train the other drivers. Leibowitz tes-
tified that on September 28 De Fina had an accident
with the bus and Leibowitz told him, "You hold yourself
out as a safety instructor, and here you are, you have the
first accident in the company. How does that look for all
these other guys." He testified that he called Johnson
and asked him to investigate the accident. Johnson then
called Sister Enid Story, the principal of St. Rose of
Lima, a school serviced by Respondent Hunter and the
school De Fina had made his pickup at prior to the acci-
dent. 17 Sister Enid testified that in late September or
early October she spoke with Johnson, Leibowitz, and
Milberg. She informed them that she had received sever-
al complaints from parents, mainly regarding the delay in
children being picked up at the bus stops, but she was
most concerned about the accident.' 8 Sister Enid further
I' The accident report filed by De Fina state., "Bus was standing still
waiting to make a right turn East, car was travelling East making right
turn heading South, car skidded into bus before completing his turn."
'" De Fina drove the St. Rose of Lima morning and afternoon run
from September 10 through September 19 and on September 28.
testified that after the accident she asked the parents of
her school children who had complaints about the serv-
ice to write to her about them. When she collected the
complaints she called Johnson and he came to the school
and discussed the complaints with her. Although three
other of Respondent Hunter's buses serviced St. Rose of
Lima School, Sister Enid testified that since she had
records of which buses make which pickups she found
that most of the complaints regarding the late pickup of
children involved the same bus as was involved in the
accident-De Fina's bus.
On October 6 Sister Enid wrote a letter tot the individ-
ual at the Board of Education in charge of the Bureau of
Pupil Transportation, stating, inter alia:
I am writing on behalf of the children and the par-
ents of St. Rose of Lima School. This year our
school is' being serviced by a new bus company, the
Hunter Bus Company, Rockaway, New York.
After receiving several complaints from parents by
phone, concerning lack of safety and a bus accident
on September 28, 1979, I asked the parents to
commit these complaints to writing. I have read all
these complaints and have called the bus company.
On October 5th, the same day as I made the phone
call, I sat and reviewed these complaints with a Mr.
Richard Johnson. Mr. Johnson is the Bus dispatcher
for the Hunter Bus Company. He promised to look
into the situation and rectify the problem.
I would like this letter to be kept on file at your
office as an official notice of a complaint being
made to the Hunter Bus Company. If no action is
taken by the bus company, you will receive a subse-
quent letter from me. Upon receipt of this letter I
would ask your office to take action.
De Fina testified that after the accident Leibowitz
simply told him to "slow down," and De Fina said,
"Larry, I wasn't even moving when the man hit me." On
another occasion (De Fina could not place the date) Mil-
berg asked him if a child had fallen while riding on his
bus and De Fina told her that he did not know of any
such incident.
Leibowitz testified that thereafter De Fina received a
speeding ticket while driving a bus and he told De Fina,
"I cannot believe that you are still working here for me.
With all the things and all the complaints that I have
gotten." De Fina testified that he received a speeding
ticket about the middle of October for driving 49 miles
an hour in 30-mile-an-hour zone; he went to court to
argue the case on the ground that the only sign posted in
the area was a 50-mile-per-hour sign, and the charge was
dismissed. He testified that neither Leibowitz, Milberg,
nor Johnson spoke to him about this ticket.
Johnson testified that a few days before school began
he gave a speech on safe driving to all of Respondents'
employees (including De Fina) at which time he in-
formed the employees that "[t]he State Law states the
school buses are recommended to travel no more than 35
miles per hour whether posted or not." Johnson also tes-
tified that sometime in September he received a tele-
1268
HILLSIDE BUS CORP.
phone call from a parent who said that she observed De
Fina driving too fast and he told De Fina to slow down.
Johnson also testified that, when he met Sister Enid,
most of the complaints in the letters she received from
the parents were that the bus started too fast throwing
the children all over the bus. Johnson did not know
whether any other driver received a speeding ticket
during the period in question.
Hunter driver Ivan Parke testified that about the
middle of October, while he was driving a bus down
Beach Channel Drive, De Fina, who was driving a bus
with about 10 to 20 children in it, passed him while driv-
ing about 40 to 45 miles an hour and cut in front of him.
He reported this to Johnson. He testified, "I wouldn't
have said a word if there were no children on the bus.
