Montauk Bus Co.

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1128 (N.L.R.B. 1997)

1128
324 NLRB No. 172
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
In adopting the judge’s finding that the Respondent has not met
its burden of showing that the striker replacements it hired were per-
manent, we do not rely on his statement that John Mensch Jr., who
interviewed applicants, was unable to specify the particular employ-
ees to whom he promised permanent status.
Member Higgins notes that the Respondent has excepted to the
judge’s rejection of its contention that personal attacks on it by
Kevin E. Boyle, the Union’s general executive vice president, should
disqualify Boyle from acting as the bargaining representative. Be-
cause the Respondent did not explicate this exception and did not
argue this point in its supporting brief, he would find that its excep-
tion may be disregarded. Show Industries, 312 NLRB 447 fn. 2
(1993).
2 We find it unnecessary to decide whether the Respondent’s re-
fusal to reinstate striking employees, upon their unconditional offer
to return to work, violated Sec. 8(a)(3) of the Act rather than only
Sec. 8(a)(1). An 8(a)(3) finding would not add materially to the rem-
edy.
Montauk Bus Company and United Industry Work-
ers Local 424, a Division of United Industry
Workers District Council 424. Cases 29–CA–
19466 and 29–CA–19518
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On January 24, 1997, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Montauk Bus Company,
Holbrook, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Saundra Ratner Esq., for the General Counsel.
Neil M. Frank Esq. and Christopher T. Borruso Esq., for the
Respondent.
Stuart A. Weinberger Esq. and Julie P. Schatz Esq, for the
Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on September 30, October
1 and 2, 1996. The charges were filed on September 7 and
28, 1995. The consolidated complaint was issued on March
29, 1996, and alleged as follows:
1. That on July 1, 1995, the Respondent was awarded a
contract to provide schoolbus services for the Sachem School
District in Suffolk County, New York, and that since then
the Respondent has continued to operate in the same manner
as the former company; namely Laidlaw Transit Inc.
2. That on taking over the operations from Laidlaw, the
Respondent has employed as a majority of its employees,
persons who were previously employed by Laidlaw.
3. That the following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
All school bus drivers employed by the Employer, per-
forming services in the Sachem School District and ex-
cluding all dispatchers, mechanics, office clerical em-
ployees, guards and supervisors as defined in the Act.
4. That the Respondent has refused to recognize and bar-
gain with the Union.
5. That from about September 11 until September 18,
1995, certain of the Respondent’s employees engaged in an
economic strike and established a picket line at the Employ-
er’s bus depot located at 177 Morris Avenue, Holbrook, New
York.
6. That on September 18, 1995, the Union on behalf of
the striking employees, offered unconditionally to return to
work.
7. That since September 18, 1995, the Respondent has
failed and refused to reinstate or offer to reinstate the striking
employees.
The Respondent makes a number of arguments which can
be summarized as follows:
1. It is not a successor to Laidlaw and does not have an
obligation to bargain with the Union. Among other things,
the Company argues that there is no continuity of employ-
ment and that the unit no longer would be appropriate.
2. That even if it was a successor, the Union is disquali-
fied from representing the employees because of its conduct
which among other things, disparaged the Company’s prod-
uct and constituted an impermissible conflict of interest.
3. That the strikers are not entitled to reinstatement be-
cause (a) they were permanently replaced and (b) they were
engaged in unprotected activity.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the business of providing
schoolbus services to public and private schools. It concedes
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The par-
ties also agree and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
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1129MONTAUK BUS CO.
1 We noted that the unit set forth in the certification and the unit
set forth in the recognition clause of the contracts are different from
the unit alleged to be appropriate in the consolidated complaint.
More about this later.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The History of the Bargaining Unit
The Sachem School District is located in Long Island,
New York, and is bordered by the towns of Bohemia,
Ronkokoma, Lake Grove, and Holbrook, New York. It is the
largest School District in Long Island, comprising about 25-
square miles and includes 16 to 17 schools. The District, em-
ploys some of its own bus drivers, but the bulk of the trans-
port has been contracted out to private companies. The Dis-
trict has about 80 bus routes which requires about 88 to 89
busdrivers.
On May 23, 1989, the Regional Office of the Board, after
an election, issued a certification to the Union in relation to
certain employees of Suburbia Bus Corp. The unit set forth
in the certification was:
All school bus drivers, working out of the Employer’s
Bohemia yard and performing services in the Sachem
School District, excluding all dispatchers, mechanics,
office clerical employees, guards and supervisors as de-
fined in the Act.
From 1989 to 1992, the School District contracted the
work to Suburbia Bus Corp., and this company had a series
of collective-bargaining agreements with the Union covering
the drivers. In 1992, the School District awarded the bus
contract to another company called Laidlaw Transit Inc., and
after hiring Suburbia’s drivers, Laidlaw entered into a collec-
tive-bargaining agreement with the Union. The unit descrip-
tion in Laidlaw’s contract was essentially the same as the
one described in the above noted certification and the pre-
vious contract between Suburbia and the Union. The recogni-
tion clause in the collective-bargaining agreement read:
The employer recognizes the Union pursuant to NLRB
Certification 29–RC–7179 as exclusive representative of
all its schoolbus drivers working out of its Bohemia
yard and performing services in the Sachem School
District for the purpose of collective bargaining. . . .
Should the Employer obtain additional work at the Bo-
hemia location during the term of this Agreement, all
such employees, except those excluded in this para-
graph shall be included in the bargaining unit.1
It should be noted that Laidlaw is a Delaware corporation
which is engaged in providing schoolbus services throughout
the United States and having its principle offices in Canada.
See Laidlaw Transit, 318 NLRB 695 (1995). At the time of
the events herein, Laidlaw, according to Tom McEnany, its
division manager for Long Island, had three separate labor
contracts with Local 424 covering five of its terminals in
Long Island. One covered the Bohemia location that became
null and void when Laidlaw lost the Sachem School District
contract. Another covered three terminals servicing eight
School Districts. And a third contract covered a single termi-
nal which Laidlaw obtained by purchasing a company that
had a contract with Local 424. (It is unknown to me how
many School Districts were serviced by the third contract.)
B. The School District puts the Contract out for Bid
In 1995, the Sachem School District decided to open the
contract for new bids. This resulted in the awarding of the
contract for home to school routes, for the school year, Sep-
tember 1995 to June 1996, to Montauk. Nevertheless,
Laidlaw retained, for that year only, the work of providing
buses and drivers for after school events. (Typically, sporting
events, etc.) For the following year, 1996 to 1997, Montauk
was awarded all of the work including the after schoolwork.
Prior to the bus contract being awarded, the Union began
to take steps in an attempt to insure that any new contractor
would hire the employees, recognize the Union and assume
the collective-bargaining agreement.
On February 6, 1995, the Union by Kevin E. Boyle, its
general executive vice president, sent a letter to John M.
Mensch Sr., president of Montauk (with copies to the School
Board), which stated in pertinent part:
As a result of your attendance at a bidders con-
ference on February 3, 1995, concerning the transpor-
tation contract for the Sachem Central School District,
it appears that you may submit a bid on February 10,
1995.
In furtherance of my statements at the bidders meet-
ing, United Industry Workers Local 424, represents the
drivers providing service to the district. They have an
average of 12-1/2 years of service in the district, and
over 90% the drivers are district residents and tax-
payers.
In order that you have the proper labor data and so
that no bidder is prejudiced by not having a copy of the
Collective Bargaining Agreement, I have enclosed
same.
Should your company be the low responsible bidder,
we will provide you the names, addresses, phone num-
bers and other pertinent data for each driver in order
that you may contact them for what I would guess
would be the scheduling of an introduction meeting for
your new employees.
