Lasalle Bus Service, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 2000

331 N.L.R.B. 1005 (N.L.R.B. 2000)

LASALLE BUS SERVICE 1005
LaSalle Bus Service, Inc. and Freddie L. Bowles.
Cases 29–CA–22682 and 29–CA–22859
August 10, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On December 14, 1999, Administrative Law Judge D.
Barry Morris issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, LaSalle Bus Service, Inc.,
Brooklyn, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
Substitute the following paragraphs for 2(a) and relet-
ter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
Freddie L. Bowles full reinstatement to his former posi-
tion, or if such position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed.
“(b) Make whole Freddie L. Bowles, Jermaine Phillip,
Camilo Marin, Lionel Merilien, and Joe Frink for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
In view of the record ambiguity as to the time of reinstatement, we
leave to compliance to determine the amount of loss of earnings and
benefits, accrued by the four discriminatees, Joe Frink, Camilo Marin,
Lionel Merilien, and Jermaine Phillip.
Member Brame notes that the judge, based on his crediting of em-
ployee Joe Frink’s testimony, found that the Respondent offered rein-
statement to discriminatees Frink, Marin, and Phillip on April 12, 1999.
Because the record shows that Frink testified that the Respondent told
employees the previous Friday night, April 9, 1999, that they “still had
[their] jobs,” Member Brame finds that the employees were reinstated
that evening, rather than the following Monday, April 12.
Carlos Colon-Macharg and Larry Singer, Esqs., for the Gen-
eral Counsel.
Norman Turk, Esq., of Brooklyn, New York, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Brooklyn, New York, on October 28,
1999.1 On charges filed on April 13 and July 8, a consolidated
complaint was issued on July 23, alleging that LaSalle Bus
Service, Inc. (the Respondent) violated Section 8(a)(1) of the
National Labor Relations Act, as amended the (the Act). Re-
spondent filed an answer denying the commission of the al-
leged unfair labor practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on De-
cember 3.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its principal of-
fice and place of business in Brooklyn, New York, has been
engaged in the business of providing bus transportation for
various school districts. Respondent has not denied, and it is
therefore admitted, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Freddie L. Bowles, also known as (DC), was a mechanic for
Respondent. He also did auto bodywork for the Company. On
April 8, Errol Brown, another mechanic, was discharged. The
following morning the mechanics discussed among themselves
the fact that Brown was discharged and decided to strike.
Bowles testified that he then asked Mel Barbera, the dispatcher,
what happened to Brown. Bowles testified that Barbera re-
plied, “Brown was no longer with the bus company and that for
the mechanics to do the company a favor and get the f—out.”
Bowles testified that the mechanics then went outside. After
about 15 minutes, Leonard D’Amico, a supervisor, approached
the group and told them that Joseph Fazzia, the president of
Respondent, who was in Puerto Rico at the time, spoke to
D’Amico by telephone and said that the mechanics should get
their tools and the shop would be locked.
Later that morning Brown was reinstated and the mechanics
went inside the building and spoke to Fazzia on speakerphone.
Bowles testified that Fazzia told him, “I’m finished, get my
tools and go.” Bowles testified that on the following Monday
he met with Fazzia in person. He testified that Fazzia told him,
“[M]y services were no longer needed because I’m the one who
instigated the whole thing.” Bowles also testified that he spoke
with Fazzia about 4 weeks later and Fazzia told him that he was
the “cause of that incident.”
Camilo Marin, another mechanic, appeared to me to be a
credible witness. He testified that during the morning of April
9 Bowles asked Barbera “[W]hat happened to Errol?” Barbera
1 All dates refer to 1999 unless otherwise specified.
331 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
responded, “[H]e got fired and that’s the way it is and if you
don’t like it, get the f—out.” Marin testified that a little while
later, while the mechanics were standing outside, D’Amico
approached them and said, “Joe Fazzia said that we should all
get our stuff and leave, that we’re fired.” Marin further testi-
fied that later that day the mechanic’s spoke with Fazzia by
speakerphone and Fazzia told Bowles, “DC you’re over, we’re
through, that’s it, you’re finished.” Marin testified that he met
with Fazzia in person the following Monday, at which time
Fazzia told him that, “it was DC that started this.”