But being there were children on the bus, that reflects a
bad name on the bus, all the drivers."
Harry Haroon, who is general manager of the gasoline
station in the area that is owned by Leibowitz, and that
provides gasoline and other services to Respondents'
buses, testified that in or about the beginning of Septem-
ber he was driving his car on 116th Street and he made a
right turn onto Rockaway Beach Boulevard-a two-lane
road, one lane for each direction. About a block later,
while he was driving "hardly" 20 miles an hour, one of
Respondents' buses passed him in the left lane. Haroon
testified that, at the time, he had his window open and
heard it coming prior to the time that it passed him and
he also saw the bus in his rear view mirror prior to the
time that it passed him. When the bus passed him,
Haroon looked to his left and recognized De Fina
through the glass on the front door of the bus; there
were no children in the bus at the time. He recognized
De Fina because prior to that he had come to the station
often while he was training other of Respondents' driv-
ers. Afterwards, he reported the incident to Milberg and
Leibowitz, who did not comment on the incident.
In addition, there was an incident where De Fina
picked up two adults, along with some children, and
took them to the school he was going to. He testified
that, when he picked up the children, two adults, waiting
at the same location, asked him if he were going to the
school and he said that he was. He did not ask them any
questions. When he arrived at the school, Leibowitz ap-
proached him and said, "Who are these people," and De
Fina said, "They asked me for a lift to the school. They
got in with the kids and I thought they were with
them." Leibowitz said, "People ore not allowed to ride
on the bus, no adults," and De Fina said, "I'm sorry
Larry, I didn't know. I am new to the school busing
business." He informed Leibowitz that it would not
happen again. De Fina could not place the time of the
incident, although it must have occurred prior to Octo-
ber 26 as De Fina testified that he and Leibowitz "were
good friends at the time."
Leibowitz also testified that sometime in October De
Fina returned late from a field trip and was therefore
late for his afternoon run. When Leibowitz pointed it out
to him, De Fina stated that the teachers on the trip
wanted him to drive through the streets. De Fina testi-
fied that he was never late for a run and Schwally testi-
fied that to her knowledge De Fina did not have a prob-
lem with lateness.
IV. CREDIBILITY DETERMINATIONS
I found Milberg to be one of the least credible wit-
nesses I have experienced; as stated, supra, her testimony
was a catalogue of contradictions. There were contradic-
tions among her testimony at different points in the pro-
ceeding, contradictions between her testimony and her
affidavit, and contradictions between her testimony and
that of other witnesses. For example, she testified that
the words "PS 197 2:00" were not in her handwriting,
whereas Johnson testified that it looked like her hand-
writing. In addition, while she was testifying, she looked
at Leibowitz prior to answering each question until I
warned her to stop doing so.
Although Leibowitz' testimony was more credible
than that of Milberg, I would credit the testimony of De
Fina over that of Leibowitz. De Fina impressed me as a
frank and honest witness; although his memory was far
from perfect (for example, his testimony regarding his
actions prior to returning to the garage on the afternoon
on November 14), it appeared that he was attempting to
answer the questions asked of him as truthfully as he
could, without "coloring" his answers. Leibowitz, on the
other hand, seemed to be "shooting from the hip" with
his answers. For example, Leibowitz testified that he in-
formed De Fina of the midday run 3 days prior to No-
vember 14; he later testified that he did not recall if he
personally told De Fina of the midday run; and, shortly
thereafter, he again testified that he personally told De
Fina of the midday run. Another reason why I have
credited De Fina's testimony is that it is supported by
Schwally, whom I found to be an extremely credible and
frank witness. Although Johnson, at first, appeared to be
a fairly credible witness, I found his testimony and that
of Leibowitz regarding the solicitation of cards for Local
118 to be unbelievable (to be discussed more fully infra)
and I would therefore discredit his testimony when there
is a conflict with that of De Fina or Schwally.
V. ANALYSIS AND CONCLUSIONS
It is clear that Leibowitz told the assembly of Re-
spondents' employees on September 6 that he would
close the shop if they brought in "a union" or Local
1181 to represent them for purposes of collective bar-
gaining. Even Milberg, Johnson, and Leibowitz testified
to that effect, although Johnson and Leibowitz testified
that Leibowitz told the employees that he would close
the operation rather than accept Local 1181 because of
the violence that he associated with Local 1181: even if
true, which I do not find, this is not a defense to a threat
to close if the employees choose to be represented by a
union. I find it unnecessary to make a determination as to
whether Leibowitz referred to Local 1181 or any union,
and whether Leibowitz threatened to bring the employee
responsible for organizing the garage "in front of' the
other employees (as testified to by Ortiz and Colognna).