We look forward to a smooth transition and school
opening in September should your company be awarded
the bid.
On March 15, 1995, Boyle wrote another letter to Mensch
Sr. which enclosed a collective-bargaining agreement which
the company was asked to sign in the event Montauk won
the contract. In pertinent part this letter stated:
In Wednesday’s Western Edition of Suffolk Life,
you placed an ad which was a report of an apparent let-
ter you sent to Thomas Dodson, President of the Sa-
chem Central School District Board of Education. Con-
tained therein . . . you state that if Montauk Bus were
to be awarded the Sachem transportation contract, it
would maintain employee (driver) wages and benefits.
Additionally, you appropriately acknowledged the tre-
mendous performance of the drivers who provide serv-
ice in the district.
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1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since the district has yet to award the transportation
contract and your company could potentially be award-
ed same, I have prepared for your signature a successor
agreement which will allow you to sign an agreement
that mirrors your words.
If your letter was not merely a political statement,
you should have no problem signing the enclosed. A
copy of the collective bargaining agreement referred in
the successor agreement is enclosed.
On the same date, Boyle also wrote a letter to the School
District asserting his belief that Montauk intended to elimi-
nate the current drivers and reduce wages and benefits. He
ended his letter by stating, ‘‘We urge you to adopt Laidlaw’s
bid so that uninterrupted, professional service to the district
can be maintained.’’
Soon thereafter, the Sachem School District awarded the
home to school portion of the schoolbus service to Montauk,
while awarding the after schoolwork to Laidlaw. The home
to school portion of the work comprised about 90 percent of
the contracted out schoolbus driving in the District. This con-
sisted of 79 routes.
On March 22, 1995, Boyle sent another letter to Mensch.
In pertinent part, this read:
We would like to take this opportunity to congratu-
late you on being awarded the Sachem Central School
District home to school transportation contract com-
mencing with the 1995/1996 school year.
We were pleased to see your commitment to honor
the wages, benefits, terms and conditions of employ-
ment under which our members work, together with
your commitment to hire all the drivers.
As you have been previously advised, . . . Local
424 is the certified . . . representative of the employees
currently providing service to the Sachem School Dis-
trict. Though there is considerable time between now
and the beginning of the 1995/1996 school year, we
think it is important that you have the opportunity to
meet with the drivers so that you may have appropriate
forms and personnel data filled out by your new driv-
ers. Additionally, it will be necessary for both Montauk
. . . and . . . Local 424 to sign off on a successor
agreement covering this unit of employees.
This letter was followed up by another letter dated March
27, wherein Boyle stated that he had not heard from Mensch.
On March 28, 1995, Mensch Sr. responded to Boyle as
follows:
The contract that has been awarded to the transportation
services . . . does not go into effect until July 1, 1995.
Therefore, it would be inappropriate to meet with you
or any of the employees of Laidlaw Transit Inc., as we
wish not to create an atmosphere to be accused of inter-
fering with the present operation. I would be more than
happy to meet with you after July 1, 1995, to discuss
whatever matter you wish to bring forward.
On March 29, 1995, Boyle sent a letter to the School Dis-
trict, with a copy to Montauk. This read, in pertinent part:
As you know, Montauk . . . was awarded the home
to school transportation contract. . . . As you are fur-
ther aware, John Mensch, . . . prior to his company
being awarded the contract has submitted a letter to the
school board which made certain guarantees with re-
spect to the continuation of service by the current driv-
ers together with the assumption of the wages, benefits,
and terms and conditions of employment under which
they work.
[I] have attempted to contact the principles of
Montauk . . . in an effort to meet with them to effec-
tuate the above. . . . [I]t appears that the company has
no intention of honoring the terms and conditions of
employment of the drivers, and moreover claims it
never guaranteed that if hired, the current drivers would
work in the Sachem School District.
[W]e therefore are requesting that you forthwith va-
cate the award of home to school transportation to
Montauk Bus. To do otherwise would be irresponsible.
If you can not trust a company to live up to basic obli-
gations what can you expect in the way of service and
safety obligations?
. . . .
We are therefore serving notice that should there be
no formal agreement in place between Montauk . . .
and Local 424 by Monday, April 17, 1995, we will take
appropriate preemptive action to indicate the serious-
ness of Montauk Bus Company’s actions to the district
and the community at large. This includes but is not
limited to the withdrawal of the services our members
provide.
[I]t is our sincere hope that the district will intervene
by either vacating its award, or by compelling Montauk
Bus officials to enter into agreement with us on behalf
of the drivers.
On April 4, 1995, Laidlaw, at the request of the Union,
sent a letter to Montauk indicating that it had no problem
with Montauk meeting with the drivers and in negotiating
with the Union.
Also on April 4, 1995, Boyle told the drivers to apply for
jobs at Montauk and told them to them to take jobs even if
they were told that they might be assigned to work outside
the district.
On May 2, 1995, Boyle sent a letter to the School District
complaining about the fact that Montauk had not yet met
with any of the former Laidlaw drivers. This letter read in
pertinent part;
To date not a single driver has been hired by
Montauk bus.
Drivers who have gone through the application proc-
ess . . . have been told that if hired they may work out
of other Montauk bus locations serving other districts.
When asked by every driver who has applied, what is
the pay and benefit I will receive? The company has in-
formed each driver ‘‘that no determination has been
made.’’
In short, though the district awarded Montauk Bus
the contract in part as a result of their guarantee . . .
that it would hire all the bus drivers to service the dis-
trict and would maintain wages and benefits, not a sin-
gle action has been taken to comply with same.
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1131MONTAUK BUS CO.
. . . .
We once again call upon the district to seek enforce-
ment of the guarantee made to it. To do otherwise
would be a breach of the board’s commitment to the
community to enforce its vendor contacts and commit-
ments related thereto.
While awarding a contract to a company who bid 1.6
million dollars above the lowest 4 year bidder only to
lower it 1.7 million after the final bid process, should
have raised enough eyebrows to question the validity
both ethically and legally of same, it apparently didn’t.
To now allow that same awarded company to snub its
nose at the school board by not complying with a spe-
cific guarantee to the district, we believe calls into
question the commitment of district officials to insure
the safe, reliable transportation. . . .
So as to insure same, we ask that you take the fol-
lowing immediate steps:
1. Advise Montauk Bus to acknowledge its commit-
ment by:
a) Call a meeting of all drivers.
b) Sending . . . a guarantee of employment letter
containing the wages and benefits guarantee it made
to the school board, specifically stating what the
wages and benefits will be to each driver currently
serving the district.
c) Complete the above by no later than May 10,
1995.
. . . .
We and each of the drivers want a smooth transition
of companies providing service to our community. We
are all prepared to facilitate same.
If however, our member’s jobs, wages and benefits
are jeopardized in any way, we are also prepared to do
whatever is necessary to ensure the livelihood of the
drivers and their families.
Let it be clear that those who seek to take food off
the table of our members and their families, will have
the food, table and chairs taken from theirs.
On May 9, 1995, the Respondent sent to a letter to former
Laidlaw’s employees which read:
[T]he transportation contract between the Sachem
School District and the Montauk Bus Company is not
in effect until July 1, 1995. Therefore it has been my
position, due to the nature of the competition between
Laidlaw Transit, Inc., and Montauk . . . that I would
not interfere with the present driver operations until the
1994–95 school year is complete.
