Laidlaw Transit

National Labor Relations Board - Board Decisions

Aug 25, 1995

318 N.L.R.B. 695 (N.L.R.B. 1995)

695
318 NLRB No. 85
LAIDLAW TRANSIT
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge inadvertently failed to give a make-whole order for the
discrimination found concerning Lori Bailey. We correct this error.
Laidlaw Transit, Inc. and Rhode Island Laborers’
District Council on behalf of its affiliated Local
Union 15. Cases 34–CA–5482 and 34–CA–5770
August 25, 1995
DECISION AND ORDER
BY MEMBER STEPHENS, COHEN, AND TRUESDALE
On March 26, 1993, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed exceptions, a supporting
brief, and a response to the General Counsel’s excep-
tions.
The Board has considered the record in light of the
exceptions and brief and has decided to adopt the
judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order of the administrative
law judge to the extent consistent with this Decision
and Order.
*ERR14*The General Counsel excepted to the
judge’s failure to make a specific conclusion of law
that the Respondent violated Section 8(a)(1) and (3) of
the Act by discriminatorily utilizing nonunion employ-
ees to drive with more frequency, instead of making
job offers to North Stonington drivers. We find merit
to this exception. The judge found that credible evi-
dence showed that the Respondent engaged in this dis-
criminatory practice. We agree and we will therefore
add this conclusion of law, and grant appropriate relief.
We adopt the judge’s finding that the Respondent
lawfully maintained two seniority lists, one at the
Stonington terminal and one at the North Stonington
terminal. However, we agree with the General Coun-
sel’s contention that the judge erred in failing to distin-
guish between employees’ ‘‘longevity’’ status and their
‘‘seniority’’ status. Undisputed record evidence shows
that, according to established practice, longevity was
calculated on the basis of a driver’s years of service
with the Employer, whereas seniority was calculated
solely on the basis of service at a particular terminal.
Longevity, unlike seniority, was transferable whenever
a driver moved from one terminal to another. Although
seniority affected such matters as bumping rights, lon-
gevity was used to calculate wages and benefits. We
therefore find that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to appropriately
take account of longevity in calculating the pay and
benefits of reinstated North Stonington drivers, without
having given the Union notice and an opportunity for
bargaining over a change in the longevity method for
determining wages and benefits. We will leave to com-
pliance the determination of which employees suffered
losses because of this violation and the amounts in-
volved.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 4 and 5
and renumber subsequent conclusions accordingly:
‘‘4. By using nonunit employees as drivers to avoid
making job offers to North Stonington drivers, the Re-
spondent has violated Section 8(a)(1) and (3) of the
Act.’’
‘‘5. By failing to take account of longevity in calcu-
lating the pay and benefits of reinstated North
Stonington drivers without giving the Union notice and
an opportunity to bargain over this change in the meth-
od of determining wages and benefits, the Respondent
has violated Section 8(a)(5) and (1) of the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Laidlaw Transit, Inc., Stonington and
North Stonington, Connecticut, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging, disciplining, or taking away work
from any employees because of their membership in or
activities on behalf of the Union.
(b) Withholding annual wage increases because its
employees selected the Union as their collective-bar-
gaining representative.
(c) Refusing to recall or rehire, or delaying the re-
call or rehire of, employees because of their union
membership or activities.
(d) Utilizing nonunit employees as drivers in order
to avoid making job offers to the North Stonington
drivers.
(e) Bargaining in bad faith by soliciting employee
grievances or bypassing the employees’ elected bar-
gaining representative by attempting to deal directly
with the employees.
(f) Bargaining in bad faith by withdrawing a con-
tract offer on its acceptance by the Union.
(g) Unilaterally changing terms and conditions or
employment by withholding annual wage increases or
by changing the charter bid system without notifying
the Union or giving it an opportunity to bargain about
such changes.
(h) Failing to pay reinstated North Stonington driv-
ers according to longevity without bargaining with the
Union over changes in the longevity formula.
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time drivers and
monitors employed by the Employer at its
Stonington and North Stonington, Connecticut fa-
cilities; but excluding all other employees, office
clerical employees, and all guards, professional
employees and supervisors as defined in the Act.
(b) Offer Doreen Aymelek immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her in the manner set
forth in the remedy section of this decision.
(c) Offer to the employees who were laid off from
the North Stonington facility in June 1991 immediate
employment or employment in accordance with a pref-
erential hiring list, in the manner described in the rem-
edy section of this decision, and make them whole as
may be appropriately determined at the compliance
stage of this proceeding.
(d) Make whole the employees who were not given
annual wage increases that were withheld for the
1991–1992 school season and returned employees who
were not paid according to their longevity in employ-
ment.
(e) Return to the system of awarding bids for charter
runs in the late afternoon instead of at about noon.
(f) Remove from its files any references to the un-
lawful discharge of Doreen Aymelek and the warnings
issued to Jane Bailey and Cindy Greene in April 1992,
and notify them in writing that this has been done and
that these actions will not be used against them in any
way.
(g) Post at its facility in Stonington, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 34 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that the certification year
be extended for 6 months.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge, discipline, or take work
away from any employees because of their member-
ship in or activities on behalf of Rhode Island Labor-
ers’ District Council on behalf of its affiliated Local
Union 15.
WE WILL NOT withhold annual wage increases be-
cause our employees selected the Union as their collec-
tive-bargaining representative.
WE WILL NOT refuse to recall or rehire, or delay the
recall or rehire of, employees because of their union
membership or activities.
WE WILL NOT use nonunit employees as drivers in
order to avoid making job offers to the North Stoning-
ton drivers.
WE WILL NOT fail to pay reinstated North Stoning-
ton drivers according to their longevity of employment
without bargaining with the Union over changes in the
longevity formula.
WE WILL NOT bargain in bad faith by soliciting em-
ployee grievances or bypassing our employees’ elected
bargaining representative by attempting to deal directly
with our employees.
WE WILL NOT bargain in bad faith by withdrawing
a contract offer on its acceptance by the Union.
697LAIDLAW TRANSIT
WE WILL NOT unilaterally change terms and condi-
tions of employment by withholding annual wage in-
creases or by changing the charter bid system without
notifying the Union or giving it an opportunity to bar-
gain about such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time drivers and
monitors employed by the Employer at its Ston-
ington and North Stonington, Connecticut facili-
ties; but excluding all other employees, office
clerical employees and all guards, professional
employees and supervisors as defined in the Act.
WE WILL offer Doreen Aymelek immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of her discharge.
WE WILL make whole Lori Bailey from January 9,
1991, until employment was offered to her in July
1991, for any loss of earnings and benefits she may
have suffered as a result of the delay in recalling or
rehiring her, with interest.
WE WILL offer to the employees who were laid off
from the North Stonington facility in June 1991 imme-
diate employment or employment in accordance with a
preferential hiring list, and make them whole for any
loss of earnings and benefits that they may have suf-
fered because they were not recalled or rehired.
WE WILL remove from our files any references to
the discharge of Doreen Aymelek and the warnings
issued to Jane Bailey and Cindy Greene in April 1992,
and notify them in writing that this has been done and
that these actions will not be used against them in any
way.
WE WILL make whole the employees who were not
given annual wage increases that were withheld for the
1991–1992 school season, and employees who were
not paid according to their longevity of employment.
WE WILL return to the system of awarding bids for
charter runs in the late afternoon instead of at about
noon.
LAIDLAW TRANSIT, INC.
William E. O’Conner, Esq., for the General Counsel.
Marjorie H. Gordon, Esq. and Julius M. Steiner, Esq.
(Obermayer, Rebmann, Maxwell & Hippel), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Groton and Hartford, Connecticut, on various
dates in August, September, and October 1992. The charge,
first, second, and third amended charges in Case 34–CA–
5482 were filed respectively on November 20 and December
24, 1991, and on January 9 and February 26, 1992. The
charge in Case 34–CA–5770 was filed on July 15, 1992. The
complaint in Case 34–CA–5482 was issued by the Regional
Director on March 31, 1992, and the complaint in Case 34–
CA–5770 was issued on August 11, 1992. In substance the
complaints allege:
1. That since April 20, 1991, the Respondent has deprived
Jane Bailey of opportunities to train other employees and
thereby deprived her of an additional 30 cents per hour for
such work.
2. That on or about June 10, 1991, the Respondent refused
to award certain work to Doreen Aymelek, instead awarding
it to a known antiunion employee (Regina Martin) and that
in June 1991, Aymelek was removed from another assign-
ment which was then awarded to Martin.
3. That in September 1991, the Respondent by its super-
visor, Joyce Warrell, threatened employees with the loss of
medical benefits.
4. That on or about September 3, 1991, the Respondent re-
fused to grant annual wage increases to its employees.
5. That on or about September 3, 1991, the Respondent re-
fused to allow an employee (Cathy Toth) to enroll in its
medical plan.
6. That on or about September 3, 1991, the Respondent
unilaterally changed the seniority status, wages, and benefits
and refused to recall its employees previously laid off at its
North Stonington facility.
7. That since on or about September 3, 1991, the Respond-
ent assigned unit work to nonunit employees in order to
avoid recalling or reinstating the North Stonington employ-
ees.
8. That the actions described in paragraphs 6 and 7 were
done with discriminatory intent and without notifying or bar-
gaining with the Union.
9. That on or about September 3, 1991, the Respondent
without bargaining with the Union unilaterally increased the
cost of medical benefits for its employees.
10. That on September 13, 1991, Respondent discrim-
inatorily discharged Doreen Aymelek.
11. That in October 1991, the Respondent by Ted
Hutcheson, its director of human resources, solicited em-
ployee grievances, promised increased benefits, and bypassed
the Union by dealing directly with employees regarding
terms and conditions of employment.
12. That the Respondent has bargained in bad faith with
the Union during contract negotiations which ran from Janu-
ary 24, 1991, to March 31, 1992, and that Respondent
evinced its intention to avoid reaching an agreement when,
on November 16, 1991, it withdrew a contract offer on being
notified that the Union would accept it.