Leibowitz clearly threatened to close Respondent's oper-
ation if the employees chose to become represented by a
union (whether Local 1181 or any other union) and the
1269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement therefore violated Section 8(a)(l) of the Act.
N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969);
Knapp Foods, Inc. d/b/a Hi-Lo Foods, 247 NLRB 1079
(1980).
As regards the card solicitation and the subsequent ex-
ecution of the collective-bargaining agreements with
Local 118, the sequence of events that Respondents
would have us believe is as follows: Johnson learned of
the existence of Local 118 from employees of a company
owned by his sister-in-law; he called Local 118 and re-
ceived blank authorization cards from it on Friday, Oc-
tober 26, at or about 4 o'clock. During that afternoon
and on Monday morning, October 29, he solicited and
received signed authorization cards from 22 to 24 four
drivers and mechanics (and the cards are dated between
October 26 and October 29); on that same Monday
morning, he returned the signed cards to Local 118. The
earliest that Local 118 could have made its demand upon
Respondents therefore was on Monday, October 29, and
yet Leibowitz testified that after the proposed contracts
and the demand for recognition was made upon him by
Local 118 he "took it home and I did some deep soul
searching." Whereas in other situations this might be
fairly credible, it is completely lacking in credibility by
the fact that the contract that Leibowitz signed was ex-
ecuted on the same day, October 29. Additionally,
Leibowitz testified that he first heard from Valvo about
a week or two prior to this date, long before any of the
authorization cards were signed or even received by
Johnson. And, finally, Leibowitz gave Rosalie and
Martin Gurber the contracts that Valvo left with him for
Respondent Hillside and Respondent Bellrose, and these
contracts are also dated October 29.
The only portion of this that is credible is Johnson's
admitted solicitation of cards from a majority of Re-
spondents' drivers and it is therefore necessary to deter-
mine whether Johnson is a supervisor within the mean-
ing of the Act. At the time, Johnson earned between $50
and $1 11 a week more than the other drivers. Although
Johnson does not hire or fire employees, I find that
during the period in question he responsibly directed the
work of employees in a manner that required the use of
independent judgment. Johnson was clearly the man in
charge at the garage; although Respondents attempted to
portray him simply as an employee who relayed instruc-
tions from Leibowitz and Milberg to the drivers, he was
clearly more than that. He corrected problems that the
drivers had and he dispatched mechanics when buses
broke down. In addition, he answered complaints from
parents of school children and principals of schools serv-
iced by Respondents. Johnson, on his own, corrected the
difficulty that Patrick Morgan was having with the
number of children on his bus. In addition, I credit the
testimony of De Fina, Colognna, and Ortiz that at the
September 6 meeting Leibowitz informed the employees
that Johnson was the dispatcher and he would be in
charge at the garage. In fact, it is reasonable to believe
that with approximately 27 drivers operating out of the
garage the operation would require one individual who
could responsibly direct the work of the drivers, and this
is buttressed by the fact that a few months later Re-
spondents hired a general manager for the garage. I
therefore find that Johnson was a supervisor within the
meaning of Section 2(11) of the Act'9 and, although
there is no specific evidence that Respondents instructed
Johnson to solicit the cards on behalf of Local 118, I
find that by Johnson's actions Respondents violated Sec-
tion 8(a)(1) and (2) of the Act.2 0 I find, in the alterna-
tive, that, as the drivers viewed Johnson as the man in
charge of the garage (as Leibowitz had informed them at
the September 6 meeting) and as somebody who spoke
for management 2 (he relayed instructions from
Leibowitz and Milberg to the drivers), Respdndents are
responsible for his actions in soliciting these'authoriza-
tion cards, and thereby violated Section 8(a)(17 and (2) of
the Act. 22
Having found that Respondents violated Section
8(aXl) and (2) of the Act by Johnson's solicitation of au-
thorization cards on behalf of Local 118, the issue re-