The Montauk Bus Company, Inc., has made a pro-
fessional commitment to the Sachem School District to
utilize brand new equipment and to hire all of the avail-
able, qualified Laidlaw drivers (the word qualified is
meant to be, all personnel who meet rules, regulations
and drug testing standards that are required under NYS
19A and 156.3 Commissioner of Education Regula-
tions). There will not be a reduction in the hourly wage
for all current Laidlaw drivers for the upcoming 1995–
96 school year and it is my intention to honor that com-
mitment.
In the next several weeks my staff and I will be con-
tacting you personally regarding our next pre-employ-
ment qualification segment. Hopefully, at the time,
Montauk . . . will be in our new facility located within
the Sachem School District. I have also enclosed for
your review, my recent letter to Mr. Bruce Singer. . . .
This letter is self explanatory. I believe it is the best
interest of everyone that Laidlaw . . . your present em-
ployer, and your Union representatives explain their po-
sitions as to their plans in servicing the remaining part
of the 1995–96 transportation contract with the Sachem
School District.
On June 8, 1995, Boyle sent another letter to the School
District, which in pertinent part read:
[T]o date, Mr. Mensch has refused to meet with the
drivers concerning their positions in the 95/96 school
year. Mr. Mensch has continually stated to us, the driv-
ers and the district, that his reason for not meeting with
them is so as not to infringe on Laidlaw’s contract. . . .
Yesterday’s Port Jefferson meeting greatly concerns
the Sachem drivers as well as myself in that to date,
no effort has been made by the district to insure that
Montauk . . . has the drivers, as well as the financing
in place for the purchase of the new buses he promised
to the Sachem district and the community.
Information passed along to us suggests that he has
yet to have financing for the promised buses.
. . . .
Remember, it is now June 8, 1995. With apparently
no bus order financed, no yard and no formal contract
with the drivers, not to mention the time delays in reg-
istering and DOT inspecting buses, time is of the es-
sence.
By this letter, I am merely suggesting that as district
officials with the responsibility of insuring the profes-
sional, safe and reliable transportation of the district’s
children, you can no longer sit idly by, turning a deaf
ear to what is potentially a major problem brewing.
Each and every driver wants Montauk. . . . to suc-
ceed in Sachem. But as professionals who reside in the
district and whom have served it well, they deserve bet-
ter than being put on the back burner. The district as
well deserves better.
Again, I am requesting, on behalf of each driver who
serves the district, that you demand that Montauk Bus
meet with the drivers as they did with Port Jefferson.
Additionally I suggest you get a financing commitment
for both the chaises and bodies of the 88 new buses
. . . as well as some assurance as to where the buses
will be dispatched from. . . .
Prior to obtaining the Sachem contract, Montauk had its
main yard and facility at Calverton, Long Island, which is
about 18 miles away from Bohemia and is well outside the
Sachem School District. It also had terminals in Bellport
which is closer to the Sachem School District and in Hamp-
ton Bays which is about 26 miles from Bohemia.
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1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 According to Mensch Sr., in order to do the Sachem School Dis-
trict home to school contract, the Company had to employ a total
of 79 drivers, of whom 7 or 8 were reserve drivers who would not
be assigned to any specific route but would be available to fill in
as needed. He testified that the company offered employment to
about 51 former Laidlaw drivers who accepted the jobs. However,
he testified and the record tends to confirm, that prior to the first
day of school, only 45 former Laidlaw employees actually showed
up for work and became employees. The record also shows that
there were 14 former Laidlaw drivers who were designated standby
drivers which meant that they were, in essence, put on a preferential
hiring list and would have been hired in the event of turnover or
if the Company obtained more routes. The record shows that the
Union filed a charge alleging that 23 of the former Laidlaw drivers
had unlawfully been refused employment by Montauk and that the
charge was dismissed.
C. Montauk Wins the Bid
Having won the contract, Montauk attempted to obtain the
property and terminal that Laidlaw had utilized at Bohemia.
However, this property was not made available to Montauk.
As a consequence, Montauk leased a 3-acre site in Holbrook,
which is about 4 miles away from Bohemia and which is on
the border of the Sachem School District. According to John
Mensch Sr., the Holbrook terminal was thereafter used to
service the Sachem School District and all of the drivers at
that location did Sachem school routes. He also testified that
the Company also utilized one of its preexisting yards at
Bellport to service some of the Sachem routes; this yard
being about 8 miles away from Holbrook. In this regard, he
testified that about half of the drivers assigned to the Bellport
yard did Sachem school bus routes and that the others did
routes for other school districts.
According to Mensch, the Holbrook yard had about 50
buses and the Bellport yard had 29 buses. He testified that
for the start of the 1995–1996 school year, the Holbrook ter-
minal employed about 60 drivers and the Bellport yard had
about 30 drivers. Based on the evidence it appears to me that
virtually all of the drivers who reported to work at the Hol-
brook terminal were assigned to work on the Sachem School
District contract. The evidence also indicates that about half
of the drivers who reported to the Bellport terminal were as-
signed to do Sachem School District runs and that the others
were assigned to other routes.
Thus, at the start of the 1995–1996 school year, the Bohe-
mia terminal was no longer being used and the historical bar-
gaining unit had been relocated to 1-1/2 locations. However,
in January 1996, the owner of the property at Bellport re-
fused to release it to Montauk and therefore that terminal
was closed. When that happened, about 15 drivers at Bellport
who were assigned to do Sachem runs were relocated to Hol-
brook and the remainder were reassigned to Calverton. Thus,
by January 1996, the Sachem School District routes were
once again concentrated into a single terminal location where
all or most of the drivers were assigned to do Sachem routes.
For the following year (September 1996–June 1997), another
21 drivers were added to this terminal because Montauk
gained the field trip portion of the Sachem School District
work.
At some point in July or August 1995, Montauk hired
drivers to perform the Sachem routes. The evidence indicates
that of the drivers hired, 45 were formerly employed by
Laidlaw and the remainder were, for the most part, other em-
ployees of the Company who had worked doing routes for
the Eastport School District and who would otherwise have
been laid off because Laidlaw took that contract away from
Montauk. The parties entered into the following stipulation:
Prior to September 9, 1995, Montauk Bus Co., Inc. em-
ployed as a majority of employees to drive school buses
in the Sachem School District, individuals who were
previously employed by Laidlaw Transit, Inc. and who
drove buses for Laidlaw in the Sachem School Dis-
trict.2
On August 1, 1995, the Union sent a letter to the Com-
pany with a copy to the School District complaining that
Montauk was not offering jobs to all of the former Laidlaw
drivers.
On August 29, 1995, the Union sent a letter to the School
District claiming that it was investigating ‘‘influence ped-
dling’’ in connection with Montauk’s bid process and its at-
tempt to extend the contract. Among other things, Boyle re-
quested the School District to notify two finance companies
that Montauk had only a 1-year contract.
On August 30, 1995, Boyle wrote to Mensch Sr. as fol-
lows:
Please be advised that . . . Local 424 is the certified
exclusive bargaining representative of all school bus
drivers performing services in the Sachem School Dis-
trict. As the bargaining representative . . . . Local 424
hereby requests that you contact the undersigned forth-
with to commence negotiations for a collective bargain-
ing agreement covering such employees.
On August 31, 1995, Mensch Sr. responded by stating:
We are in receipt of your letter dated August 30.
. . . Please be advised that unless and until our em-
ployees, . . . select your union as their bargaining rep-
resentative in a unit appropriate for collective bargain-
ing purposes through a secret ballot election, Montauk
. . . will not recognize your union.
Boyle testified that towards the end of August, he had a
telephone conversation with Alan Breslow, one of the Com-
pany’s attorney who said that the Company wanted to have
an election where all 200 plus of the Company’s drivers
would vote. Boyle states that he responded that he was not
interested in representing the Company’s other employees.