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Stonington facility consists of a garage, an office, and a
place to keep buses. While people spoke of the North Stonington fa-
cility, that in reality is something of a misnomer as there is nothing
in North Stonington except a place to park buses. Although there
were drivers who were assigned to do regular runs in North
Stonington, the operation there was essentially run from the
Stonington facility.
13. That the Respondent on April 24 and 29, 1992, issued
warnings respectively to Jane Bailey and Cindy Greene be-
cause of their union activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a Delaware corporation with its prin-
cipal offices located in Canada. It is primarily engaged in
providing schoolbus services and much of its business is ob-
tained through the process of making bids to public and pri-
vate school systems. At some of its other facilities located
in Connecticut, the Respondent has collective-bargaining
agreements with various labor organizations. It therefore is
no stranger in dealing with unions.
The locations involved in the present case are Stonington
and North Stonington Connecticut. Before 1986, there was a
predecessor company called Beebee’s which provided
schoolbus services for these two school districts. Some of the
present employees of the Respondent had been employed by
Beebee’s before that company was acquired by the Respond-
ent.
The Respondent purchased Beebee’s in August 1986 and
hired that company’s employees. They were not, at that time,
represented by any labor organization. At the time of the
takeover, the former employees of Beebee’s became part of
Laidlaw’s Madison Connecticut Division which included
over 500 employees. Later in 1988, the Madison Division,
which encompassed most of Connecticut, was broken down
for bookkeeping purposes into several smaller ‘‘divisions.’’
According to Edward LeClerc, the Stonington and North
Stonington facilities became a single division for accounting
purposes.1
When the operation was run by Beebee’s, it appears that
Beebee’s considered North Stonington and Stonington to be
separate divisions and maintained separate seniority lists for
each location. Thus, Beebee’s employee handbook described
seniority as follows:
10. Seniority and Longevity
The seniority list for each division is based on years
of service at that division within the company. Lon-
gevity is based on years of service within the company
regardless of the division worked in. Seniority is not
transferable to another division, as is longevity.
The Respondent asserts that when it took over from
Beebee’s, it maintained the same seniority practice as its
predecessor and accorded the former employees exactly the
same seniority as they had there. This means, according to
the Respondent, that it continued to treat Stonington and
North Stonington drivers as being on separate seniority lists.
In this respect, the Respondent asserts that it adopted, with-
out change, the above-quoted seniority provision from Bee-
bee’s employee handbook and intended to maintain its mean-
ing notwithstanding the fact that later in 1988, it treated
Stonington and North Stonington as a single division for ac-
counting purposes. That is, the Respondent argues that while
treating Stonington and North Stonington as a single ac-
counting division, it never intended to alter or modify the
original practice of Beebee’s in treating each facility as a
separate ‘‘division’’ for purposes of seniority.
Before each school year the Company holds a driver’s
meeting. In late August 1990, the Company announced that
for the upcoming school year there would be annual raises
of 30 cents per hour. At the Stonington meeting, this was
met with consternation as it appears that in previous years,
the drivers had gotten 50-cent raises and therefore expected
this to continue. The drivers at Stonington decided to engage
in a strike and they in turn convinced most of the North
Stonington drivers to join them. Simultaneously, the drivers
delivered a set of demands on the Company which were
signed by 39 employees.
Shortly after the strike began, Jane Bailey, who was the
safety, training, and personnel (STP) supervisor, contacted
the Union on behalf of the employees and most employees
signed up.
On August 31, 1990, the Company sent a letter to the em-
ployees responding to the employees’ demands and indi-
cating its awareness of union activity. Among other things,
it stated that ‘‘if you decide to participate in any interruption
of service you risk losing your current status regarding
wages, benefits, and seniority.’’ On September 5, 1990, Don-
ald Hartley sent another letter to the employees urging them
to return to work.
On September 14, 1990, the Union filed a petition in Case
34–RC–986 and an election was held on November 9, 1990.
The vote was 35 to 6 in favor of union representation and
on November 20, 1990, the Union was certified as the bar-
gaining representative in a unit consisting of:
All full-time and regular part-time drivers and monitors
employed by the Employer at its Stonington and North
Stonington, Connecticut facilities; but excluding all
other employees, office clerical employees, and all
guards, professional employees and supervisors as de-
fined in the Act.
B. The Cast
As noted above, the employee most instrumental in obtain-
ing union representation was Jane Bailey. She had a daugh-
ter, Lori Bailey, who while active in the initial activity, left
the Company before the election because she was having dif-
ficulty with her pregnancy. Two other employees, Cindy
Greene and Donna Mayne, were very active for the Union,
699LAIDLAW TRANSIT
2 By letter dated January 26, 1991, the Company notified the
Union that the North Stonington contract had been put up for bid
and that its bid was substantially higher than that of another con-
tractor.
each being selected as shop stewards. They, along with Jane
Bailey, comprised the employee committee that participated
in the collective-bargaining negotiations. Cindy Greene and
Jane Bailey worked out of the Stonington Terminal and
Donna Mayne worked out of North Stonington. These three
were the most active employees on behalf of the Union, al-
though Jane Bailey testified that other employees who openly
expressed their support for the Union were Cathy Toth, Janet
Rich, Sharon Fish, Karen Simmons, Doreen Aymelek,
Denise Johnson, Lori Bailey, and Sandra Arnott.
The evidence showed that there were a number of employ-
ees who were actively opposed to the Union. Most signifi-
cant among these were Marian Oates who filed a decertifica-
tion petition on December 16, 1991, and Regina Martin who
seems to have made it her business to tattletale on the union
activists in an attempt to get them into trouble with manage-
ment.
In the fall of 1990, Donald Hartley was the terminal man-
ager and Nancy Hartley was the dispatcher. Jane Bailey was
the safety, training, and personnel (STP) supervisor and she
was assisted by Joyce Warrell who did most of the on-road
training. They in turn reported to Ted LeClerc who was in
charge of terminal operations for eastern Connecticut. When
Jane Bailey relinquished her position as STP supervisor in
early 1991, that position was taken over by Joyce Warrell.
In April 1991, Donald Hartley left and Bob Bickford as-
sumed the position of division manager which meant that he
was directly in charge of three terminals including those at
Stonington. He too reported to LeClerc.
When negotiations began in January 1991, the Company
was represented by Philip Wolfenden and Ted LeClerc. The
Union’s chief spokesman was Manual Sousa.
In August 1991, the Company dispatched to the Stoning-
ton facility its director of human resources, Ted Hutcheson.
It is alleged by the General Counsel, and denied by the Re-
spondent, that Hutcheson sought to undermine the Union and
the negotiations by soliciting grievances and by attempting to
deal directly with employees regarding their terms and condi-
tions of employment. It also was intimated by the General
Counsel’s witnesses, if not proven, that Hutcheson had some-
thing to do with the filing of the decertification petition
noted above.
C. The Negotiations
After the Union was certified on November 20, 1990, ne-
gotiations did not begin until January 24, 1991. At the first
meeting, Sousa requested a copy of the driver’s handbook,
the Company’s medical plan, and a list of the drivers with
their dates of hire and rates of pay. This information was
subsequently provided. The Union made a contract and wage
rate proposal. The parties, however, agreed to forego discus-
sion of monetary items until they could resolve all nonmone-
tary issues first. The Company objected to the participation
of Jane Bailey as part of the Union’s negotiating committee
contending that she was part of management.
Jane Bailey testified that she decided after consultation
with the Union to give up her job as STP supervisor so that
she could remain on the Union’s negotiation team. She also
testified that she talked to Ted LeClerc who assured her that
even if she went back to being a driver, she would still be
given opportunities to train others.
The second meeting took place on February 20, 1991. As
the parties discussed the possibility that the Company might
lose the North Stonington run if another Company underbid
it,2 Sousa stated that if that happened, layoffs within the unit
should be on a seniority basis so that North Stonington driv-
ers with higher seniority should be allowed to bump
Stonington drivers with lower seniority. At the end of the
meeting, the Company presented its contract proposals. This
proposal omitted, however, any economic items such as
wages, holidays, health insurance, or pension programs.
In the spring of 1991, all parties found out that the Com-
pany had not been successful in bidding for a new North
Stonington contract. At that time, Donald Hartley notified the
employees there that Eastern Bus Lines had been the suc-
cessful bidder and that it was offering jobs to all of the
North Stonington drivers.
On May 16, 1991, the fifth bargaining session was held.
Sousa stated that the Union viewed the seniority issue as
their highest priority and that they wanted the North
Stonington drivers with higher seniority to have the right to
bump Stonington drivers having less seniority. In effect, the
Union was proposing that seniority be based on time within
the bargaining unit as a whole.
On June 20, 1991, the Union continued to press for a sin-
gle seniority list for the entire group of employees. When the
Company would not agree, Sousa argued that the driver’s
handbook was consistent with his demand as it set forth se-
niority on a divisionwide basis and that North Stonington
and Stonington were one division. Alternatively, the Union
asked that the North Stonington drivers be put on a pref-
erential list for hiring at the Stonington facility. The Re-
spondent’s response was noncommittal.
In August 1991, the Union held a meeting with the em-
ployees at which there was discussion about the possibility
of a strike. It seems that Marian Oates, perhaps on this occa-
sion, asked Sousa if the employees could lose their jobs if
they engaged in a strike. Apparently, when Sousa said that
strikers could not be fired but could be permanently replaced,
this upset Oates who decided that the Union’s representative
was ‘‘beating around the bush’’ and not being forthright. She
testified that it was this response (which correctly describes
the law relating to economic strikers) that led her to begin
thinking about getting rid of the Union.
On August 16, 1991, the Union mailed a revised contract
proposal to the Company. The forwarding letter stated:
Enclosed please find the Union’s proposal con-
cerning the above negotiations.
In addition, please be advised that the Union will ac-
cept all non-monetary items listed in Laidlaw’s pro-
posal and is prepared to discuss all monetary items at
a meeting prior to September 1, 1991 if the parties can
arrange same.