mains whether Respondents, by entering into the collec-
tive-bargaining agreements with Local 118 on October
29, violated Section 8(a)(1) and (2) of the Act, and of
this there can be little doubt. As a majority of the au-
thorization cards for each of Respondents' employees
were solicited by Johnson, Local 118 did not enjoy the
support of an uncoerced majority of Respondents' (or
any of Respondents) employees on October 29 and Re-
spondents therefore violated Section 8(a)(1) and (2) of
the Act by executing these collective-bargaining agree-
ments with Local 118. In addition, as these collective-
bargaining agreements contain union-security provisions,
Respondents also violated Section 8(a)(1) and (3) of the
Act.2 3
As stated, supra, I would generally credit the testimo-
ny of De Fina over that of Leibowitz and Johnson; I
would also credit De Fina's version of the October 26
incident with Leibowitz wherein Leibowitz asked him to
sign a card for Local 118 and told him that, if he did not
do so, "You can't work for me." Although Leibowitz
denied the incident, and Pezella testified that he saw
Johnson give De Fina an authorization card on October
29, I would still credit De Fina for the reasons stated
supra. I therefore find that by such actions Respondents
violated Section 8(a)(1) and (2) of the Act.24
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083, 1089 (1980), the Board set forth the rule it
will henceforth apply in dual-motive or pretextual dis-
charge cases such as the instant matter: "First, we shall
require that the General Counsel make a prina facie
showing sufficient to support the inference that protected
LJ9 ay Dee Transportation. Inc., 243 NLRB 638; Suburban Transit Corp.,
203 NLRB 465 (1973).
o0 Mason City Dressed Beef Inc., et al., 231 NL RB 735 (1977).
31 Johnson informed Respondents' drivers that Leibowitz "might go
along with" Local 118 rather than Local 1181.
a2 Samuel Liefer and Harry Ostreicher, a copartnership, d/b/a River
Manor Health Related Facility. 224 NLRB 227 (1973); Joint Industry
Board of the Electrical Industry and Pension Committee. et al, 238 NLRB
1398 (1978); B-P Custom Building Products. Inc.: et al. 251 NLRB 1337
(19S0).
a" Roberts Electric Ca. Inc., 227 NLRB 1312 (1977); Siro Security Serv-
ice. Inc., 247 NLRB 1266 (1980); Rosa A. Alexander d/b/a A & B Janitori-
al Servce, 253 NLRB 508 (1980).
14 Siro Security Service. Inc., supra; Mason City Dressed Beef Inc., supra;
Sanford Home for Adults, 253 NLRB 1132 (1981).
1270
HILLSIDE BUS CORP.
conduct was a 'motivating factor' in the employer's deci-
sion. Once this is established, the burden will shift to the
employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct."
As stated, supra, I have found De Fina and Schwally,
inter alia, more credible than Respondents' witnesses in
all areas, including dismissal time at PS 197; in addition,
I found Outcalt, who is still employed at the school, to
be a credible witness. I therefore find that, at the time in
question, dismissal time at PS 197 was 2 o'clock. Howev-
er, that does not end the inquiry; under Wright Line,
supra, I must first determine whether there has been a
prima facie showing that De Fina's protected conduct
was a "motivating factor" in his discharge. Firstly, what
protected activity did De Fina engage in? He refused to
sign the Local 118 authorization card when requested to
do so by Leibowitz on October 26; in addition, shortly
after October 29, he called Local 1181 and, together
with other of Respondents' drivers, spoke to fellow em-
ployees in a restaurant three or four blocks from Re-
spondents' garage about the advantages of Local 1181
over Local 118. However, there is no evidence that Re-
spondents had knowledge of these activities by De Fina
on behalf of Local 1181 and, considering the nature of
Respondents' operations (employees away from the
garage for a large majority of their work hours) and the
number of employees involved, I will not impute knowl-
edge of these activities to Respondents under the "small-
plant doctrine." Wiese Plow Welding Co., Inc., 123 NLRB
616 (1959); A to Z Portion Meats Inc., 238 NLRB 643
(1978). I make this finding even considering Johnson's
statements to Schwally on the bus on November 14, and
the fact that Johnson's wife and son-in-law are employed
as drivers for Respondents, thereby increasing the possi-
bility that Respondents learned of De Fina's activities on
behalf of Local 1181.