On September 5, 1995, the Company’s attorney, Neil
Frank, wrote to Boyle in response to the Union’s August 30
letter and suggested a meeting to discuss a secret-ballot elec-
tion.
Also, on September 5, 1995, Mensch Sr. wrote to Boyle
and complained about Boyle’s attempt to get the superintend-
ent of the Sachem School District to cancel his contract or
not to extend it. Mensch asserted his opinion that the Union
was the servant of, or controlled by Laidlaw.
In the meantime, on August 31 and September 1 and 5,
the drivers performed practice runs for the Sachem School
District in order to test the routes. One of the functions of
these runs was to prepare what are called ‘‘left/right sheets’’
which are, as far as I understand, a series of instructions or
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1133MONTAUK BUS CO.
directions for each route. These are kept on the buses so that
the driver of the bus is certain of how to run the route.
D. The Strike
On September 5, 1995, Boyle conducted a meeting of the
former Laidlaw drivers and a vote was taken to authorize a
strike against Montauk. The schools were to open on Sep-
tember 6.
Notwithstanding the strike vote, all drivers worked from
Wednesday, September 6, through Friday, September 9. The
Company offered evidence to show that during this period of
time, the ‘‘left/right sheets’’ were confiscated from the buses.
The Respondent argues that anticipating that the Company
would hire replacements when the strike began, the former
Laidlaw drivers took these sheets to prevent any replace-
ments from efficiently doing their jobs. In short, the Com-
pany contends that the people who ultimately became strikers
engaged in a form of sabotage. (Assuming that some
unnamed drivers confiscated the left/right sheets, this would
be, in my opinion, a relatively minor form of interference.)
On Monday, September 11, 1995, 43 of the 45 former
Laidlaw drivers who had been hired by Montauk, com-
menced a strike. These strikers picketed outside the Holbrook
and Bellport terminals and at various schools within the Sa-
chem district when the buses were present. The other drivers
employed at these terminals did not strike and two of the
former Laidlaw drivers also did not engage in the strike.
Bruce Singer of the Sachem School District testified that
on September 11, he was told by Boyle that there would be
a strike unless all of the former Laidlaw drivers were hired
by Montauk at their preexisting terms and conditions of em-
ployment. He testified that Boyle asked him to get rid of
Montauk and that Laidlaw would do a better job. On that
same day, Boyle sent Singer a letter asserting among other
things that (1) drivers were required to drive buses that un-
lawfully had license plates that were switched from other
buses; (2) that registration stickers on buses did not match
the plates; (3) defects such as inoperable turning signals have
not been corrected; and (4) that Montauk was fueling the
buses from a mobile truck, creating a seepage hazard. The
letter goes on to state:
Let it be clear, the drivers are engaged in a protected
unfair labor practice strike. If the district wish is to ex-
plain away the abysmal service and total disregard for
safety that the above suggests then so be it. We how-
ever, will not go down that unconscionable path but in-
stead, will continue our necessary action until Montauk
Bus complies with the law and provides safe school
buses for our members and the district’s children.
The Company contends that during the period of the strike
(and thereafter), the Union and the strikers engaged in a
course of conduct which by its nature disqualified the Union
from representing any employees of the Company and dis-
qualified the strikers from reinstatement. (This being in addi-
tion to taking the left/right sheets.)
There was a charge filed by the Employer in Case 29–CB–
9667 in which a complaint was issued on February 13, 1996.
That complaint alleged that the Union violated Section
8(b)(1)(A) by (1) blocking entrances during picket line activ-
ity on September 11, 1995, and (2) by videotaping nonstrik-
ing employees on September 12, 1995. That case was subse-
quently settled.
The Respondent points to a leaflet distributed by the
Union on or about September 11, 1995. Among other things,
this leaflet stated:
Since Wednesday . . . many of you have experi-
enced the worst transportation fiasco in Sachem and
Suffolk County history.
The servicing problems are the result of the district’s
decision to award the 1995/96 transportation contract to
a small company with limited resources and no experi-
ence transporting in a district even close to the size of
our community.
Many of the drivers who have transported Sachem
children . . . were replaced by inexperienced drivers
who, in many cases, have just received their school bus
drivers’ licenses and mandated training. The experi-
enced drivers were unlawfully discharged by the new
contractor in violation of federal law.
On Monday, the . . . drivers . . . [engaged] in a
lawful unfair labor practice strike. The drivers were re-
quired to drive unregistered buses, and complaints of
buses with inoperable equipment went unattended. We
could not allow ourselves to cause harm to ourselves,
our community and your children. We had no choice.
You should know, Montauk Bus was awarded the
Sachem contract despite repeated . . . statements from
drivers and our representatives that the servicing prob-
lems, safety concerns and inexperienced drivers would
be prevalent If the district awarded them the contract.
. . .
What has this $1.00 brought you and your child?
Bus’ that in some cases are unregistered;
Bus’ that have not met the requirements of federal
DOT regulations for registration;
Inexperienced drivers who have been witnessed en-
gaging in unlawful actions;
Drivers from the company’s other districts . . . who
find it necessary to race from one end of Long Island
to the other. . . .
A company that had, as of this Thursday, failed to
equip each bus with an operable radio per the require-
ments of the district;
A company that, of Thursday, has not provided the
district with a list of drivers and has further failed to
provide police records, finger prints, drug testing re-
sults and motor vehicle driving abstracts of each driver
transporting your child to the district.
. . . .
We are on strike and will remain on strike until safe
buses are provided and all drivers guaranteed home-to-
school work by the district are employed by whatever
company many be chosen by the district.
The pamphlet also referred people to a telephone hotline
set up by the Union where a recorded message stated, inter
alia:
The Sachem School District, which continues to re-
port that there are no problems with the transpiration
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1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The letter from Neil Frank to Boyle, dated September 19, states,
inter alia; ‘‘I am writing on behalf of Montauk . . . in response to
your letter . . . which purports to constitute an unconditional offer.’’
provided by Montauk Bus, the district’s new contractor,
have been less than candid with you.
Did you know that the district, as of today, has not
yet received information about the drivers transporting
your children. That’s right—no record of prior criminal
activities, no driving abstracts, no names, no drug tests
results—no nothing.
Ask district officials why are they allowing the new
contractor to get away with this. We ask that you join
with your fellow residents at the Tuesday, September
19 Board meeting at Sachem North.
It is time that the district gave the transportation con-
tract to a reasonable, responsible safe transportation
company.
In addition, to the above, the evidence shows that on or
about September 15, 1995, the Union made specific allega-
tions to the School District that various of the buses were not
in compliance with state law in terms of safety and registra-
tion rules. In this regard, Singer testified that his security
force went out to check the buses to see if the Union’s alle-
gations were true and determined that they were baseless.
E. The Offer to Return to Work and the Employer’s
Failure to Reinstate the Strikers
On September 18, 1995, the Union faxed a letter with a
list of drivers to the Company. A copy was also sent to the
School District. This read:
This shall serve to advise you that the school bus
driver members of . . . . Local 424 currently engaged
in unfair labor practice strike, hereby make an uncondi-
tional offer to return to work immediately.
As the Company, by its attorney responded to the above
by a letter dated September 19, it is more probable than not
that the Union’s letter was received by the Company on the
date of transmission; September 18.3
It was stipulated that since on or about September 18,
1995, the Company has hired new employees and transferred
employees from school districts other than the Sachem
School District, to perform work previously assigned to and
performed by Montauk’s striking employees, in the Sachem
School District. Moreover, while the Company sent what
purported to be a reinstatement offer to the strikers on Sep-
tember 20, 1995, the testimony of both John Mensch Sr. and
John Mensch Jr. shows that the Company, after a meeting
with Boyle, changed its mind and has decided to not recall
any of the strikers. Thus, it is plain to me that the Company
negated the September 20 reinstatement offer and has never
carried it out.