In August 1991, at the annual drivers’ meeting, the Com-
pany introduced Ted Hutcheson to the drivers who were told
that he would update them about the negotiations. They also
were told that if they had any problems they could speak to
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 After winning an NLRB election, a union is entitled to an
irrebutable presumption that it represents a majority of the bar-
gaining unit employees for 1 year after being certified. That is, the
Hutcheson. When asked about raises, Hutcheson or Ted
LeClerc told the employees that there would be no raises that
year as this was part of the negotiations. Hutcheson told em-
ployees that the Company had been trying without success
to contact the Union over the summer regarding negotiations.
When employee Valerie Cline-Collins asked how they could
get rid of the Union, he told her that she should contact the
NLRB.
In late September 1991, Hutcheson returned to the facility
and told the employees that the Union and the Company
were trying to set up a negotiation session. After the meet-
ing, Marian Oates met with Hutcheson and told him that
Valerie Cline-Collins was serious about a group of people
that wanted to decertify the Union. Hutcheson testified that
he told her to contact the NLRB.
On or about October 4, 1991, Hutcheson in response to a
request from Sharon Fish (a union supporter) came to the fa-
cility to talk to a group of employees which included Jane
Bailey and Cindy Greene. It seems that much of the discus-
sion at this meeting reflected the concern of some drivers
that others were not following company safety rules about
putting their children in safety seats while driving the
schoolbuses. (The concern was that such infractions by some
drivers might jeopardize the right of the remainder to bring
their young children along when they drove the buses.) After
the meeting, Hutcheson told Bickford about the complaint
and the Company, on October 11, 1991, notified all drivers
of the existing policy requiring the use safety seats on the
buses.
At the bargaining session held on October 9, 1991, the
Union asked the Company to place the North Stonington
drivers on a preferential hiring list for the Stonington facility
and to hire them as jobs opened up. Wolfenden said that they
should submit new job applications.
On October 11, 1991, Hutcheson sent a memo to the em-
ployes of Stonington as follows:
In response to an invitation by you folks to partici-
pate in an employee discussion regarding the advance-
ment of employee/employer relations I will be at the
Stonington Terminal on Wednesday October 16, 1991
at 12:30 p.m. to discuss issues with employees. You
will be advised on the location prior to October 16,
1991. If we need more time to thoroughly talk out the
issues, I will be available later on that afternoon as well
to talk individually or collectively with you folks.
On October 16, 1991, Hutcheson met with employees at
the Stonington Community Center where, among other
things, he spoke to them about the Company’s policy regard-
ing the assignment of charters. Many employees wanted a ro-
tating system for the assignment of charters. When Jane Bai-
ley arrived, she told Hutcheson that he should not be dis-
cussing this issue with the employees as it was one of the
items being discussed in the contract negotiations.
On October 17, 1991, another bargaining session was held
and the Union repeated its demand that the Employer place
the North Stonington drivers on a preferential hiring list for
the Stonington facility.
On October 25, 1991, the Company sent a second contract
proposal to the Union. This contained no economic pro-
posals. Thus, notwithstanding the fact that the certification
year had less than 1 month to run, and the Union’s request
to bargain about economic issues, the Company’s proposal at
this time, insofar as wages, pension and health benefits, and
holidays was; ‘‘Monetary item to be discussed later.’’
On October 29, 1991, the Company sent a letter to the
Union indicating that it was changing its charter distribution
policy. This letter stated:
At a recent drivers meeting a lengthy discussion was
held pertaining to the present system for assigning driv-
ers to charters. The present policy distributes charters
based only on seniority. There is no provision in the
present policy to allow for rotation through the entire
driver list.
At this time we intend to change the policy per-
taining to charter assignments at the Stonington ter-
minal to a rotation system based on a seniority list.
This change is a result of the drivers meeting held on
October 16, 1991. This change in policy will be effec-
tive November 8, 1991 unless I hear from you before
that date.
At the same time, the Company posted a notice informing
the drivers of this change in policy. At a meeting in the ter-
minal on October 30, 1991, Jane Bailey asked Hutcheson
how the Company could make this change as it was part of
the negotiations. When Hutcheson replied that many of the
drivers wanted the change, Bailey asked: ‘‘You’re telling me
that if 31 drivers come in here this afternoon and tell you
they want a raise you’ll give it them?’’ Soon after this meet-
ing, Bickford rescinded the proposed change and it never
went into effect. (I suspect this was done pursuant to advice
of counsel.)
On November 11, 1991, Hutcheson sent the following
memorandum to employees:
That you again for the opportunity to discuss work
issues with you. I appreciate your candor and I look
forward as you do, returning the Stonington terminal to
a friendlier family atmosphere where employees and
management are co-operative and trusting of one an-
other.
Several employees have formally indicated to me di-
rectly that they no longer support union representation.
Many of these employes stated they knew of others
who wished to express withdrawal of support for the
union but indicated they didn’t want to formalize their
intentions because in their opinion they would be sub-
ject of intimidation or threats from the union.
Please be advised that the Company will not tolerate
threats, intimidation or coercion of any kind whatsoever
made against an employee of Laidlaw. Laidlaw can and
will to the utmost extent legally protect Laidlaw em-
ployees; in exercising their rights to choose for or
against union representation.
On November 19, 1991, another bargaining session was
held and it is noted that this was 1 day short of the 1-year
period following the Union’s certification.3 The Company
701LAIDLAW TRANSIT
company must bargain with the Union during the ‘‘Certification
Year’’ notwithstanding any claim by anyone that the union may
have lost its majority status. Ray Brooks v. NLRB 348 U.S. 96
(1954).
4 G.C. Exh. 50 which is the last seniority list for North Stonington
lists 13 drivers at that location. They were:
Name Hire Date
Floyd Azamarski 19–1–83
Joyce Curtis 19–12–83
Judy Knight 10–17–83
Donna Mayne 13–1–82
Kathy Coco 9–3–86
Sharon Lewis 5–8–87
Sandra White 11–18–88
Beth Arzamarski 9–13–89
Karen Coon 9–27–89
Barbara Dawley 1–5–90
Agnela Fitzpatrick 8–29–90
Patty Stott 8–29–90
Lorna Siwinski 1–31–91
It appears that the successful bidder, Eastern Bus Lines, offered
jobs to all of the drivers who worked at at North Stonington. Some,
however, such as Donna Mayne and Judy Knight, did not go to
work for Eastern.
proposed that as far as monetary issues were concerned,
there should be a 2-year freeze on everything. At this point,
Union Representative Sousa told the employee committee
that he thought they should accept the Company’s entire pro-
posal because any contract was better than none at all. Sousa
also told them that he doubted that the Company would
agree because he didn’t think that it was serious about ob-
taining a contract. The credited testimony of Sousa and his
assistant, Vinnie Masino, was that they thereupon entered the
room where the company negotiators were sitting and told
them that the Union would accept the Company’s offer in
toto. I believe their testimony that Wolfenden responded by
stating; ‘‘What proposal? There is no proposal.’’
Although a company (or union) may engage in hard bar-
gaining, Section 8(a)(5) still requires it to bargain in good
faith, which basically is defined as a willingness to enter into
a contract. NLRB v. Insurance Agents’ International Union,
361 U.S. 477 (1960). Even though it is permissible for a
company to use its relative strength vis-a-vis a union to press
for contract terms favorable to itself, it may not use its
strength to engage in futile or sham negotiations with no in-
tention of ever reaching an agreement. NLRB v. Herman Sau-
sage Co., 275 F.2d 229, 232, (5th Cir. 1960). The Board
stated in Abingdon Nursing Center, 197 NLRB 781, 787
(1972):
Good faith, or want of it, is concerned essentially
with a state of mind. . . . That determination must be
based upon reasonable inference drawn from the totality
of conduct evidencing the state of mind with which the
employer entered into and participated in the bargaining
process. . . . All aspects of the Respondent’s bar-
gaining and related conduct must be considered in
unity, not as separate fragments each to be assessed in
isolation.
As of November 19, 1991, the Company, despite being
aware that some employees were preparing an attempt to de-
certify the Union, still had an absolute obligation to bargain
in good faith with the Union because the certification year
had not yet expired. Ray Brooks v. NLRB, supra. This meant
that if the Company made an offer which was accepted by
the Union, it would be obliged to agree to that acceptance
and enter into a contract. In my opinion, the Company at
least as of November 19, 1991, had no intention of entering
into a contract even if meant agreeing to the Union’s com-
plete capitulation to the Company’s proposed terms. Instead,
it is my opinion, that the Company was intent on waiting for
the certification year to expire with the hope that the Union
would be decertified. I have credited the testimony of Sousa
and Masino as to their version of the events of that day and
I find that the Company in this respect violated Section
8(a)(1) and (5) of the Act. See Mead Corp., 256 NLRB 686
(1981), where the Board held that the company violated Sec-
tion 8(a)(5) when, during midterm negotiations, it withdrew
a contract proposal at a time when the company knew that
the union’s acceptance was imminent.
Additionally, I think that the facts described above, show
that in September and October 1991, while negotiations were
ongoing, Ted Hutcheson solicited employee grievances and
attempted to deal directly with employees regarding the sub-
ject of charter assignments which was a matter being dis-
cussed in collective bargaining. In this respect too, I con-
clude that the Company violated Section 8(a)(1) and (5) of
the Act. Uarco Inc., 216 NLRB 1 (1974); Genzer Tool &
Die Corp., 268 NLRB 330 (1983).
D. The Alleged Failure to Recall or Rehire North
Stonington Employees
The General Counsel alleges that the Company violated
the Act by failing to transfer, recall, or rehire the employees
who were laid off from North Stonington in June 1991 after
the Company was the unsuccessful bidder for that contract.4
As I understand it, the General Counsel posits two separate
theories. One that there was in fact unified seniority for the
two terminals and that by failing to transfer the North
Stonington drivers into the Stonington terminal, bumping if
necessary less senior drivers, the Company unilaterally
changed existing terms and conditions of employment and
thereby violated Section 8(a)(1) and (5) of the Act. The sec-
ond alternative theory is that the Company, for discrimina-
tory reasons, did not recall or rehire the North Stonington
drivers as jobs became available at the Stonington facility.
Under this theory, it is postulated that the Company was mo-
tivated by a desire to eliminate from its payroll those drivers
who had supported the Union during the preceding election
campaign and replace them by hiring new drivers who were
not involved in bringing in the Union.
