Jay Dee Transportation, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1979

243 N.L.R.B. 638 (N.L.R.B. 1979)

I)t('ISI()NS ()F NAIONAI_ LABOR REI.A(IONS BOARD
Jay Dee Transportation, Inc. and Tom For Transpor-
tation Corp. and IAcal 854, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 29 C'A 6436
July 23, 1979
DECISION AND ORDER
BY CIAIRMAN FANNING ANI) MEMBERS JENKINS
ANI) TRU ISI)AIL.
On May 15, 1979, Administrative aw Judge Mar-
vin Roth issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of' Section 3(h) 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 [)ecision in light of the exceptions and brief
and has decided to affirm the rulings. findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Jay Dee Transportation,
Inc., and Tom For Transportation Corp., Commack.
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I In sentences 10. 11, and 13 in sec. Il,A. of his Decision the Administra-
tive Law Judge inadvertently referred to the testimony of James DeLuca as
being that of Tom Terranova. We hereby correct these errors.
DECISION
STATEMENT OF TIlE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard in Brooklyn, New York, on December 14, 1978. The
charge was filed on May 30,' by Local 854, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein the Union). The complaint,
which issued on July 14, alleges that Jay Dee Transporta-
tion Inc. and Tom For Transportation Corporation (herein
respectively Jay Dee and Tom For and collectively the
Company or Respondent), violated Section 8(a)(1) of the
National Labor Relations Act, as amended. The gravamen
t All dates herein are in 1978 unless otherwise indicated.
of' the complaint is that the ('ompavy, by its alleged super-
visor and agent, Lead Bus Driver Rose Marousek. warned
and directed its employees from becoming or remaining
members of the Union or giving assistance or support to the
Union; threatened its employees with plant closure or other
reprisals if' thev became or remained members of the Utnion
or gave it assistance or support: and in the presence of
employees threatened officials and representatives of' the
Union with bodily harm. The (omnpany's answer denies the
commission of the alleged unfair labor practices. All parties
were afforded full opportunity to participate, to present rel-
evant evidence, to examine and cross-examine witnesses, to
argue orally. and to ile briefs. Only the General Counsel
submitted a brief.'
Upon the entire record in this case and from my obsera-
tion of the demeanor of the witnesses, and having consid-
ered the arguments of the counsel and the brief submitted
by the General Counsel, I make the following:
FINI)I(s ()I I A(
I. Itt BStINESS () Ilie RISPOI()ENI
Jay Dee and Tom For are New York corporations which
merged their respective businesses in 1961. The principals
are James D)eLuca, who is president of. Jay Dee and vice
president of Tom For, and Charles Tomeo, who is president
of Tom For and secretary of Jay Dee. It is undisputed that
at all times material Jay Dee and I'om For. i.e.. the Com-
pany, were and are a single integrated enterprise engaged in
the business of providing bus transportation services and
related services, with a common labor policy, and together
constitute a single employer within the meaning of the Act.
The Company maintains its principal office and place of
business in Roosevelt, New York, and maintains terminals,
known as yards, in Roosevelt, Hicksville, Amityville, Hol-
brook, and ('ommack, New York. The alleged unfair labor
practices took place at the Commack yard. In the operation
of its business, the Company annually receives gross rev-
enues in excess of $250,(00 and annually purchases supplies
valued in excess of $50,(00 directly from firms located out-
side the State of New York. I find, as the Company admits.
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Notwithstanding its admission that it is an employer
within the meaning of the Act, and therefore subject to the
Board's jurisdiction, the Company argued at the hearing
that the Board should decline to assert its jurisdiction to
remedy unfair labor practices in this case because most of
the Company's operation consists of transporting public
and parochial school children pursuant to the Company's
contracts with various school districts. The Company relied
on the authority of Roesch Lines, Inc., 224 NL.RB 203
(1976). in which the Board (Members Fanning and Jenkins
dissenting) applied the so-called "intimate connection"
standard. Under this test, the Board may decline to assert
its jurisdiction over a private employer who performs ser-
vices for a governmental entity, which services are tradi-
tionally performed by such entities themselves. The lead
2 The Company requested leave to file a brief. but did not submit one.
243 NLRB No. 114
638
JAY DEE TRANSPORTATION. INC., ET AL..
case authority for the intimate connection standard was Ru-
ral Fire Protection Comnpanv, 216 NLRB 584 (1975). How-
ever, in National ransportation Service, Inc., 240 NLRB
565 (1979)., which issued subsequent to the hearing and
time for submission of briefs in this case, the Board aban-
doned the intimate connection standard. The Board held, in
essence, that it would assert jurisdiction over an employer
with close ties to an exempt entity if: ( I ) the employer itself
meets the definition of "employer" in Section 2(2) of the
Act; and (2) the employer has sufficient control over the
employment conditions of its employees to enable it to bar-
gain with a labor organization as their representative.