Inasmuch as the strikers were not recalled, the picketing
continued until about the beginning of October 1996. One of
the consequences of the strike was that the Sachem School
District, pursuant to its contract with Montauk, penalized the
Company $150,000 for nonperformance caused by the strike.
John Mensch Jr. testified that when the strike began, the
Company used managerial people and people from other ter-
minals to do the Sachem routes. He also testified that after
consulting with his attorneys, the Company decided to hire
permanent replacements. In this regard, he states that the
Company began advertising in local newspapers on or about
Tuesday, September 12, and began interviewing and ‘‘hir-
ing’’ people later in the week. Mensch Jr. testified that some
of the people (he doesn’t recall who), asked what would hap-
pen to them when the strike was over and he told them that
they would have permanent jobs and not be replaced. He
also told them that they could not go to work until their pa-
pers and licenses were checked out and approved in accord-
ance with state law.
The evidence shows that none of the people who were
interviewed during the week ending September 15, 1995,
began work until Tuesday, September 19, which is 1 day
after the Union faxed the offer to return to work. According
to John Mensch Jr., about 8 to 10 people began work on
September 19, about 10 to 15 started work on September 20
and that more began work on Thursday and Friday of that
week. He testified that additional people started during the
following week and that no more people were hired after the
third week of the strike.
Apart from his testimony that some unidentified persons
were told that they were permanent replacements and that
they would not be replaced after the strike ended, the com-
pany could provide no other specific information to support
its contention that these people were hired with the under-
standing that they were permanent replacements. None of the
people hired were called as witnesses and no personnel or
other records were presented to support this claim.
Quite apart from the employment situation as of Septem-
ber 18, 1995, and immediately thereafter, the evidence shows
that the Company has hired new drivers including a group
of about 21 new people to cover the Sachem field trips that
it acquired for the 1996–1997 school year. None of the strik-
ing drivers were offered these jobs.
III. ANALYSIS
A. The Successorship Issue
The Supreme Court defined ‘‘successorship’’ in Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). In that case, the
Court held that an employer which takes over the operations
of another is required to recognize and bargain with a union
representing the predecessor’s employees when (1) there is a
‘‘substantial continuity’’ of operations after the takeover, and
(2) if a majority of the new employer’s work force, in an ap-
propriate unit, consists of the predecessor’s employees at a
time when the successor has reached a ‘‘substantial and rep-
resentative complement.’’ The Court summarized a number
of factors relevant to determining continuity as follows:
[W]hether the business of both employers is essen-
tially the same; whether the employees of the new com-
pany are doing the same jobs in the same working con-
ditions under the same supervisors; and whether the
new entity has the same production process, produces
the same products and has basically the same body of
customers.
While there are some differences in the way Montauk op-
erates and also differences in the wages and terms and condi-
tions of employment between the two companies, it is self-
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1135MONTAUK BUS CO.
4 Where an employer takes over only a portion of a predecessor’s
operation it may still be considered a successor depending on the to-
tality of circumstances. See Hydrolines, Inc., 305 NLRB 416 (1991);
School Bus Services, 312 NLRB 1 fn. 1 (1993).
5 Generally, a single plant unit is presumptively appropriate, Ken-
dall Co., 184 NLRB 847 (1970); Passavant Health Center, 313
NLRB 1216 (1994); and Executive Resources Associates, 301 NLRB
400 (1991).
6 Of the original 45 former Laidlaw employees hired, 43 went on
strike. Although it is not entirely clear, it is probable that these peo-
ple were assigned to the Holbrook and not the Bellport terminal.
7 Each school district contract, including the Sachem contract, gen-
erally requires the Company to have a group of reserve drivers com-
prising 10 peercent of the regular route drivers assigned to the con-
tract.
evident that both are involved in the same employing indus-
try and that the employees essentially do the same work.
They drive schoolbuses.
In the present case, the unit in question (the drivers at the
Bohemia Yard), had existed for many years. And when the
employees were employed by Laidlaw (the immediate prede-
cessor), they were covered by a separate collective-bargain-
ing agreement wherein they were considered by Laidlaw and
the Union as a separate bargaining unit. Laidlaw’s other ter-
minals in Long Island were covered by other and separate
labor contracts.
When Montauk obtained the bid from the Sachem School
District, Montauk obtained about 90 percent of the work pre-
viously done by Laidlaw’s employees who were physically
located in the Bohemia terminal.4 If it was clear that
Montauk intended to operate this terminal at this particular
location with a work force of busdrivers from which a major-
ity were prior Laidlaw employees, there would be a strong
presumption that this single terminal would be an appropriate
unit5 and that Montauk would be a successor under Fall
River Dyeing, supra. If the terminal had been relocated dur-
ing the life of the contract between Laidlaw and the School
District, the bargaining unit and the contract would simply
follow the relocation. Rock Bottom Stores, 312 NLRB 400
(1993). By the same token, it would seem to me that if the
succeeding company takes over the operations of the termi-
nal, continues to operate in a similar fashion with a com-
plement consisting of a majority of the predecessor’s em-
ployees, then a mere relocation of the facility (either before
or after the takeover), would not undermine the sucessorship
obligation because there would continue to be a presumption
that the Union continues to represent a majority of the work
force in the relocated unit.
The present case has the complication that the Bohemia
terminal, not being made available to Montauk, was not used
by Montauk which, at least initially, split up the Sachem
School District routes into a terminal located in Holbrook
and half of a terminal located in Bellport. But this situation
changed within about 4 to 5 months and the Sachem School
District routes were consolidated into the Holbrook terminal
in or about January 1996. Thus, by that date, the Sachem
routes were essentially carried out by drivers who reported
each day to the Holbrook terminal and who were directly su-
pervised by that terminal’s dispatcher.6
The Respondent contends that the predecessor’s terminal
cannot exist as a separate appropriate unit. It argues that be-
cause of the Company’s centralized control over the business
and its labor relations, the only appropriate unit should con-
sist of all of its terminals and all of its employees in Long
Island. It argues that even if a majority of the work force uti-
lized for the Sachem School District routes consisted of a
majority of the former Laidlaw employees, they would com-
prise a minority of Montauk’s total complement of drivers in
the only appropriate unit which would be a multilocation
unit. I do not agree.
At the beginning of the 1995–1996 school year, Montauk
had four terminals, which were geographically separated and
which serviced routes in proximity to the respective termi-
nals. In January 1996, the Bellport terminal closed and this
left three terminals, with the employees at the Holbrook ter-
minal doing schoolbus routes under the Sachem School Dis-
trict contract.
Each terminal has its own dispatcher who is responsible
for the day-to-day operations of the terminal and who is prin-
cipally in charge of scheduling and rescheduling the runs.
When drivers are unavailable, the dispatcher assigns reserve
drivers to do the routes and rearranges assignments as need-
ed. In this respect, the record, in my opinion shows that there
is substantial authority of local management. See Equitable
Life Assurance Society, 192 NLRB 544 (1971).
The record shows there is some interchange between the
terminals with respect to buses and other equipment and also
among the Company’s mechanics. There is, however, very
little interchange of busdrivers from one terminal to another.