In my opinion, the General Counsel’s first theory is not
supported by the evidence. It is true that the driver’s hand-
book states that seniority is to be on a divisionwide basis.
That provision in the handbook however was originally writ-
ten when the Company was owned by Beebee’s and was un-
derstood to mean that there were two separate seniority lists
for that Company’s two divisions which consisted of
Stonington and North Stonington. It is also true that at some
point after the Respondent purchased these operations it
merged the Stonington and North Stonington operations into
a single division for bookkeeping purposes. I however do not
think that the Respondent intended to alter the past practice
of treating the two locations as separate entities for seniority
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Donald Hartley testified that many of the North Stonington driv-
ers were ‘‘bummed out’’ about the idea of going to work for Eastern
which was the successful bidder. He testified that none of the drivers
said that they did not want to work for Laidlaw if jobs were offered
to them at other locations.
6 Henson had a weight problem which required the Company to
modify the driver’s seat of a bus in order for him to perform his
job. Otherwise, there is no indication that he could not do his job.
After being employed, he expressed his opposition to the Union.
purposes. In this respect, I believe that the Company ne-
glected to change the language in the driver’s handbook be-
cause it did not anticipate or realize that a claim would later
be made that it had merged the two facilities for seniority
purposes. Indeed, it is apparent that the Union’s negotiators
were of the opinion that there was separate seniority for each
location because they pressed the Company at the negotia-
tions to merge seniority. Such a demand obviously would not
have been made if it was understood by either party that
there was an existing practice of having a unified seniority
list for both locations.
Given my conclusion that the prevailing practice was that
each terminal had its own seniority, I cannot find that the
Company’s failure to transfer the North Stonington drivers to
the Stonington facility in order of overall seniority, con-
stituted a unilateral change.
On the other hand, I am persuaded of the validity of the
General Counsel’s second theory and I conclude that the
Company either refused to rehire or delayed the rehire of
North Stonington drivers for discriminatory reasons.
The main reason given by the Company for not offering
employment to some of the North Stonington drivers at the
Stonington facility is that they did not fill out job applica-
tions. As to others, such as Donna Mayne and Judy Knight,
who were offered employment later in 1992, the Respondent
contends that they filled out job applications after other peo-
ple and therefore were offered jobs in the order that applica-
tions were submitted.
It became apparent by late January 1991 that there was a
real possibility that the Company would not retain the North
Stonington runs because another company had put in a lower
bid with the school board. When the drivers were notified
that the Company had not been successful in its bid, the
Union, at the May 16, 1991 negotiation session, stated that
its highest priority was to have the North Stonington drivers
be able to transfer to the Stonington facility in order of over-
all seniority. The Union continued to press for overall senior-
ity at the June 20 negotiation session. And after the North
Stonington drivers were laid off and the negotiations re-
sumed in September 1991, the Union demanded that if the
Company would not agree to overall seniority it should at
least put the North Stonington drivers on a preferential hiring
list for the Stonington terminal. The point is that the Union
was making it plain to the Company before and after the
North Stonington drivers had been laid off that these drivers,
as a group, were interested in retaining their jobs with the
Company and desired to move to the Stonington facility if
possible.5
Preliminarily, it is noted that schoolbus drivers are re-
quired to have a commercial driving license sometimes re-
ferred to here as a CDL. For the school year 1991–1992, the
State of Connecticut required additional training. Newly
hired drivers without prior experience, and without a CDL,
had to be given extensive training which entails both class-
room and behind the wheel training. It is estimated that such
a new employee would require about 35 to 37 hours of train-
ing and would cost the Company anywhere from about $600
to $1000 per employee. On the other hand, a driver who had
worked at North Stonington during the 1990–1991 school
year would already have had a license. She nevertheless
would have been required to meet some newly mandated re-
quirements but this would entail much less training than re-
quired of a new employee.
It is noted that new persons are not actually hired by the
Company until after his/her training has been completed and
after they have obtained the necessary license. Donald Hart-
ley testified to the obvious; namely, that the Company pre-
ferred to hire a former employee who had quit than someone
from off the street. By the same token, it seems obvious to
me that it would be preferable to rehire a previously laid-off
driver who had been a satisfactory employee than any new
person who had neither a license nor driving experience.
Judy Knight testified that in August 1991 she called the
Company and spoke to Joyce Warrell about being employed.
She states that Warrell told her that she (Knight) would have
to come down and fill out a new application. When Knight
said that she had worked for the Company for 8 years and
didn’t feel it was necessary to fill out a new application,
Warrell told her it didn’t make any difference. Knight did
not fill out a new application at that time.
Donna Mayne, a union shop steward and member of the
Union’s negotiating committee, testified that on August 28,
1991, she visited the Company’s office and filled out a job
application, not having heard from the Company before that
time. She states that she spoke to Joyce Warrell and was told
that the Company had three new runs. Mayne testified that
Warrell told her that the Company had a new driver in train-
ing; that it had rehired a former employee named Arthur
Henson (who was not employed in the previous school year),
and that the only North Stonington driver who had filled out
an application was Sandy White. (White filled out an appli-
cation on August 26, 1991.) According to Donna Mayne,
Warrell told her that she would be considered for the next
job opening after Sandy White.
The evidence shows that the Company did not notify any
of the North Stonington drivers who had been laid off, of job
openings. Instead, in August 1991, it hired Arthur Henson,
who as noted above, had previously been employed by the
Company some years before and it also rehired Sandy White.
(White, who had been employed at North Stonington during
the 1990–1991 school year, did not participate in the strike
that had taken place during the previous September).6 Also
in August 1991, Joyce Warrell began to train a new person,
Ruth Eastty, who had walked in ‘‘off the street,’’ and who
neither had a CDL nor any prior experience. Indeed, the
Company continued to train and retain Eastty after she failed
the licensing test and despite the fact that Donna Mayne, an
experienced North Stonington driver, was actively applying
for a job.
Prior to the start of the 1991–1992 season, drivers Patrick
Matson, Debbie McIntire, Laurie Barber, and Holly Perez ei-
ther quit or failed to show up. Before the school year began,
Arthur Henson and Sandra White were hired and Ruth
Eastty, although not hired, was put into training. (Eastty was
703LAIDLAW TRANSIT
7 In May 1992, the Company by Edward LeClerc sent letters to
some of the laid-off North Stonington drivers advising them that the
Company was prepared to offer them reinstatement or the oppor-
tunity to train for the CDL. I am not certain from this record as to
whether such letters were sent to all or just a few of the North
Stonington drivers who were laid off in June 1991.
8 Although there was no formal pregnancy leave policy, the evi-
dence does indicate that there was a de facto practice of rehiring em-
ployees when they were ready to return after giving birth.
eventually hired when she got her license and she was given
a regular run.)
Soon after the school year started there was further attri-
tion. Marilyn McKenna quit in early September, Doreen
Aymelek was fired on September 13, 1991, and Donna Vic-
toria went out on workmen’s compensation on or about Oc-
tober 4, 1991, and never returned. Additionally, in early Oc-
tober 1991, Regina Martin went out for a time on disability,
and in January 1992 Jody Root was fired.
Nancy Hartley testified that Donna Mayne asked about a
job in September 1991 after Marilyn McKenna quit and
again after Doreen Aymelek was fired. Hartley states that she
told Mayne on each occasion that the Company was not hir-
ing. In fact, the Company did not offer a job to Donna
Mayne until January 1992, after Jody Root was fired at
which time it also offered a job to another new person
named Diane Joseph. Further, the evidence shows that the
Company, after January 1992, hired other new unlicensed
drivers such as Paul Desy and Susan Cozzolino before mak-
ing employment offers to any of the other North Stonington
drivers such as Judy Knight who had explicitly expressed an
interest in working as early as August 1991 and who filled
out a job application on January 21, 1992. (Knight was sub-
sequently offered a job at the Stonington facility in March
1992 but turned it down because at that time she was taking
care of her grandchild.)7
There also was credible evidence that instead of making
job offers to North Stonington drivers, at least to the extent
that drivers were needed to cover all runs, the Respondent
utilized other personnel such as mechanics, supervisors, and
employees from other terminals with more frequency than in
the past.
Pursuant to Wright Line, 251 NLRB 1083 (1980), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), once the General Counsel makes out a
prima facie showing sufficient to support an inference that
protected or union activity was a motivating factor in the de-
cision to discharge, refuse to hire, or take other adverse ac-
tion against an employee, the burden shifts to the respondent
to demonstrate that it would have taken the same action in
the absence of the protected activity.
In the present case, I think that the evidence supports a
contention that the General Counsel has made a prima facie
showing that a motivating reason for not offering jobs to at
least some of the North Stonington drivers was because they,
like most of the other drivers, voted for the Union in the
election and, with the exception of Sandy White, engaged in
the work stoppage that occurred during the preceding year.
Respondent’s argument that it did not offer jobs to these
people because they either did not file applications or filed
applications too late is not persuasive.
The purpose of a job application is twofold; first to ascer-
tain whether an individual wants to work for a company and
second to give information so that an employer may judge
the applicant’s qualifications. In the present case, the Em-
ployer was well aware that the employees at North
Stonington including Donna Mayne and Judy Knight were
interested in working for Laidlaw because the Union as their
representative had made this crystal clear at the negotiations.
Second, as the North Stonington drivers had recently worked
for the Company, the Respondent was fully aware of their
qualifications and in fact it made no suggestion or contention
that any of these drivers were not qualified for these jobs.
Moreover, as shown above, all of the North Stonington driv-
ers were more qualified than the people (with perhaps the ex-
ception of Arthur Henson), who were trained and hired in
September 1991 and January 1992. That is, the new employ-
ees such as Eastty, Joseph, Desy, and Cozzolino, all of
whom were offered jobs ahead of North Stonington drivers,
had neither driven schoolbuses before nor had the requisite
licenses to do so. These new drivers all required extensive
and expensive training which would have been saved had the
Company offered the jobs to the North Stonington drivers
who had been laid off in June 1991.