National Transportation for all practical purposes under-
cuts any possible basis for declining to assert jurisdiction in
this case. As indicated, the Company admits that it is an
employer within the meaning of the Act. The school dis-
tricts with which the Company does business exercise no
discernible control over the Company's employees with re-
gard to hiring, firing. supervision, discipline, work assign-
ments, or the conferring of benefits. Indeed the Company
does not contend otherwise. Supervision of drivers and
other employees is exercised exclusively through the Com-
pany's own supervisory personnel. The Company fixes
wage scales and benefit programs for its employees which
are uniform, notwithstanding that the Company performs
services for a multiplicity of school districts as well as for
private schools, at varying rates of compensation. There-
fore, the evidence indicates that the Company has sufficient
control over the employn.ent conditions of its employees to
enable it to bargain with a union as their representative.
and it is appropriate to assert the Board'sjurisdiction in this
case. National Transportation, supra,' Kal Leasing, Inc., 240
NLRB 892 (1979). Even if the intimate connection standard
were still in effect, it would not preclude exercise of the
Board's jurisdiction in this case. The Company's contracts
with school districts provide almost entirely for the trans-
portation of handicapped children. In United Services for
the Handicapped, 239 NLRB 976 (1978). the Board held
that such services are not those that a city, county, or state
would normally be required to provide, and therefore that
the intimate connection standard would not be applicable.
11. THE .ABOR ORGANIZAIO)N IN V()I[VD
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. TE AI.I.E(iI) iUNFAIR ABOR PRAt II('S
A. The Status of Rose Marousek
Tom Terranova, whose title is dispatcher, and who nor-
mally works at the Amityville yard, is nominally in charge
of the Company's three yards in Suffolk County-Amityville.
Holbrook, and Commack. The Commack complement con-
sists of about 55 bus drivers, 21 matrons (who care for the
children on the buses), two mechanics, and Lead Driver
Rose Marousek, who is the highest ranking individual at
Commack. In addition to Terranova, there is a lead driver
at Amityville (Eileen Ehrhardt), and another at Holbrook.
There are about 35 drivers based at Holbrook and some 100
drivers based at Amityville, including spare drivers who
may as needed be transferred to runs in and out of the other
yards. It may also be fairly inferred that the Amityville and
Holbrook yards have matrons and mechanics in at least the
same proportion to drivers as at Commack. Terranova. as
an adverse witness for the General Counsel, testified that he
visits the Commack terminal about once or twice a month.
The Company denies that its lead drivers, and specitically,
Rose Marousek are supervisors within the meaning of the
Act. If so, this would mean that the Company has only one
first-line supervisor for some 250 employees at three yards,
and that some 80 employees at Commack normally func-
tion without any immediate and responsible supervision.
The facts and figures belie the Company's position. Even
Tom Terranova, who as a company witness eidenced a
determination to "stonewall it" by denying that Marousek
exercised even the most rudimentary discretion in dealing
with the Commack employees, was forced to admit in his
testimony that Marousek did in fact exercise functions of a
supervisory nature. Terranova testified that when a bus
breaks down or the driver has a problem with a child or
children which requires assistance (the latter being a ery
real problem as most of the passengers are children with
learning or other difficulties), Marousek may on her own
initiative dispatch someone to help. Alternatively, Marou-
sek may instruct the driver or matron as to how to handle
the situation. I do not credit Terranova's attempt to back
away from his admission by asserting that Marousek could
only dispatch help for a breakdown. Terranova also admit-
ted that his lead drivers, including Marousek. prepare disci-
plinary notices to employees for his signature. Jay Dee
President DeLuca, in his testimony admitted that Marou-
sek reports problems to company dispatchers and "possi-
bly" makes recommendations (Terranova is the only dis-
patcher in Suffolk County. the other two being in charge in
Roosevelt and Hicksville. respectively).