(From time to time, when a terminal, due to illness or other
circumstances runs out of its own reserve drivers, it may use
reserve drivers stationed at another terminal.)7 That is, al-
though the Company advises its drivers that it has the right
to assign them wherever it wants, the fact is that most driv-
ers stick to the terminals and routes to which they are as-
signed and this is not unreasonable because routes are more
efficiently run by drivers who are familiar with their routes.
In my opinion, this lack of substantial interchange of em-
ployees between the terminals is a factor favoring a single
location unit. Rohm & Haas Co., 183 NLRB 147 (1970).
The terminals are geographically separate and the Hol-
brook terminal, which is the unit involved here, is more than
20 miles away from the Company’s Hampton Bays and
Calverton terminals. This too is a factor favoring a single lo-
cation unit. Capital Bakers, 168 NLRB 904, 905 (1968).
It may be (but highly unlikely), that in an initial unit de-
termination, and absent any bargaining history, the Board
might conclude that a multilocation unit would be appro-
priate. But for our purposes, the Board has also made it clear
that it need not determine ‘‘the only appropriate unit, or the
ultimate unit, or the most appropriate unit: the Act requires
only that the unit be appropriate.’’ School Bus Services,
supra. Moreover, in Trident Seafoods, Inc. v. NLRB, 101
F.3d 111, 114 (D.C. Cir. 1996), the court held that in a
sucessorship case, ‘‘there is a strong presumption favoring
the maintenance of historically recognized bargaining units.’’
The court went on to state that the Board ‘‘is reluctant to
disturb units established by collective bargaining so long as
those units are not repugnant to Board policy or so con-
stituted as to hamper employees in fully exercising rights
guaranteed by the Act.’’
In my opinion, the Bohemia collective-bargaining unit
which was the historical bargaining unit governing the rela-
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1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Inasmuch as I have concluded that the Respondent was a succes-
sor having an obligation to bargain with the Union, one wonders
why the complaint does not allege that the strike which commenced
on September 11, was not an unfair labor practice strike. However,
as the complaint labels the strike as an economic strike, I am not
going to find here that it was an unfair labor practice strike.
tionship between the Union and the predecessor companies,
was a single location unit which continued to exist after
Laidlaw won the bid and after the location was moved, first
to Holbrook and a portion of Bellport, and thereafter into a
single location at Holbrook. When Laidlaw commenced oper-
ations on the Sachem School District contract, it did so with
a group of employees, a majority of whom had been for-
merly employed by Laidlaw. Given the presumption that the
Union’s majority status continued after the takeover, I con-
clude that Montauk was a ‘‘successor’’ to Laidlaw in a unit
which eventually comprised the bus drivers who were sta-
tioned at Holbrook, New York. Unlike the allegation of the
complaint which defines the unit by the Sachem School Dis-
trict contract, I find that the unit should be defined by its lo-
cation. After all, assuming that the Company obtained other
contracts which are serviced by busdrivers stationed at Hol-
brook, it would make no sense to have a portion of the driv-
ers at such location represented by the Union and a portion
who would be without representation. Moreover, what would
happen if the Company lost all or part of the Sachem School
District contract and managed to replace it with another con-
tract where the routes were covered by Holbrook’s drivers?
B. The Alleged Conflict of Interest Defense
The Company asserts that the Union’s sole interest was in
ousting Montauk from the Sachem School District contract
and implies that the Union, either as the agent of or in con-
spiracy with Laidlaw, engaged in conduct designed to have
Laidlaw restored as the school bus provider. In support of its
contention, the Respondent relies on Bausch & Lomb Optical
Co., 108 NLRB 1555 (1954); Harlem River Consumers Co-
operative, 191 NLRB 314, 319 (1971); and Pony Express
Courier Corp., 297 NLRB 171 (1989). I do not agree with
the Respondent’s factual or legal conclusions in this regard.
I do not question and I would conclude that the Union ini-
tially was, in fact, trying to get the Sachem School District
to retain Laidlaw and that at a later time it sought to annul
Montauk’s contract. But this hardly represents the type of
conflict of interest outlawed by the Act. It also does not
demonstrate, and there is no independent evidence to dem-
onstrate that the Union was acting either as an agent of or
in conspiracy with Laidlaw.
The Union had an existing collective-bargaining agreement
with Laidlaw which employed the Union’s members at fairly
good rates of pay and benefits. If Laidlaw lost the contract
to Montauk, the Union not only faced the prospect that some
of the employees would lose their jobs, but that their existing
wages and benefits would have to be renegotiated. There
was, therefore, a legitimate and separate union interest in
having the School District retain Laidlaw as the contractor,
or failing that, in trying to ensure that any succeeding con-
tractor would hire all of the employees and assume the terms
of the collective-bargaining agreement. Both of these things,
the Union tried to accomplish before the contract was let out
to bid.
Once the contract was won by Montauk, the Union at-
tempted to contact that company to insure that it would hire
the former employees and retain their existing wages and
benefits. When the Union met with what can only be de-
scribed as a stall, it tried to enlist the School Board to con-
vince Montauk to live up to a promise to hire all of the
Laidlaw employees. These actions also represented a legiti-
mate interest that the Union had in attempting to save jobs
and to have those people hired by Montauk not suffer a loss
of wages or benefits.
During the summer of 1995, it became clear that Montauk
was hiring some but not all of the former employees. It also
became obvious by letters dated July 28 and August 30, that
the Company was not going to recognize and bargain with
the Union until and unless there was an election.
As it was obvious by August 31, 1995, that the Company
was not going to hire all of the former employees; that it was
not going to retain their wage rates and benefits; and that it
was not going to recognize the Union as the collective-bar-
gaining representative, the Union decided, with the approval
of the drivers, to engage in a strike. This is alleged in the
complaint as an economic strike8 and it is clear to me that
the Union, by its strike which ensued thereafter, was seeking
a proper goal consistent with its own and the employees’
self-interest. (As opposed to Laidlaw’s interests.) That the
Union sought, during the course of the strike, to convince the
School Board to cancel Montauk’s contract, does not make
the Union’s strike illegitimate. What is outlawed is only
union actions which are intended to induce individuals em-
ployed by secondary persons to engage in strikes or refusals
to perform their services or actions which threaten, restrain,
or coerce secondary persons with an object of causing them
to cease doing business with the primary employer. (See Sec.
8(b)(4)(i) and (ii)(B) of the Act which prohibits secondary
boycotts.) The point is that it is perfectly permissible under
the law, for a union which is engaged in a primary strike,
to try to convince, by noncoercive means, the Company’s
customers and/or its suppliers to cease doing business with
the primary employer in an effort to put pressure on it to ac-
cede to the Union’s demands.
The cases cited by the Respondent all involve factual situ-
ations which are completely different from the present case.
In Pony Express Courier Corp., supra, the union’s founder
and business agent was also the president of a consulting
company which was a direct competitor of the respondent.
In such circumstances, the Board refused to find that the re-
spondent had violated Section 8(a)(5) of the Act because of
Zimmer’s ‘‘conflict of interest’’ that jeopardized the bargain-
ing process.
In Harlem River Consumers Cooperative, 191 NLRB 314,
319 (1971), the union agent was in a similar situation as that
in Pony Express, supra, and the Board stated:
[I]t is improper for a union agent to have financial in-
terests which requires him to deal with the Employer in
a capacity other than as union agent. The employees he
represents are entitled to his undivided loyalty and the
employer is entitled to know that in his dealings with
the representative of his employees the relationship will
be governed by the legitimate concerns of collective
bargaining and not special concerns unrelated thereto.
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1137MONTAUK BUS CO.