E. Lori Bailey
As noted above, Lori Bailey was one of the drivers who
initiated the original strike. She also is the daughter of Jane
Bailey, the leading union activist. After the strike, and before
the election, Lori Bailey left the Company in October 1990
because of her pregnancy. There is a difference of opinion
as to whether she indicated to Donald Hartley that she would
return after her pregnancy and the Company asserts that she
merely indicated that she was quitting. Most likely, she told
Donald Hartley that she was leaving because of her preg-
nancy and that she and Hartley later honestly disagreed as
to whether she was given ‘‘pregnancy leave.’’8 In either
event, I don’t think that this makes any difference to the out-
come of this case.
Lori Bailey testified that on January 9, 1992, she went to
the office and told Nancy Hartley that she was ready to re-
turn to work. On January 16, 1992, she returned to the ter-
minal and was told by Nancy Hartley that she would have
to fill out a new application. When Bailey asked why, Hart-
ley said that it was to update the files. Bailey asked if they
needed drivers and Hartley said that they would like to hire
six drivers and were putting advertisements in the local
newspapers. According to Lori Bailey, Joyce Warrell asked
her where she stood with the new CDL requirements and she
(Bailey) said that all she needed was a late proficiency test
which required only a couple of hours on the road. Bailey
was told by Warrell that she would talk to Bickford and get
back to her.
On January 22, 1992, Lori Bailey called the office and
was told by Nancy Hartley that Bob Bickford would call her.
Bailey testified that on January 23, Bickford called her and
said that he wanted to wait until the ad ran out on the fol-
lowing Monday. She states that she asked if she was being
treated like a new applicant and was told that she was.
According to Bailey, she called on January 28, 1992, and
was told by Joyce Warrell that Bob Bickford was not in. She
called again several times on January 29 and was unable to
reach Bickford. According to Bailey she finally reached
Bickford on January 30 and he told her that he hadn’t yet
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gone over the applications and that he was not sure he was
going to.
Bailey testified that about a week later (early February
1992) she spoke with Bickford who admitted that the Com-
pany had started training a couple of people who had been
obtained from the advertisements that had been run earlier.
(This must refer to Diane Joseph, Paul Desy, and Sue
Cozzolino, all of whom were untrained and unlicensed peo-
ple.)
In the meantime, Marian Oates, who filed the decertifica-
tion petition, told Bob Bickford that she would quit if Lori
Bailey was rehired. This according to Bickford, occurred in
January or February 1992. In this regard, Lori Bailey testi-
fied that when she spoke with Bickford in February, she
asked if she was not being taken back because of the Union
and because of Marion Oates. Bailey states that when Bick-
ford initially denied these accusations, she said that another
driver had overheard Oates telling Bickford that she (Oates)
was ‘‘busting her ass to get the Union out and you’re hiring
union people, especially Lori Bailey.’’ She testified that
Bickford replied that this person had big ears and she re-
sponded; ‘‘Yes big enough to overhear this conversation.’’
On May 29, 1992, LeClerc sent a letter to Lori Bailey as
follows:
I understand you may be interested in rejoining
Laidlaw . . . at our Stonington facility. If so, please be
advised we are prepared to offer you reinstatement, or
the opportunity to train from your CDL if you do not
currently possess this required license.
Assuming you remain interested, kindly complete the
enclosed Application and return it to me . . . . You
will then be considered for the first available opening,
or I will arrange for you to participate in our next CDL
training program.
On May 30, 1992, Lori Bailey wrote to LeClerc as fol-
lows:
The Stonington Facility has a record of an updated
application dated on January 9, 1989 when I first came
to them to return to work after my pregnancy. I do
carry a RI (Rhode Island) CDL license along with a CT
(Connecticut) Public Service License Class A which
needs to be upgraded to Class C with a ‘‘late pro-
ficiency.’’ This would need to be done by June 30,
1992. I know next week is the 1st of June and the close
of school is soon to follow. I would like to return to
work as soon as possible and would be able to work
for the summer . . . .
After some problems arranging for her test, Lori Bailey
got her proficiency and license in early June 1992. On July
9, 1992, she finally was offered work which was a charter
run for 5 weeks during the summer.
Bob Bickford and Nancy Hartley contended that they ini-
tially decided not to rehire Lori Bailey because when she
worked during 1990, she had a problem controlling her child
on the bus. This was denied by Bailey and in any event
seems like a specious argument considering that there was
absolutely no evidence that she had any problems in doing
her job at that time. As noted above, Lori Bailey was finally
offered a job in July 1992 and this resulted from LeClerc’s
decision, after an unfair labor practice charge was filed, to
overrule Bickford.
Like the North Stonington drivers who were discriminated
against, Lori Bailey was more qualified than any of the new
people who replied to the help wanted ads that the Company
had placed in January 1992. She needed only a limited
amount of training in order to update her license as opposed
to the 35 to 37 hours required for each of the new people
before they could begin to work. In my opinion, the Com-
pany refused to rehire Lori Bailey until after the school year
ended, because it wished to curry favor with Marion Oates
who was trying to get rid of the Union and because both
Oates and the Company did not want Jane Bailey’s daughter
to come back and lend her support for the Union.
F. Doreen Aymelek
The General Counsel makes two allegations regarding
Aymelek: (1) That she was discriminated in the summer of
1991 when a summer run to which she was entitled to by
seniority was taken away from her and given to Regina Mar-
tin. (2) That Aymelek was discriminatorily discharged on
October 13, 1991, soon after the start of the new school year.
The Respondent denies that it took either action because of
union considerations and asserts that in both cases, it acted
because Aymelek was not doing her job right.
Doreen Aymelek began as a driver working for Beebee’s
in 1986. She worked at the Stonington terminal and until
September 9, 1991, had nothing in her personnel file indi-
cating that she had any problems with her work. She was not
one of the three main union activists, but according to her
own testimony and the testimony of Jane Bailey, she was
among a group of employees who were outspoken in favor
of the Union. I note parenthetically that although Aymelek’s
demeanor as a witness tended to give the impression of a shy
and vulnerable person, my opinion, from the entire record,
was that she was capable of and more than willing to uphold
her end of an argument.
This brings us to Regina Martin who began working at the
Stonington terminal as a driver on October 3, 1990. (She,
along with Karen Simmons, were, in the 1991–1992 season,
the drivers with the least seniority at Stonington.) The evi-
dence indicates that she was one of the few drivers who op-
posed the Union during the initial election campaign. (She
put a ‘‘vote no’’ button on her child who rode on the bus
with her.) In the autumn of 1990, Martin complained that the
Union had vandalized her car and she was transferred, at her
own request, to the North Stonington location where she was
given a regular run. (The Company asserts that although
given a regular run at North Stonington, Martin remained on
the Stonington seniority list as a spare driver.)
At the end of each school year, many of the drivers opt
to be laid off for the summer and they collect unemployment
insurance benefits. A minority of the others bid for summer
runs that the Company obtains. The summer runs are given
out in order of seniority to those employees who make bids.
At the end of the 1990–1991 school year, Aymelek was
the most senior driver who bid for a summer charter run
which involved transporting Navy personnel between Electric
Boat at Groton Connecticut and Quannsett Point in Rhode Is-
land. This run was to be done on Mondays to Fridays and
involved a run from Groton in the morning and a return trip
from Quannsett Point in the afternoon. Initially, Regina Mar-
705LAIDLAW TRANSIT
9 For this reason, I am inclined not to credit Warrell’s assertion
that she observed Aymelek weaving all over the road. I am also not
inclined to credit her assertion that Aymelek expressed antiunion
opinions to her.
tin started to do this run and after Aymelek complained that
she was more senior than Martin, she was given the after-
noon run.
At some point in the summer, Regina Martin began report-
ing to Nancy Hartley that the Navy personnel were com-
plaining to her that Aymelek was driving all over the road;
that on one occasion she went the wrong way on Interstate
95; that she was flirting with the men; and that on at least
one occasion she had taken a sailor home with her. Martin
told Hartley that the Navy men wanted Aymelek removed
from the run. Hartley testified that she told Martin that in
order for the Company to do anything, it would have to re-
ceive a formal complaint from the Navy. Hartley testified
that she then received a phone call from a Lt. Ferigno who
registered complaints about Aymelek’s driving. She testified
that based on this complaint, she removed Aymelek from the
run in early July 1991. Needless to say, Regina Martin
picked up most of that work.
Simultaneously with the above, Aymelek began receiving
calls from Regina Martin’s husband who accused her of
spreading rumors about his wife’s sexual conduct. (Martin
did not testify in this case.)
After being removed from the Navy run, Doreen Aymelek
called up various officials of the Navy and was told, in sub-
stance, that Lt. Ferigno neither had the authority nor was it
in accordance with standard procedure for him to ask
Laidlaw to replace a driver on a bus run.
No Navy people were called by either side to support or
contradict the contentions made that Aymelek was allegedly
engaged in misconduct and dangerous driving. I also note
that despite the allegations made against her, Aymelek was
not given any warnings about the alleged incidents. (One
would imagine that a warning would be in order if a driver
was found to be driving down the wrong side of an interstate
highway.) Indeed this entire transaction strikes me as being
very odd.
There is no question but that the removal of Doreen
Aymelek was precipitated by the tales (perhaps tall tales) that
Regina Martin told about her to Nancy Hartley. The issue
here is whether the Company was motivated by union con-
siderations or whether it became embroiled in a personal dis-
pute between these two women who were tossing around
sexual innuendos about each other.
While the situation regarding the summer run seems to me
to be ambiguous, I think on balance that the Company was
motivated in part, by union considerations. That is, I think
that the evidence suggests that Nancy Hartley acted on Mar-
tin’s reports either because Aymelek was one of the employ-
ees who openly supported the Union or because she wished
to reward Martin who was an outspoken opponent of the
Union. In either case, as I am inclined to believe that union
considerations played a role in the decision to remove
Aymelek from the summer Navy run, and as I am not per-
suaded by the Respondent’s evidence purporting to show that
it was motivated by legitimate business reasons, I conclude
that the Respondent violated Section 8(a)(1) and (3) in this
regard.
The circumstances leading up to the discharge of Doreen
Aymelek are to my mind somewhat confusing. As best as I
can make out, the events were as follows.