I find incredible. Terranova's assertion that he learns of
employee infractions of company rules or employee traffic
violations directly from the drivers themselves, or on his
own or from some unknown source- anyone, but Marou-
sek. As Marousek is the only person who is normally in
regular two-way radio contact with the Commack drivers, it
is evident that she is the normal and usual source of such
information. I also find incredible, Terranova's assertion
that he personally, without any assistance from his three
lead drivers. reviews a total of nearly 1.000 daily logs,
which are turned in by the drivers to the lead driver each
week. in order to determine whether drivers are taking or
claiming too much time on their runs. I credit the testimony
of driver Marie Benedetto and former driver Josephine
Caputo that Marousek reviews the logs herself, and the tes-
timony of Caputo that Marousek will warn employees who
she believes are taking too much time. I further credit the
testimony of Caputo that Marousek will hire drivers with-
out prior approval from Terranova. It is undisputed that
Marousck is rarely needed as a substitute driver. If she does
not exercise supervisory authority. then it is difficult to see
what function she does perform. other than to serne as a
bottleneck between the employees and responsible supcri-
sion. It is unlikel\ that the drivers would be in constant
639
DIC)FCISIONS OF NATIONAl. LABOR RA'l IONS BOARD
radio communication with Marousek ift' there was little or
nothing she could do about their problems and requests
except to tell them to call Terranova. If such were the case,
the drivers could save much time and trouble by contacting
Terranova directly, and the Company could dispense with
Marousek's superfluous services. Furthermore, as will be
discussed, the statements attributed to Marousek. which
constitute the alleged unfair labor practices in this case, and
which are uncontroverted. coupled with the employees' re-
sponses to those statements, evidence that Marousek did in
fact responsibly direct the work of the Commack employ-
ees, and exercise close day-to-day control over the opera-
tion at Commack.) I find that Marousek had authority to,
and did, in the Company's interest, responsibly direct em-
ployees in their work, and hire, assign and discipline em-
ployees, and effectively recommend such action, including
discharge. Therefore, Marousek was and is an agent of the
Company, acting on its behalf, and a supervisor within the
meaning of Section 2(1 1) of the Act.
B. The A legedl Unlafid C(onduc!
On May 17 the Union commenced an organizational
campaign with a meeting at which about six company em-
ployees were present. On the morning of' Friday, May 19,
union organizer Frank Galgano, accompanied by two vol-
unteer organizers who were employees of another bus com-
pany, went to the Company's Commack yard to distribute
union literature and solicit support among the employees.
The three organizers stood outside the gate, on public prop-
erty, and distributed literature and talked to the employees
as they arrived at the yard to begin their runs. Thereafter
the organizers heard a commotion with yelling, and Rose
Marousek came up to the gate. Many of the drivers were
nearby and could hear what she said. The testimony of
Galgano and employee organizer Frances McFall concern-
ing her remarks is uncontroverted. Marousek yelled at the
organizers: "We don't want you union people here because
you're nothing but trouble. Get the hell out of here and stay
away from my workers." Marousek added that if a union
came into the plant they would have to close up. Before
returning, Marousek told the organizers "and stay away
stay the hell away from here before you get hit by a bus."
Sometime later, as buses entered the yard, organizer
McFall heard a woman's voice on a bus two-way radio
telling the drivers not to stop at the gate because there were
people from a union there, to pull right into the yard. and
not to speak to them. Although many drivers had been re-
ceptive to the organizers when they first arrived, the drivers
I The Company called Marousek as a witness, but only or a limited pur-
pose which I ruled to be immaterial to the issue of her status. I he Company
offered to prove that some years earlier Marousek voted without challenge in
a Board election. and that herjob had not changed since that time I rejected
the offer. Marousek's status was never litigated or adjudicated in either a
representation or an unfair labor practice proceeding. herefore the prol-
erred matter, even if proven, would not preclude a finding on the e idence
adduced in this case that Marousek was a supervisor. NL. RB v F.loit
Wilianms, ('o, Inc. 345 F.2d 460, 463 (7th ('ir. 1965) Southern Pailn &
Waerprooing (,a. Inc., 230 NI.RB 429. 436 (1977)1 Duo-Bed (i,,rporafitn.
172 NI.RB 1581, t. 1 (11968).
now tended to roll up their windows or throw the literature
back to the organizers.