On November 14, Schwally arrived at the garage be-
tween 1:25 and 1:30. This was the usual time that she
met De Fina because she asked Johnson where he was,
and, when Leibowitz called and asked her what time
they go out on their run, she answered, "Just about
now." Admittedly, De Fina was not at the garage by at
least 1:35, the time that Schwally and Johnson left to go
to PS 197. If De Fina arrived just as Johnson and
Schwally were leaving they could have arrived at the
school by 1:50 (the usual time they arrived according to
Schwally's testimony). However, that only left them 10
minutes before they would be late, and when Leibowitz
spoke to Schwally he had no way of knowing that De
Fina would arrive by 1:45 or 1:50. As Schwally testified
that when she and Johnson arrived at the school the
children and teachers were already outside, it is reason-
able to assume that the weather was nice that afternoon
and the teachers took the children outside early (as testi-
fied to by Outcalt). De Fina, who had been on this run
for about 6 weeks, was aware of this procedure and
should not have waited until the last minute before arriv-
ing at the garage, even if he were not literally late. What
makes this situation more troubling is that, while De
Fina was fired, ostensibly, because he arrived at the
garage a few minutes late for his run on November 14,
William Chan, who replaced De Fina, arrived at PS 197
at 2:45 on November 16 and he was not fired. The Gen-
eral Counsel would allege that this disparate treatment
was caused by De Fina's protected activities. But I have
found that the protected activity engaged in by De Fina,
and known by Respondents. was solely his refusal to ex-
ecute the Local 118 authorization card tendered to him
by Leibowitz. Although it is clear that Leibowitz had a
consummate hatred for Local 1181, it must be noted that
Patrick Morgan, James Morgan, and Colognna refused
to sign Local 118 authorization cards when solicited by
Johnson on October 29, and did not join Local 118 until
the 30-day period was to expire at the end of November,
and Respondents took no action against them. In addi-
tion, at the Novermber 1 meeting with Local 118 and Re-
spondents' employees, Colognna spoke against the con-
tract and his employment was not affected. Also of some
significance is that on November 14 Respondents had an
existing collective-hargaining agreement with Local 118
(although as I have to;mnd, supra, they were unlawfully
executed) containing union-security provisions requiring
the employees, including De Fina. to join I ocal 118
within 30 days. Respondents argue that it had no reason
to discharge him to "force him into line" since he would
have had to join Local 118 by the end of November re-
gardless, and this is somewhat persuasive, although Re-
spondent might still wish to rid itself of a dissident such
as De Fina.
A further question remains: Did Respondent have any
other lawful reason to discharge De Fina other than his
late arrival on November 14? A number of reasons
appear: the accident on September 28 for which Re-
spondents received a lot of "heat" from Sister Enid and
possibly the Board of Education (although De Fina testi-
fied that his bus was not moving when the accident oc-
curred, it probably caused Respondents some difficulty);
the complaints that Sister Enid passed along to
Leibowitz, Milberg, and Johnson regarding complaints
from her students' parents of late pickups (since this was
hearsay testimony on the part of Sister Enid, I have not
assumed that the complaints were true); De Fina's speed-
ing ticket (even though De Fina testified that the charge
was dismissed, the propriety of driving a school bus at
49 miles an hour is questionable); the uncontradicted tes-
timony of Parke and Haroon that they observed De Fina
driving recklessly and informed Respondents of the inci-
dents; and the incident where De Fina picked up two
adults, which violated Respondents' or Board of Educa-
tion rules. Furthermore, it is uncontradicted that
Leibowitz was in September aware that De Fina was, at
times, driving at an excessive speed because, when De
Fina informed him of the September 28 accident,
Leibowitz told him to "slow down." All of these inci-
dents occurred prior to De Fina's refusal to sign the
Local 118 authorization.