In the 1990–1991 school year, Aymelek drove a route
which involved picking up and dropping off children in and
around Quacachaug Hill in Old Mystic. In the past, drivers
were instructed not to use that hill, as its steep grade made
it dangerous, particularly when a bus stopped to pick up or
let off children. At the drivers’ meeting however held in Au-
gust 1991, the drivers were told by Nancy Hartley that the
school board had given permission to use Quacachaug Hill.
Aymelek’s run, at the beginning of the school year, in-
cluded picking up the two Selinger children who lived on
Quacachaug Hill. This required Aymelek to stop the bus on
the hill.
Early in the school year, the Company took a kindergarten
run away from Aymelek. In this regard, Joyce Warrell testi-
fied that she received a report from Regina Martin’s husband
to the effect that he had seen Aymelek weaving all over the
road and that he didn’t want his son on her bus. (Somehow
I am not surprised that the person who reported this type of
driving by Aymelek was Regina Martin’s husband.) Warrell
states that she went out to observe Aymelek and confirmed
that she did weave on the road because she drank coffee with
one hand and drove with the other. Nevertheless, no warning
was issued to Aymelek regarding what I would consider to
be dangerous driving if true.9
When Aymelek, at the start of the school year, began
doing her run, she complained to Nancy Hartley that the
change in her run (from the previous year) was slowing her
down and making her late. When she suggested that some
children on her bus be reassigned to other buses, Hartley re-
fused. Aymelek states that she also suggested that the
Selinger children be picked up by van as in previous years.
In contrast, Hartley did remove some of the children from
Valerie Cline-Collins run when she complained. (As noted
above, Valerie Cline-Collins had expressed antiunion senti-
ments.)
On September 6, 1991, Aymelek had an incident with a
child named Ashley wherein she scolded Ashley for not fol-
lowing safety procedures while getting off the bus. Also on
September 6, a woman who was a neighbor of Ashley’s
mother, reported to the Company that Aymelek was going 50
m.p.h. in a 30-m.p.h. zone.
On the morning of September 9, 1991, Ashley’s mother,
Julia Ray, vehemently upbraided Aymelek for yelling at her
child and Aymelek radioed Nancy Hartley that she should
expect a call from an irate mother. It also appears that on
that day, Ashley’s mother made a complaint to the Company
which alleged that Aymelek was constantly yelling at her
child and that she went 35 m.p.h. in a 15-m.p.h. zone.
According to Aymelek, on the afternoon of September 9,
1991, she was told by Hartley that some people had reported
that she had been speeding. She states that she denied this.
Nevertheless, on that date, Aymelek received a warning
about the alleged speeding which she refused to sign. Ac-
cording to Aymelek, on September 10, 1991, she was told
by Hartley that the the speeding incidents had been inves-
tigated and that ‘‘everything was fine.’’
Also on September 9, 1991, Aymelek testified that she re-
ceived instructions from Hartley to leave the Selinger chil-
dren off at the top of the hill and not by their house. She
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
states that she told Hartley that this too was not safe. In any
event, Aymelek’s run was revised so that she did not have
to go up or down Quacachaug Hill.
With respect to Quacachaug Hill, Nancy Hartley testified
that on the second day of school, she received a phone call
from Joan Dufton of the school board who told her that the
hill should no longer be used because the parents were com-
plaining. Hartley states that she told the drivers involved
(such as Aymelek, Henson, Arnat, and Simmons) that they
no longer should use the hill. Respondent’s Exhibit 11,
which Hartley described as a description of the revised run,
is dated September 11, 1991. Although it may make no dif-
ference, she claims that she gave Aymelek an earlier draft
of this document at some point before September 11. In any
event, it seems that by September 11, Aymelek had been no-
tified not to use Quacachaug Hill.
On September 10 and 11, 1991, the Selinger children did
not use Aymelek’s bus. Also on or about September 11, a
few of the mothers gave letters to Aymelek which are in the
nature of testimonials. Aymelek testified that this came about
when Nancy Hackett, the director of a child care center, told
her that she had heard that Aymelek was having problems
with Ashley’s mother and that she (Hackett) would solicit
character references for Aymelek from other mothers).
On September 12, 1991, Aymelek met, pursuant to her re-
quest, with Bob Bickford in what appears to have been an
effort by her to clear the air. According to Aymelek, she re-
lated her problems with the Navy run, the speeding charges,
etc. She states that she discussed the personality of everyone
at the terminal and that she said that there was a lot of hate
and tension because of unfair treatment which she claimed
was the reason for the employees going to the Union.
Aymelek testified that she told Bickford that Regina Martin
was spreading false rumors about her and that she showed
him the letters from the parents that she had just received.
According to Aymelek, Bickford did not say much although
he did indicate, at one point, that he was worried about her
driving. She states that when she asked him to clarify, he re-
fused. She also states that he mentioned that he had seen her
downtown on Granite Street and that she told him that she
was there to go to a union meeting. According to Aymelek,
Bickford told her at the conclusion of the meeting that he felt
that she was a safe and conscientious driver and that she
didn’t have anything to worry about.
Bickford testified that at this meeting, Aymelek mentioned
various of her problems and showed him a group of letters.
He states that he reprimanded Aymelek for soliciting such
letters and that she denied soliciting them. In this regard,
Bickford testified that prior to this meeting, he had received
a phone call from Joan Dufton who stated that she wanted
him to get rid of Aymelek. He states that Dufton told him
that Aymelek was speeding, that she had almost hit a child,
and that she was most angered by the soliciting of letters by
Aymelek. (Frankly I have difficulty with this ordering of pri-
orities.) Joan Dufton was not called as a witness.
According to Aymelek, on the afternoon of Friday, Sep-
tember 13, the Selinger children got onto her bus to go home
from school. She testified that when she asked them why
they were on her bus, they said that they were told to go on
bus 15 and that they got upset. According to Aymelek, she
radioed to base and spoke to Hartley who told her to take
them home. She states that she asked Hartley which way she
should take them and that Hartley responded by saying to
take them home the ‘‘old way.’’ Aymelek testified that she
took this to mean that she should use Quacachaug Hill as
this was the route at the start of the school year. She states
that when she dropped them off, a woman approached her
and said that she was breaking the law by having the bus
on the hill. Aymelek testified that she told this woman
(whose name she didn’t know, but appears to be a Jo Ann
Morris), that she was just following orders and that she
should call the office. At the same time, Aymelek radioed to
Nancy Hartley to tell her to expect a phone call from this
woman about using the hill.
According to Aymelek, when she got back to the terminal,
Nancy Hartley exploded and told her that she was fired.
Aymelek testified that when she asked why, Hartley said be-
cause she was told not to use the hill. Aymelek asserts that
she responded that it was Hartley who dispatched her to the
hill. According to Aymelek, Hartley told her that she was
fired for insubordination.
According to Nancy Hartley, on September 13, she got a
call from a lady who reported that the bus was on the hill.
(This probably was Joan Dufton because Morris apparently
reported the incident to the school board on that day.) Hart-
ley testified that when she then reported this to Bob Bick-
ford, he said that he was upset that Doreen Aymelek was so-
liciting letters. According to Hartley, she told Aymelek that
she was fired because she failed to follow direct orders. She
testified that the key thing was driving on the hill, but that
the other incidents were part of the decision.
Joyce Warrell, who was present at the terminal on Sep-
tember 13, testified that the thing that precipitated Aymelek’s
discharge was a phone call received that day from Joan
Dufton regarding Aymelek’s use of the hill.
Bob Bickford testified that he made the decision to dis-
charge Aymelek after Nancy Hartley called him up and told
him that Doreen Aymelek had used the hill. He states that
he made this decision and instructed Hartley to fire Aymelek
after having earlier received a phone call from Joan Dufton
asking him to get rid of Aymelek (mainly because she had
solicited parent letters).
While everyone seems to agree that the incident on the hill
precipitated Aymelek’s discharge, the question remains as to
whether it was the real reason for her discharge. On one
hand, we have the Company asserting that Aymelek used the
hill despite being directed not to. On the other hand,
Aymelek testified that she reasonably concluded that she was
to use the hill when she asked Hartley on September 13 how
she was to take the Selinger children home and was told to
go ‘‘the old way.’’ Additionally, the Company insists that
Joan Dufton, as a representative of the school board, specifi-
cally requested that Doreen Aymelek be fired; this request
being made either on September 13 or a few days earlier.
Bickford called up Joan Dufton after Aymelek had been
discharged and requested that Dufton send him a letter con-
firming that she had asked for the discharge of Doreen
Aymelek. Dufton’s letter, dated September 18, 1991, states:
This letter is to express concern over the complaints
I have received from parents about your driver, Doreen
Aymelek.
707LAIDLAW TRANSIT
10 The cases cited by the General Counsel were Gentzler Tool &
Die Corp., 268 NLRB 376 (1983); European Parts Exchange, 270
NLRB 1244 (1984), and Pak-Mor Mfg. Co. 241 NLRB 801 (1979).
See also Circuit-Wise, Inc., 306 NLRB 766 (1992), where I found
that a company violated Sec. 8(a)(5) by unilaterally increasing that
portion of the contributions which the employees paid for a self-in-
sured medical plan to which the company contributed a major por-
tion of the costs of the benefits provided.
During the first week of school, there were numerous
telephone calls and incident reports filed on Ms.
Aymelek with the school department.
Among these complaints were: excessive speed, abu-
sive to children, abusive to parents, chronically late, er-
ratic time at bus stops, [and] requested students to ask
parents to write letters on her behalf.
I would appreciate notification about how you are
handling this situation.
While listing a variety of complaints, Joan Dufton’s letter
did not state that she had asked for the discharge of
Aymelek. Also noteworthy is that it did not make any men-
tion of the incident on Quacachaug Hill which precipitated
Aymelek’s discharge.
Notwithstanding a bit of contrary testimony by Joyce
Warrell, I conclude that Doreen Aymelek, although not one
of the Union’s key supporters, had openly expressed her
opinion favorable to the Union. There also is ample evidence
to show that she was involved in an intense and personnel
dispute with Regina Martin who happened to be one of the
key people opposed to the Union. As indicated above, a vio-
lation of Section 8(a)(3) would, in my opinion, be made out
if the Company’s discharge of Aymelek was either because
of her support for the Union or alternatively if it was moti-
vated by a desire to accommodate Martin because of the
latter’s support for the Union’s opposition.