The inference is warranted, and I so find, that the voice
on the two-way radio was that of Rose Marousek. Marou-
sek was the only person, and specifically the only woman,
who was in regular radio contact with the drivers, and the
instruction was consistent with her earlier remarks to the
organizers. As indicated. the Company presented Marousek
as a witness, but she did not deny making any of the state-
ments attributed to her, including the instructions over the
two-way radio. T'herefore, the logical inference may be
drawn. As the organizers were stationed on public property.
the Company had no legitimate reason to prohibit contact
between its employees and the organizers. The organizers
were stationed off the driveway. There is no evidence that
they were standing in an unsafe location. Therelfore the in-
lerence is warranted and I so find. that Marousek was not
concerned with their safety, but was threatening them with
violence. I find that the Company, by Marousek violated
Section 8(a)(I) of the Act by warning and instructing its
employees not to communicate with the union organizers;4
by threatening them with plant closure it' they designated or
selected a union as their bargaining representative; and in
the presence of employees, by threatening the organizers
with bodily harm.' As two of the organizers were also em-
ployees, the Company's unlawful conduct interfered with
their statutory right to communicate with other employees
as well as with the statutory rights of the Company's own
employees.
CO)N(CI SIONS O{) LAWA
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, the Company has engaged, and is engaging in un-
fair labor practices within the meaning of' Section 8(a)( ) of
the Act.
4. The aoresaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act, and it would effectuate the purposes
of the Act for the Board to assert itsjurisdiction in this case.
I [1 RI hNi))Y
Having found that the Company has committed viola-
tions of Section 8(a)( I) of the Act I shall recommend that it
be required to cease and desist therefrom and to post ap-
propriate notices. In view of the serious nature of the unfair
labor practices found herein, including a threat of violence
and a threat of plant closure, I am recommending that the
Company be ordered to cease and desist from infringing in
4 See Square Binding and Rulin (.. In(., 146 NL. R Bt 206. 213 (1964)1 see
also Giant Fd Markrts. Inc. 241 NLRB 727 1979).
'See lfarlent Industrie (rp,,raion. t al. 166 NI.RB 703. 740 (1967).
entd. suh nonm. Decalumri/le Sportner ('o I. in al el. v N I. R B. 406 .2d
886 6th C(r. 1969).
640
JAY DEE TRANSPORTATION. INC.. ET AL.
any manner upon the rights guaranteed in Section 7 of the
Act.6 In view of the integrated nature of the ('ompany's
operations. including frequent transfers of personnel from
one yard to another, and the fact that the Company's un-
lawful conduct interfered with an organizational campaign
which extended to all of the Company's yards. I shall direct
that an appropriate notice be posted at the Company's
main office and at each of its yards. Wonder Markerts,r Inc..
236 NLRB 787, 791 (1978).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER7
The Respondent. Jay Dee Transportation, Inc., and Tom
For Transportation Corporation, Commack. New York. its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Warning or directing employees not to talk to union
organizers.
(b) Threatening union organizers with violence.
(c) Threatening employees with plant closure if' they des-
ignate or select a union as their bargaining representative.
(d) In any other manner interfering with. restraining, or
coercing employees in the exercise of their rights to orga-
nize: to form, join, or assist labor organizations to bargain
collectively through representatives of their own choosing:
to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection: or to
refrain from any and all such activities.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Post at its offices in Roosevelt, New York. and at
each of its yards, including its yard in Commack. New
York, copies of the attached notice marked "Appendix.'
I See N.L.R B. . Gissel Packing Co, Inc., 395 U.S. 575. 589. 615 (1969}:
Muhi-Naional Ftd Service. Division of Schwan' Sales Enterprise. Inc. 238
NLRB 1031 (1978).
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Ltabor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided n Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived for all purposes.
I 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 "Posled Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 29. after being duly signed by Respon-
dent's authorized representative, shall be posted by Respon-
dent immediately upon receipt thereof. and be maintained
by it for 60 consecutive days thereafter. in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered. defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 29. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPN 1)1 X
No i( u To Espil oY.ElIs
PosIt) BY ORDER OF 111t
NAII)ONAI LABOR RI ATIONS BOARI)
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act.
as amended, and has ordered us to post this notice and to
carry out its provisions.
VWL Wll. NOt warn or direct employees not to talk
to union organizers.
Wi wll.i. NIt threaten union organizers with vio-
lence.
Wti i II ) so threaten employees with plant closure
if they designate or select a union as their bargaining
representative.
Wt Wi II Ntl in any other manner interfere with.
restrain, or coerce employees in the exercise of their
rights to organize. to orm, join, or assist labor organi-
zations, including Local 854. International Brother-
hood of leamsters. (hauffeurs. Warehousemen and
Helpers of America. to bargain collectively through
representatives of their own choosing. to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities.
All our employees are free to become, remain or refuse to
become or remain. members of said LOCAL 854 or any
other labor organization.
JAY DI-l TRANSP()RIAII()N. IN(. AND ToM FOR
TRANSI')R A I I()N CORPORA I I()N
641