On the basis of all the above, I reluctantly find that
the allegation that De Fina was discharged in violation
of Section 8(a)(l) and (3) of the Act should be dismissed;
reluctantly because of the extremely suspicious nature of
the discharge. At first glance it appears that the General
Counsel has established the prima facie case required by
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright Line, supra, considering the animus Respondents
had for Local 1181, the other unfair labor practices they
committed, that the discharged occurred 2 weeks after
De Fina refused Leibowitz' request to sign an authoriza-
tion card on behalf of Local 1181, and that De Fina's
dereliction of duty on November 14 was a minor one (if,
in fact, there was any dereliction at all). However, when
one looks at the remaining portion of the record, and
more particularly De Fina's limited protected activities,
his work record which included numerous incidents over
only a 2-month period, and that three other employees
also refused to sign authorization cards on behalf of
Local 118 at the same time as De Fina without any con-
sequences, it becomes clear that the General Counsel has
not sustained his burden that De Fina's action in refusing
to execute the Local 118 authorization card was a "moti-
vating factor" in his discharge. Wright Line, supra. I shall
therefore dismiss the allegation of the complaint that Re-
spondents violated Section 8(a)(1) and (3) of the Act by
discharging De Fina.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth above in sec-
tions III through V, above, occurring in connection with
Respondents' operations described in section I, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Respondents constitute a single integrated enterprise
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 118 and Local 1181 are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The Respondents, by Austin Leibowitz, its agent,
violated Section 8(a)(1) of the Act by threatening to
close its business operation if the employees chose to be
represented by Local 1181, or any union, as their repre-
sentative for purposes of collective bargaining.
4. The Respondents, by Richard Johnson, its supervi-
sor, violated Section 8(a)(1) and (2) of the Act by solicit-
ing its employees to sign authorization cards for Local
118.
5. The Respondents, by Leibowitz, its agent, violated
Section 8(a)(l) and (2) of the Act by soliciting an em-
ployee to sign an authorization card for Local 118, and
threatening said employee with discharge if he failed to
sign the card.
6. The Respondents violated Section 8(a)(1), (2), and
(3) of the Act by entering into collective-bargaining
agreements containing union-security provisions with
Local 118 on October 29, 1979, at a time when Local
118 did not represent an uncoerced majority of Respond-
ents' employees in an appropriate unit.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 25
The Respondents, a single integrated business enter-
prise comprised of Respondent Hunter Transit Corp.,
Respondent Hillside Bus Corp., and Respondent Bellrose
Bus Corp., their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with closing its business op-
eration if they chose to be represented by Local 1181, or
any union, as their representative for purposes of collec-
tive bargaining.
(b) Giving assistance and support to Local 118 in ob-
taining authorization cards from its employees.
(c) Threatening its employees with discharge because
of their refusal to execute authorization cards on behalf
of Local 118.
(d) Recognizing or contracting with Local 118 or any
successor thereto, as the representative of any of its em-
ployees for purposes of collective bargaining, unless and
until said labor organization has been certified by the
National L.abor Relations Board as the exclusive bargain-
ing representative of such employees.
(e) Giving effect to, performing, or in any way enforc-
ing its contract effective October 29, 1979, or any modi-
fication, extensions, or renewals thereof, or any other
contract, agreement, or understanding entered into with
Local 118, or any successor thereto, relating to griev-
ances, labor disputes, wages, rates of pay, hours of em-
ployment, or other terms and conditions of employment,
unless and until said labor organization shall have been
certified by the Board as the exclusive representative of
employees; provided, however, that nothing in this Deci-
sion and Order shall require Respondents to vary or
abandon any wage, hour, seniority, or other substantive
feature of its relationship with its employees which Re-
spondents have established in the performance of this
contract, or to prejudice the assertion by employees of
any rights they may have thereunder.
(f) Giving effect to checkoff authorization forms ex-
ecuted by its employees on behalf of Local 118.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights them
guaranteed by Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act:
(a) Reimburse its employees for all fees, dues, or other
money deducted from their pay for Local 118 pursuant
to the provisions of the collective-bargaining agreements
entered into by Respondents and Local 118 on October
29, 1979, or any subsequent collective-bargaining agree-
ment entered into by Respondents and Local 118.
(b) Preserve and, upon request, make available to the
Board or its agents payroll and other records necessary
to determine the amount due under paragraph (a) supra
2a In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order shall, as provided by Sec-
tion 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1272
HILLSIDE BUS CORP.
* (c) Post at its Rockaway, New York, garage and office
copies of the attached notice marked "Appendix."26
Copies of said Notice, on forms provided by the Region-
al Director for Region 29, after being duly signed by
their authorized representative, shall be posted by Re-
spondents immediately upon receipt thereof, and be
'" In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
emqloyees are customarily posted. Reasonable steps shall
be taken by Respondents to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated amend-
ed complaint be dismissed with respect to the allegations
not specifically found herein to be violative of the Act.
1273