There is no doubt that the 1991–1992 school year started
off badly for Doreen Aymelek and got worse. Whether or
not she was at fault, it is undisputed that she incurred the
anger of at least one mother who brought her complaints to
the school board and the Company. There is also no dispute
that she was on Quacachaug Hill on September 13, albeit I
am inclined to believe that this was the result of a misunder-
standing on her part and not because of any deliberate insub-
ordination.
There also is no dispute that prior to September 9, 1991,
Aymelek had never received any warnings or any other dis-
ciplinary actions. (The Company’s drivers’ manual sets forth
a progressive disciplinary procedure.) Moreover there was
documentary evidence relating to an employee named Jody
Root, showing that the Company, in the past, had issued a
great many warnings and suspensions before resorting to dis-
charge.
Finally there is, in my opinion, a discordance between
Warrell, Hartley, and Bickford regarding the reason that
Aymelek was discharged. By the testimony of Warrell and
Hartley it was Aymelek’s driving on the hill that was the
cause of her discharge. According to the testimony of Bick-
ford, the reason was that Joan Dufton asked for Aymelek’s
discharge mainly because she had solicited letters; the inci-
dent on the hill merely being the trigger that prompted him
to tell Hartley to fire Aymelek.
In my opinion, the question here is extremely close. Ap-
plying the principles of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), however, I conclude that the Company’s
discharge of Doreen Aymelek violated Section 8(a)(1) and
(3) of the Act.
G. Medical Insurance
The Company offered a medical plan to its employees
which, however, was noncontributory. That is, the employees
bear the entire cost of the premiums and the Company, apart
from arranging for a group rate, make no monetary contribu-
tion to the plan. It was stipulated that in September 1991 the
monthly medical insurance premiums for the bargaining unit
employees was increased. The increases were from $135 to
$150 for single coverage; $200 to $230 for employees with
one dependent; $215 to $280 for an employee with a spouse;
and $320 to $390 for family coverage. There is no dispute
that the Company did not notify the Union ahead of time be-
fore instituting these changes.
An employer having a collective-bargaining relationship
with a union must first notify and offer to bargain with that
union before making any unilateral changes in the terms and
conditions of employment. Gulf States Mfg. v. NLRB, 704
F.2d 1390 (5th Cir. 1983). That rule applies to changes in
medical insurance benefits. Intermountain Rural Electric
Assn., 305 NLRB 783 (1991).
Nevertheless, the question here is whether the action of the
Company in increasing the medical insurance costs con-
stituted a unilateral change.
The evidence shows that the Company’s past practice has
been to pass the full amount of any increased medical insur-
ance costs along to its employees because the Company does
not make any contributions of its own. Therefore, the an-
nouncement in September 1991 that the premiums were
being increased did not, in my opinion, reflect any change
in employee benefits and this case is unlike the facts of
Intermountain Rural Electric Assn., supra, and the other
cases cited by the General Counsel.10 In those cases, the re-
spective companies paid all or part of the health insurance
premiums and therefore the medical benefits were part of the
direct compensation paid to their employees. As such, when
those companies either changed insurance carriers and/or re-
quired the employees to shoulder a greater portion of the
plans’ respective costs, there clearly was a change in their
employees’ overall compensation packages which required
negotiations before being unilaterally changed.
This is not really the case in the present situation because
the particular medical plan offered by Laidlaw never had any
portion paid for by the Employer which merely facilitated the
ability of the employees to buy for themselves medical insur-
ance at a group rate. In the past, when costs for coverage
went up, the employees paid the entire bill. In September
1991 when the costs went up, there was no change; the em-
ployees again paid the entire bill.
It also is alleged that the Respondent in September 1991
violated the Act by refusing to allow Cathy Toth to enroll
in the Company’s medical plan.
Cathy Toth testified that in August 1991 she spoke with
Nancy Hartley about going into the Company’s medical plan
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The parties agreed that no new plan was offered to employees
during 1991.
12 According to LeClerc, the wages of the drivers in New Haven
were governed by a labor contract and therefore the wage increase
recommendation was not applicable to them.
because her husband was laid off from his job through which
the family had its medical insurance coverage. She asserts
that when she asked about the plan, Nancy Hartley told her
that the Company was going to get a new and cheaper plan.
According to Toth she told Hartley that she needed the infor-
mation soon because she understood that the open period for
entering the plan closed at the end of September. Toth states
that during September 1991 she asked Hartley and Joyce
Warrell on several occasions about getting the forms to fill
out but that they ignored her. She testified that at the end
of September 1991, she told Joyce Warrell that there were
only a few more days to sign up for the insurance and that
she needed the forms to do so. According to Toth, Joyce
Warrell’s daughter (who was a driver) turned around and
said, ‘‘You’re going out on strike, why should they give you
anything.’’
According to Joyce Warrell, Cathy Toth asked about insur-
ance soon after the school year began, explaining that her
husband had lost his job. She states that she thereupon
showed Toth the existing Laidlaw plan described above.
Warrell asserts that Toth said that she was not interested in
the existing plan because the rates were too high and she
heard that there were increases every year. Warrell states that
Toth later asked if there was not some other plan that she
could join and that she (Warrell) said that she would get
back to her. According to Warrell, she told Toth that the
only plan available was the existing plan11 albeit the Com-
pany was working on an alternative plan which was not
going to be ready for the foreseeable future. Warrell testified
that later in September 1991, she asked Toth if she wanted
to enroll in the Laidlaw plan and Toth refused, stating that
her husband had gotten new insurance through a new job that
he had obtained. (This was not rebutted by Cathy Toth.)
Warrell also denied that her daughter ever made the remarks
attributed to her by Toth. Kim Warrell was not called as a
witness.
I am not persuaded that the evidence is sufficient to prove
these allegations made by Cathy Toth. The testimony of Toth
and Warrell was directly contradictory and each was without
independent corroboration. I however was influenced by the
testimony of Warrell, unrebutted by Toth, that Toth, after
making inquiries about the Company’s plan and the possi-
bility of a new plan, ultimately rejected the Company’s exist-
ing medical plan because her husband had gotten a new job
which carried family health insurance with it.
H. Denial of Wage Increase
The evidence establishes that at the August 1991 drivers’
meeting, the Stonington employees were told that there
would be no wage increase that year. The General Counsel’s
witnesses credibly testified that Ted Hutcheson said at the
meeting that the reason there was to be no wage increase
was because wages were part of the negotiations between the
Company and the Union.
There had been annual wages increases given to the
Stonington and North Stonington employees, in varying
amounts, at the beginning of each school year that Laidlaw
operated these facilities from 1986 through 1990. Also, the
evidence shows that in September 1991, wage increases were
granted to the employees of the other terminals operated by
Laidlaw in the central Connecticut district to the extent that
their wages were not governed by collective-bargaining
agreements. Finally, the evidence establishes that the Union
was not notified, at any time prior to the announcement, that
the Company intended not to give wage increases to the bar-
gaining unit employees.
With respect to the 1991–1992 season, Edward LeClerc
testified that in March 1991, he recommended to Vice Presi-
dent Bob Pudewski, that a 4-percent across-the-board pay in-
crease be granted to all employees in the various eastern
Connecticut terminals under his supervision including the ter-
minal at Stonington.12 He testified that he made this rec-
ommendation to Pudewski despite the fact that he knew that
the Company was likely to lose the North Stonington con-
tract which he described as marginally profitable and which
he asserts had an impact on that division’s earnings. He,
however, could not say with certainty whether the North
Stonington operation was making or losing money under its
existing contract. If it was losing money as testified to by
Jane Bailey, one would expect that the termination of that
operation would help the division’s financial situation in the
aggregate.
According to LeClerc, his recommended pay increase for
the Stonington employees was rejected by Pudewski because
the revenues of that particular division, in contrast to the
other divisions in the district (such as Madison) were deterio-
rating. He testified that he was told to revise the budget and
he did so by recommending that wages be frozen at the
Stonington (and only the Stonington) terminal. Pudewski did
not testify in this case, and no other evidence was presented
to support the assertion that the Stonington operation was fi-
nancially at risk or that it differed in any particular respect
from the other Connecticut terminals where annual raises
were given.
In my opinion, the evidence establishes that the Respond-
ent, since it took over the Stonington/North Stonington oper-
ation from Beebee’s had established and maintained a prac-
tice of giving annual wage increases to its employees. This
is not to say that there was an established practice to grant
any particular amounts; that determination being made on a
year-to-year basis depending on various circumstances.
Having established a prior practice of granting annual
wages increases, it seems to me that the Company was not
free to unilaterally change its practice without first notifying
the Union and giving it an opportunity to bargain about the
withholding of the 1991–1992 wage increase. Not having
done so, for whatever reason, constitutes a violation of Sec-
tion 8(a)(1) and (5) of the Act. Louisiana-Pacific Corp., 299
NLRB 16 fn. 3 (1990).
Moreover, I am of the opinion that the real reason that the
Company withheld this increase was not because of financial
considerations but rather because it was engaged in negotia-
tions with the Union and did not want to give anything to
anyone until negotiations were either completed or until the
Union was voted out. In this respect, I conclude that the
withholding of these wage increases was discriminatorily
709LAIDLAW TRANSIT
13 Having concluded that the Company violated Sec. 8(a)(1) and
(5) of the Act in relation to this change, it is not necessary to con-
clude that the action also violated Sec. 8(a)(3).
motivated and therefore violative of Section 8(a)(1) and (3)
of the Act as well. Louisiana-Pacific Corp., supra.
I. Alleged Change in Charter Assignments
This allegation is not related to the allegation described
above in section C, where the Company, on October 29,
1991, explicitly changed the charter system and then with-
drew the changes after Jane Bailey complained. Instead, we
are dealing with an allegation regarding some events that
took place in February 1992.
In addition to regular school runs, the Company charters
its buses to whoever wants to use them. For example, many
of the charters consist of taking students to athletic or cul-
tural events. As a general rule, when charters are received,
they are posted on Monday for the week and the employees
can bid on them by writing their names on notices announc-
ing each charter. (Each charter run is posted separately.)