Joe Frink, a mechanic for Respondent, also appeared to me
to be a credible witness. He testified that on the morning of
April 9, when the mechanics expressed their “displeasure” over
Brown’s termination, Barbera told them to “get the f—out.”
Later that morning D’Amico told them that he had spoken to
Fazzia and that “we had a half an hour to get our tools and get
out of the shop.” Frink testified that the following Monday,
April 12, the mechanics met personally with Fazzia. He testi-
fied that Fazzia told them that, except for Bowles, “[W]e all
still had our jobs.”
D’Amico testified that on the morning of April 9, when he
spoke to the mechanics while they were standing outside, “eve-
rything was coming through DC.” When asked what that
meant, D’Amico replied that Bowles was the “spokesman for
all of them.” Later that morning D’Amico contacted Fazzia
who said that the mechanics should return to work and “we’ll
straighten it out on Monday.” D’Amico gave the mechanics the
message but they refused to return to work. D’Amico testified
that he then told the mechanics “[I]f they didn’t come back to
work they would be fired.”
Fazzia testified that about 3 weeks prior to April 9 he had a
discussion with Bowles at which time he told Bowles that “ei-
ther he had to clean up the fleet . . . or I was going to farm the
work out.” He testified that he made the decision to “farm out”
the bodywork after Easter. He testified that after what tran-
spired on Friday, April 9, “I knew it was coming, I had to make
a decision that weekend whether or not I was going to keep
Fred for another week . . . and that wasn’t a decision I made on
Friday. It was a decision I made probably on the plane coming
back from Puerto Rico.”
B. Discussion and Conclusions
1. Discharges
I credit Marin’s testimony that during the morning of April
9, while the mechanics were standing outside, D’Amico ap-
proached them and said, “Joe Fazzia said that we should all get
our stuff and leave, that we’re fired.” Frink similarly testified
that D’Amico told the mechanics that he had spoken with
Fazzia and that “we had half an hour to get our tools and get
out of the shop.” Fazzia asked Merilien to return to work on
April 9, which he did. The other mechanics, however, did not
return to work. Frink credibly testified that on Monday, April
12, the mechanics met personally with Fazzia. Fazzia told
them that, except for Bowles, “[W]e all still had our jobs.”
The complaint alleges that Bowles, Phillip, Marin, Merilien,
and Frink were discharged on April 9 for having engaged in a
strike to protest Brown’s discharge. The complaint further
alleges that, except for Bowles, the other mechanics were not
reinstated until April 12. I find that all of the mechanics were
discharged on April 9 for engaging in a strike to protest
Brown’s discharge. This was protected, concerted activity.
NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962).
Respondent’s discharge of the employees for having engaged in
such activity constitutes a violation of Section 8(a)(1) of the
Act. Waco Insulation, Inc., 223 NLRB 1486 (1976), enfd. in
part and denied in part on other grounds 567 F.2d 596 (4th Cir.
1977); Gatliff Coal Co. v. NLRB, 953 F.2d 247, 251 (6th Cir.
1992). I also find that Merilien was reinstated on April 9 and
that Philip, Marin, and Frink were reinstated on April 12.
2. Bowles
Bowles was discharged on April 9 along with the other me-
chanics. In addition, I credit Bowles’ testimony that on April 9
during the speakerphone conversation, Fazzia told him, “I’m
finished, get my tools and go.” Similarly, Marin credibly testi-
fied that during that conversation Fazzia told Bowles, “DC
you’re over, we’re through, that’s it, you’re finished.” While
Fazzia testified that he meant that they were through “as
friends,” I find that testimony to be incredulous. The plain
meaning of Fazzia’s remark was that Bowles was discharged.