9 In Sahara Datsun, supra, the individual in question made unsub-
stantiated statements to a bank loan manager that the company’s of-
ficials were falsifying information contained in loan applications
from customers. In addition, he accused certain of the owners of
being involved in prostitution and drug trafficking. The Board stated,
inter alia: ‘‘As we have stated there is some times a fine line be-
tween raising highly sensitive issues that relate to terms and condi-
tions of employment and disparaging an employer’s reputation. In
this case, however, we conclude that Darata crossed that line’’
In Bausch & Long Optical Co., 108 NLRB 1555 (1954),
the court agreed with the Board that a union was not entitled
to be the employees’ representative where it had established
a business enterprise in the same locality and industry and
therefore was a direct competitor with the Respondent. The
court stated:
We believe that the Union by becoming the Respond-
ent’s business rival has created a situation which would
drastically change the climate at the bargaining table
from one where there would be reasoned discussion in
a background of balanced bargaining relations upon
which good faith bargaining must rest to one in which,
at best, intensified distrust of the Union’s motives
would be engendered. The Board has held that under
unusual circumstances, a union may, by contempora-
neous action in connection with bargaining, afford an
employer grounds for refusing to bargain so long as
that conduct continues. . . . In our opinion, the Union
involved herein by virtue of its dual capacity has made
fair dealing with the Respondent inherently impossible.
[Citations omitted.]
The Respondent also argues, relying on Sahara Datsun,
278 NLRB 1044 (1986), that Boyle’s ‘‘personal attacks’’ on
the Company should disqualify him from acting as the bar-
gaining representative. In substance, the Respondent argues
that even if it should be required to bargain with the Union,
it should not be required to deal with Boyle who should be
replaced as the Union’s representative. Among other things,
the Respondent cites a portion of a letter where Boyle said,
‘‘[T]he Sachem School District doesn’t need the likes of
Montauk Bus and the belligerent, self-serving arrogance of
the Mensch family.’’ The Respondent also refers to state-
ments by Boyle accusing the company of ‘‘unethical influ-
ence peddling’’ in obtaining the contract and ‘‘engaging in
fraud against various finance companies.’’ This last appar-
ently consisted of some undetermined communications by
Boyle to one or more finance companies.
Whether these opinions by Boyle were well or ill founded,
the law permits a substantial amount of heated rhetoric by
either side in a labor dispute. Linn v. United Plant Guard
Workers Local 113, 383 U.S. 53 (1961) (libel suit dismissed
against Union in the absence of malicious intent in making
false statements). See also Sierra Publishing Co. v. NLRB,
889 F.2d 210 (9th Cir. 1989).
Legally, the people involved in a collective-bargaining re-
lationship are required to toughen their skins and to deal with
the representatives designated by the other side except in
such extraordinary circumstances which would justify the
conclusion that good-faith bargaining would not likely be
possible. And in the present case, I don’t believe that Boyle’s
conduct or statements rise to the level described in Sahara
Datsun, supra.9
C. The Refusal to Reinstate Strikers
Assuming that the strike was an economic strike, and put-
ting aside for the moment, the Respondent’s contention that
it was an unprotected strike, if the strikers or the Union on
their behalf made an unconditional offer to return to work,
the Employer would have an obligation to immediately rein-
state the strikers, except to the extent that it hired permanent
replacements. NLRB v. Mackay Radio & Telegraph Co., 304
F.2d 333, 345–346 (1938); NLRB v. Fleetwood Trailer Co.,
389 U.S. 375 (1967); NLRB v. Augusta Bakery Corp., 957
F.2d 1467 (7th Cir. 1992); and Laidlaw Corp., 171 NLRB
1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). As stated
by the Board in Laidlaw, supra.
[E]conomic strikers who unconditionally apply for rein-
statement at a time when there positions are filled by
permanent replacements: (1) remain employees; and (2)
are entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired
regular and substantially equivalent employment, or the
employer can sustain his burden of proof that the fail-
ure to offer full reinstatement was for legitimate and
substantial business reasons.
The Employer contends that it hired permanent replace-
ments before the Union made its offer to return to work.
John Mensch Jr. testified that immediately after the strike
began, the Company put advertisements in local papers and
started to interview and hire people on Thursday, September
14. He testified that some of the people (he does not recall
who), asked what would happen to them when the strike was
over and he told them that they would have permanent jobs
and not be replaced. He also told them that they could not
go to work until their papers and licenses were checked out
and approved in accordance with state law. None of these
people began to work for the Company until September 19,
which is 1 day after the Union faxed its offer to return to
work. It appears that additional people were interviewed and
offered jobs at various times thereafter.
Assuming that Mensch Jr. did in fact offer, before Septem-
ber 18, permanent jobs to applicants which were accepted
and which were conditioned only on their licenses and papers
being approved, those hirings would be valid for purposes of
this case. Thus, in Solar Turbine, 302 NLRB 14 (1991), the
Board in a 2 to 1 decision held that the hiring of permanent
replacements took place when they accepted the jobs even
though the jobs were contingent on the applicants passing
drug and alcohol tests. Therefore, in the present case, if some
permanent replacements were hired before the Company re-
ceived the Union’s offer to return, there would be an equal
number of strikers who would not be entitled to immediate
reinstatement. Of course, to the extent that ‘‘permanent re-
placements’’ were hired after September 18, an equal number
of strikers would be entitled to reinstatement and backpay.
For example, if 10 permanent replacements were hired before
September 18 and 33 hired after that date, then 10 strikers
would not have been entitled to immediate reinstatement as
of September 19, but 33 would have been. Moreover, if at
some future time, permanent replacements left the Company
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1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In my opinion, the Respondent’s reliance on Kenai Helicopters,
235 NLRB 931 (1978), is not controlling. In that case, two employ-
ees used the circumstances of a strike by their fellow employees to
further their own personnel interests by trying to get the company’s
customers to shift work to a company that the two were going to
join. In that circumstance, the Board held that the employer did not
violate the Act when it discharged these two people.
or as in this case, the Company hired additional drivers, the
remaining 10 strikers would be entitled to reinstatement and
the Company’s failure to reinstate them would make it liable
to these people for reinstatement and backpay from the time
that any of the strikers could have been reinstated but were
not.
Where replacements are hired for striking employees, the
Board has held that the presumption is that replacements are
temporary and that the burden of proof is on the employer
to show that the replacements are permanent. Hansen Bros.
Enterprises, 279 NLRB 741 (1986); O. E. Butterfield, Inc.,
319 NLRB 1004 (1995).
In my opinion, the Respondent has not met its burden. The
testimony of the Employer’s witnesses was largely conclu-
sory and lacked weight. Mensch Jr. testified that some of the
people who applied for the replacement jobs asked about
what would happen to them if the strike ended and he testi-
fied that he told some of them that the jobs were permanent.
He could not tell us to whom those promises were made or
at what point in the hiring process (which took place over
2 to 3 weeks), they occurred. There is nothing in writing to
corroborate this testimony and the Employer did not offer the
testimony of any of the replacement drivers to verify that
they were offered and accepted permanent positions.
It is noted that the Union sent its offer to return to work
on September 18 and the Company’s attorneys responded by
letter dated September 19. Although the Respondent’s letter
questioned whether certain people were ever actually hired,
it did not assert that any of the strikers had been permanently
replaced. On the contrary, the letter states that the strikers
would be recalled with the understanding that their wages
and benefits would be in accordance with company policy
and that they could be assigned to drive at any locality.
Thus, if the Company had hired permanent replacements, this
was a fact apparently not known to its attorneys. Moreover,
on September 20, the Company sent letters to the strikers in-
forming them that they would be recalled. Nothing in these
letters indicate that the Company was at that time, taking the
position that any of the strikers were precluded from imme-
diate reinstatement on account of being permanently re-
placed. For better or worse, it appears that the Employer de-
cided not to take the advise of its counsel and decided not
to reinstate any of the strikers notwithstanding the letters of
September 19 and 20.