Charters that came in during the week were posted, if pos-
sible, on the day before the run and, if not possible, a de-
scription of the charter was radioed to the drivers while on
the road. If drivers were interested, they would put their
names on the paper announcing the particular charters that
they desired, and the driver with the highest seniority would
get the run. This would be signified when Nancy Hartley put
a circle around the winning driver’s name.
Basically the General Counsel’s contention is that since
February 1992, Nancy Hartley, began circling the names of
the winning drivers at around noon instead of her previous
practice of doing this at 4 or 4:30 p.m. (Regina Martin con-
firmed that this was a change in the past practice.) It is con-
tended that this alleged change in procedure disadvantaged
some of the drivers who might not have been able to get
their bids in until the afternoon. There was testimony that in
a few instances Marion Oates had her name circled before
other drivers made their bids. The evidence, however, also
shows that in each instance, the driver with greater seniority
than Oates obtained the run when it was brought to the atten-
tion of Hartley.
There was no official notice of this alleged change to the
employees and no notification was given to the Union.
It seems to me that the evidence supports the contention
that there indeed was a change in the policy of awarding
charters when Nancy Hartley began circling the winning
driver at noon instead of later in the afternoon. I can see how
this might affect drivers who might be on the road or not
around when the charters are usually posted in the morning.
For example, if a driver was not present at the terminal on
a Tuesday morning or already out on the road when a charter
was received and posted, she might not get an opportunity
to bid on the charter if it was assigned before she returned
to the terminal in the afternoon.
As this change was unilaterally made without notification
to the Union, it is concluded that the Respondent has vio-
lated Section 8(a)(1) and (5) of the Act in this respect.13
J. The Warnings to Jane Bailey and Cindy Greene
On April 15, 1992, Cindy Greene and Jane Bailey were
assigned to do a charter trip from the Mystic Middle School
to the Peabody Museum in New Haven Connecticut. Before
embarking on the charter, they each did their first morning
runs. The charter left at 8 a.m. and was scheduled to return
at 3:30 p.m. This meant that both Greene and Bailey would
not be able to do certain of their normal afternoon runs,
which had to be covered by other drivers.
Having seen enough at the museum, the children and the
teachers decided to return a little early. Consequently,
Greene and Bailey returned to the school at about 2:15 to
2:20 p.m. According to Greene, when the got to the New
London bridge, they heard Joyce Warrell say over the radio,
‘‘if you’re looking for run 8, it’s on its way.’’ This refers
to Jane Bailey’s bus and Warrell’s comment could be con-
strued as meaning that Warrell had been notified that Jane
Bailey’s charter was returning early and that she would be
available to do her regular afternoon run from Mystic Middle
School.
On arrival at Mystic Middle School, Regina Martin was at
the school in her bus. When Bailey and Greene decided to
return to the base, on the assumption that their early after-
noon runs from Mystic Middle School were covered, Regina
Martin asked over the radio where they were going. Greene
asked Martin why she was asking, and Martin testified that
she asked this question basically to stir up a little trouble.
Martin also testified that Sharon Fish was already at the
school in order to cover for Bailey. Greene and Bailey then
proceeded to the terminal and according to Bailey, she re-
ceived a radio transmission from Warrell asking where she
was. Bailey states that she told Warrell that she was on her
way back to base and that Warrell did not make any re-
sponse or indicate that she was supposed to be at Mystic
Middle to make her afternoon run from that school. Later in
the afternoon, both Greene and Bailey went out and did all
of the remainder of their afternoon runs. (That is, the only
run that each did not do was the afternoon run from the
Mystic Middle School and that run was scheduled to take
place during the time that these two drivers were originally
scheduled to be out on the Peabody Museum charter run.)
In the following week, Greene and Bailey received warn-
ings which originally stated that they ‘‘should have called in
on radio from school after drop off,’’ that they ‘‘refused to
answer a call from base,’’ and that ‘‘after returning to base
at 2:30 p.m., they did not do their p.m. runs.’’ Greene and
Bailey refused to sign these warnings and told Warrell that
the assertions were not true. (In fact, the warnings were later
modified to indicate that the only run that either did not do,
was from the afternoon Mystic Middle School run.)
Warrell testified that on April 15, 1992, she received word
from the Mystic Middle School that the Peabody run was
coming back early and that she was told by Nancy Hartley
to have Greene and Bailey do their normal afternoon runs.
Warrell states that she radioed to these two drivers but re-
ceived no answer. She also states that she heard from Regina
Martin that Bailey and Greene were on Flander’s Road. In
essence, her rationale for issuing these warnings appears to
be that when she tried to reach Bailey and Greene in order
to have them do their regular run from Mystic Middle, they
did not respond.
Although Warrell asserted that she attempted to reach Bai-
ley and Greene over the radio, this was not corroborated by
an other witness. In fact, Regina Martin, who is no friend
of the Union, testified that she did not hear Warrell call ei-
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ther driver over the radio. Moreover, Martin testified that
Bailey’s run from Mystic Middle was covered by Sharon
Fish. Martin further testified that if it had been her, she too
would have gone back to the base before doing the later
afternoon runs.
I believe that Bailey and Greene were not contacted by
Warrell to do the Mystic Middle School afternoon run and
that they returned to base with the reasonable expectation
that this run had been covered. (Also, contrary to the warn-
ings as originally worded, they both did all of the rest of
their afternoon runs.) In my opinion, there was nothing that
either Bailey or Greene did which was incorrect or insubordi-
nate. As it is concluded that the warnings issued to them
were unjustified, I conclude, in light of the evidence of
antiunion animus, that these warnings were discriminatorily
motivated and violative of Section 8(a)(1) and (3) of the Act.
K. Alleged Refusal to Give Jane Bailey Training Work
According to Jane Bailey when she gave up her position
as STP supervisor she was assured by management that she
would be given the opportunity to train employees as needed.
There is a premium paid to an employee while engaged in
training.
There was testimony that during the summer of 1991,
Cathy Toth requested training in order to pass the new exam
and that she was put off until shortly before the school year
started. The inference here is that if Joyce Warrell was not
available to train Cathy Toth, the Company should have as-
signed that task to Jane Bailey.
In my opinion, the evidence as a whole, does not convince
me that Jane Bailey was denied training work. Although
there were a number of new people who needed to be trained
and older employees who needed to be prepared for their
proficiency tests, there is no evidence that Joyce Warrell did
not accomplish this work by herself or that the Company
used anyone else for training purposes.
CONCLUSIONS OF LAW
1. By taking away the summer Navy run from Doreen
Aymelek and by discharging her on October 13, 1991, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
2. By withholding annual wage increases to employees in
September 1991, the Respondent violated Section 8(a)(1),
(3), and (5) of the Act.
3. By refusing to recall or rehire, or by delaying the recall
or rehire of, employees who were laid off at North
Stonington in June 1991, the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
4. By delaying in the recall or rehire of Lori Bailey, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
5. By soliciting employee grievances and by attempting to
bypass the Union by dealing directly with the employees, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
6. By withdrawing a contract offer on its acceptance by
the Union, the Respondent bargained in bad faith and vio-
lated Section 8(a)(1) and (5) of the Act.
7. By issuing disciplinary warnings to Jane Bailey and
Cindy Greene in April 1992, the Respondent violated Section
8(a)(1) and (3) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
It is obvious that during the 1991–1992 school year, there
were not enough positions to accommodate all of the laid-
off North Stonington drivers, even taking into account the
hiring of new drivers such as Henson, Eastty, Joseph, Desy,
and Cozzolino, and the greater utilization of mechanics, su-
pervisors, and drivers from other terminals to do the work.
It therefore is recommended that any such North Stonington
driver who has not already been offered employment be of-
fered a job at the Stonington terminal if a position is avail-
able (terminating if necessary any new drivers employed
since June 1991) and, if no position is available, offering to
place them on a preferential hiring list.
It is also recommended that backpay be granted to Donna
Mayne whose delay in being recalled was found here to be
discriminatorily motivated. That is, backpay for her should
run from the beginning of the 1991–1992 school year until
the time that she was offered employment in 1992.
As to the other North Stonington drivers, I shall leave for
compliance any issues as to which employees should be enti-
tled to backpay on account of the Company’s failure to offer
them employment and the amounts of money, if any, that
they would be owed.
Backpay is also recommended for Lori Bailey for the pe-
riod from January 9, 1991, when she asked to go back to
work until July 1991 when employment was offered to her.
As to Doreen Aymelek, I have concluded that she was
discriminatorily taken off a summer run and was subse-
quently discharged for unlawful reasons on October 13,
1991. Therefore, it is recommended that the Respondent
offer her reinstatement to her former job and make her whole
for any loss of earnings and other benefits resulting from the
illegal actions against her.
Insofar as the wage increase, it is recommended that the
Respondent make whole the employees here for the increases
which I have found were illegally withheld. In computing the
amounts, it is my opinion that the raises granted to the
Stonington employees should be the same as the amounts
given to those employees located at the other terminals in the
eastern Connecticut district where wages are not regulated by
a collective-bargaining agreement.
In all instances where monetary relief is recommended, the
amounts should be computed on a quarterly basis as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
711LAIDLAW TRANSIT
14 As noted in Colfor, Inc., supra at 1175, the Respondent’s obliga-
tion to bargain will not stop when the certification year expires. The
Employer would be required to continue bargaining after the period
expires unless the Employer can establish, ‘‘(1) that at the time of
the refusal to bargain the union in fact no longer enjoys a majority
representative status; or (2) the employer’s refusal to bargain was
predicated on a good-faith and reasonably grounded doubt of the
union’s continued majority status.’’
The General Counsel contends and I agree that the remedy
should also extend the certification year by 6 months. As it
is my conclusion that the Respondent undermined the bar-
gaining by its actions, I think that the Union should have a
reasonable length of time to bargain in good faith. See for
example Colfor, Inc., 282 NLRB 1173 (1987), where the
Board ordered a 6-month extension of the certification
year.14
[Recommended Order omitted from publication.]