Bowles was the only mechanic not to be offered reinstate-
ment. D’Amico testified that during the morning of April 9,
when he spoke to the mechanics while they were standing out-
side, “[E]verything was coming through DC.” When asked
what that meant, he replied that Bowles was the “spokesman
for all of them.” In addition, I credit Bowles’ testimony that on
April 12 Fazzia told him, “[M]y services were no longer needed
because I’m the one who instigated the whole thing.” Simi-
larly, I credit Marin’s testimony that on April 12 Fazzia told
him that “it was DC that started this.”
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board requires that the General Counsel make a prima facie
showing sufficient to support the inference that protected con-
duct was a motivating factor in the employer’s decision. Once
this is established, the burden shifts to the employer to demon-
strate that the “same action would have taken place even in the
absence of the protected conduct.”
I believe that the General Counsel has made a prima facie
showing sufficient to support the inference that protected conduct
was a motivating factor in Respondent’s decision to discharge
Bowles. Respondent argues, however, that it had intended to
“farm out” the bodywork, and that was the reason for Bowles’
discharge. I have found that Bowles was discharged on April 9.
Fazzia testified that after the events of April 9, “I had to make a
decision that weekend whether or not I was going to keep Fred
for another week . . . and that wasn’t a decision I made on Friday.
It was a decision I made probably on the plane coming back from
Puerto Rico.” Thus, Fazzia himself admitted that he did not
make the decision to “farm out” the bodywork until after Bowles
had already been discharged. In addition, Bowles not only did
bodywork but was also a mechanic. No adequate showing has
been made that there was insufficient mechanical work for
Bowles to perform. Finally, while Fazzia testified that he
planned to “farm out” the bodywork, no documentation was in-
troduced to support that claim nor was any adequate showing
made of when the supposed farming out of the work was to take
place. Accordingly, I find that Respondent has not satisfied its
burden of showing that the “same action would have taken place
even in the absence of the protected conduct.” Wright Line, su-
pra, 251 NLRB at 1089. I therefore find that Respondent’s dis-
charge of Bowles and its failure to offer him reinstatement, vio-
lated Section 8(a)(1) of the Act.
LASALLE BUS SERVICE 1007
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Bowles, Phillip, Marin, Merilien, and Frink
for activities protected by the Act, and by failing to offer rein-
statement to Bowles, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it necessary to order Respondent to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having unlawfully discharged Freddie L. Bowles,
Jermaine Phillip, Camilo Marin, Lionel Merilien, and Joe Frink, I
shall order Respondent to make them whole for any loss of earn-
ings that they may have suffered from the time of their discharges
until Respondent’s offers of reinstatement. All of the mechanics
except for Bowles have been reinstated. With respect to Bowles,
I shall order Respondent to offer him full reinstatement to his
former position, or if such position no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority or
other rights and privileges. Backpay shall be computed in accor-
dance with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1172 (1987).2
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, LaSalle Bus Service, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in protected
activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Freddie
L. Bowles full reinstatement to his former position, or if such
position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privileges.
Respondent shall also make whole Bowles, Jermaine Phillip,
Camilo Marin, Lionel Merilien, and Joe Frink for any loss of
earnings with interest, in the manner set forth in the remedy
section of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any references to the unlawful discharges and within 3
days thereafter notify the employees in writing that this has

2 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. Sec. 6621.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
been done and that the layoffs and discharges will not be used
against them in any way.
(c) Preserve, and within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 29 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by Respondent at any time since April 9, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
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 ordered us to post and
abide by this notice.

WE WILL NOT discharge employees for activities protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of this Order, offer
Freddie L. Bowles full reinstatement to his former position, or
if that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make whole Freddie L. Bowles, Jermaine Phillip,
Camilo Marin, Lionel Merilien, and Joe Frink, for any loss of
earnings they may have suffered, with interest.
WE WILL within 14 days from the date of this Order, remove
from our files any references to the unlawful discharges and WE
WILL, with 3 days thereafter, notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
LASALLE BUS SERVICE, INC.
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”