The Respondent argues that the strike was not protected
activity and therefore the strikers were not entitled to rein-
statement because (1) the Union had a conflict of interest in
its attempt to get the School District to cancel the contract
and (2) the Union disparaged the Company’s product.
I have already discussed the Employer’s conflict of interest
argument and have concluded that the Union engaged in a
strike to promote a legitimate interest of its own and of the
strikers. There no evidence of the type of conflict of interest
that the Board has found in other cases.10
The Company argues that the Union, essentially by letters
to the School Board, by a leaflet distributed to parents and
by the hotline, publicly disparaged the Company’s owners
and its product. It also asserts that on some occasion, Boyle
contacted Universal Bonding Company in an effort to get
that company to refuse to furnish a bond to Montauk, with-
out which, it would not be able to perform the Sachem
School District contract. But in the latter regard, there is no
affirmative evidence of what Boyle said and as the Respond-
ent did not produce a witness from Universal, its assertions
are mere speculation.
The facts show that the Union would have preferred to
have Laidlaw retain the contract with the Sachem School
District no doubt because it had a collective-bargaining
agreement with that company. During the course of the bid-
ding process, the Union made its position clear and clearly
tried to persuade the School District to not consider Montauk
as a qualified bidder. However, this was to no avail and after
the School District awarded a contract to Montauk, and after
it became clear that Montauk had no intention of hiring all
of the former employees or of either assuming the old collec-
tive-bargaining agreement or recognizing the Union, Boyle
stepped up his campaign to persuade the School District that
Montauk could not be relied upon to perform the services for
which it contracted. This too was to no avail.
I have reviewed the letters sent by Boyle, the leaflet and
the hot line to which parents were requested to call. Among
other things, Boyle questioned the qualifications of the re-
placement drivers on the grounds that there had not been suf-
ficient time to do background checks on them. He, at one
point, intimated that the Company was using undue influence
to get an extension of the contract and in one letter, he char-
acterized the Mensch family as being ‘‘belligerent’’ and ‘‘ar-
rogant.’’
When you add all this up (including the disappearance of
the left/right sheets), it seems to me that the kinds of state-
ments made by Boyle are not untypical of the kinds of rhet-
oric that is often used in the context of labor disputes. More-
over, I do not think that the Union’s conduct (as opposed to
individual striker’s misconduct), could be construed as rising
to a level which would make the strikers lose the protection
of the Act. For one thing, it was Boyle and not the striking
employees who made the statements and I do not believe that
their reinstatement rights are, or should be affected by the
publications of a union representative. For another, I just do
not think that the statements were all that extreme as to argu-
ably fall within the scope of unprotected conduct as defined
in NLRB v. Local 1229 Electrical Workers (Jefferson Stand-
ard Broadcasting Co.), 346 U.S. 464 (1953). Thus, in Allied
Aviation Service of New Jersey, 246 NLRB 229 (1980), the
Board rejected the employer’s defense that the discharge of
a union shop steward was warranted because that employee
had sent letters asserting that the employer performed serv-
ices at the airport in a hazardous and unsafe manner. The
Board stated:
In determining whether an employee’s communica-
tion to a third party constitutes disparagement of the
employer or its product, great care must be taken to
distinguish between disparagement and the airing of
what may be highly sensitive issues. There is no ques-
tion Respondent here would be sensitive to its employ-
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1139MONTAUK BUS CO.
11 Payroll records for the pay date of September 15, 1995, were
received into evidence as R. Exh. 27. The names of the employees
who engaged in the strike are marked at the left of their names.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ees regarding safety matters with its airline customers.
Yet, we have previously held that, ‘‘absent a malicious
motive, [an employee’s] right to appeal to the public is
not dependent on the sensitivity or Respondent to his
choice of forum.’’
For other cases on this same issue see Emarco, Inc., 284
NLRB 832 (1987) (disparaging statements about company
officials made by employees who were discharged); Blue
Circle Cement Co., 311 NLRB 623, 634–625 (1993), enfd.
41 F.3d 203, 211 (5th Cir. 1994) (statement by discharged
employee which accused employer of burning hazardous
waste and endangering public safety); Sacramento Bee, 291
NLRB 540, 545 (1988), enfd. 889 F.2d 210, 218–219 (9th
Cir. 1989); and Richboro Community Mental Health Council,
242 NLRB 1267, 1268 (1979).
Based on the above, I conclude that the Employer violated
the Act when it failed and refused to reinstate the strikers on
whose behalf the Union offered to return to work on Septem-
ber 18, 1995.
CONCLUSIONS OF LAW
1. By refusing to recognize and bargain with United Indus-
try Workers Local 424, a Division of United Industry Work-
ers District Council 424 in the unit described below, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
2. By refusing to reinstate employees who engaged in a
strike upon their unconditional offer to return to work, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
3. By the aforesaid conduct, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(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.
As the evidence shows that the Respondent illegally re-
fused to reinstate the strikers, it must offer them reinstate-
ment and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date
of such refusal, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
If there is any legitimate issue as to the identify of the em-
ployees who engaged in the strike, that can be left for resolu-
tion at the compliance stage of the proceeding.11
Further, as the evidence establishes the Respondent is a
successor to the preceding contractor, it is concluded that it
must recognize and bargain with the Union in the unit de-
scribed below.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Montauk Bus Company, Holbrook, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to reinstate economic strikers to existing va-
cancies upon their unconditional offer to return to work.
(b) Refusing to recognize and bargain with United Indus-
try Workers Local 424, a Division of United Industry Work-
ers District Council 424 as the collective-bargaining rep-
resentative in an appropriate unit.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed to them
by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Upon application, offer to those strikers who have not
yet returned, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing if
necessary all persons hired as striker replacements after Sep-
tember 18, 1995.
(b) Make whole any of the strikers for any loss of earnings
and other benefits suffered as a result of the refusal to rein-
state them to their former jobs in the manner described in
the remedy section of this decision.
(c) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All school bus drivers employed by the Employer, per-
forming services at the Employer’s Holbrook terminal
or to any relocation thereof and excluding all dispatch-
ers, mechanics, office clerical employees, guards and
supervisors as defined in the Act.
(c) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, 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
facility in Holbrook, New York, copies of the attached notice
marked ‘‘Appendix.’’13 Copies of the notice, on forms pro-
vided 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 in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
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1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 7, 1995.
(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 the 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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to reinstate economic strikers to ex-
isting vacancies upon their unconditional offer to return to
work.
WE WILL NOT refuse to recognize and bargain with United
Industry Workers Local 424, a Division of United Industry
Workers District Council 424.
WE WILL NOT in any like or related manner restraining or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL upon application, offer to those strikers who
have not yet returned, immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dis-
missing if necessary, all persons hired as striker replacements
and place on a preferential hiring list those striker applicants
for whom positions are not immediately available.
WE WILL make whole any of the strikers for any loss of
earnings and other benefits suffered as a result of, and to the
extent that we have illegally refused to reinstate them to their
former jobs.
WE WILL on request, bargain with the Union as the exclu-
sive representative of the employees in the following appro-
priate unit, concerning terms and conditions of employment
and, if an understanding is reached, embody the understand-
ing in a signed agreement:
All school bus drivers employed by us, performing
services at our Holbrook terminal or to any relocation
thereof and excluding all dispatchers, mechanics, office
clerical employees, guards and supervisors as defined in
the Act.
MONTAUK BUS COMPANY
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