MV Public Transportation, Inc

National Labor Relations Board - Administrative Judge Opinions

Jun 7, 2010

29-CA-029530 (N.L.R.B. Jun. 7, 2010)

JD–34–10
Staten Island, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MV PUBLIC TRANSPORTATION, INC.
and Case 29–CA–29530
29–CA–29760
JOHN D. RUSSELL, AN INDIVIDUAL
and Case 29–CA–29544
LOCAL 1181-1061, AMALGAMATED TRANSIT
UNION, AFL–CIO
and
ERIC BAUMWOLL, AN INDIVIDUAL Case 29–CA–29619
and
LOCAL 707, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, Party to the Contract
and Case 29–CB–13981
JOHN D. RUSSELL, AN INDIVIDUAL
Nancy Lipin, Esq., for the General Counsel.
H. Tor Christensen, Esq. (Littler Mendelson P.C.), of Washington, D.C.,
for the Respondent MV Public Transportation, Inc.
George Kirschenbaum, Esq. (Cary Kane, LLP), of New York, New York,
for the Respondent Local 707, International Brotherhood of Teamsters.
Richard Brook, Esq. (Meyer, Suozzi, English & Klein, P.C.), of New York,
New York, for the Charging Party Local 1181-1061 Amalgamated Transit
Union, AFL–CIO.
DECISION
Statement of the Case
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Brooklyn, New
York, on December 8–11, 16–17, 2009, and January 19, 2010. The charge in Cases 29–CA–
29530 and 29–CB–13981 were filed March 31, 2009, the charge in Case 29–CA–29760 was
filed August 7, 2009, the charge and first amended charge in Case 29–CA–29544 were filed on
JD–34–10
5
10
15
20
25
30
35
40
45
50
2
April 9 and June 9, 2009, respectively, and the charge in Case 29–CA–29619 was filed on May
22, 2009. The complaint issued September 30, 2009.1
The complaint alleges that MV Public Transportation, Inc. (the Company) violated
Section 8(a)(1), (2), and (3) as follows: (1) on or about September 12, 2008, by granting
recognition to Respondent Local 707, International Brotherhood of Teamsters (Local 707) as the
exclusive collective-bargaining representative of all drivers employed by the Company at its
Staten Island, New York facilities; (2) on or about October 20, 2008, by conditioning
employment on employees agreeing to sign authorization cards on behalf of Local 707; (3) on or
about December 12, 2008, by entering into, and since then maintaining and enforcing, a
collective-bargaining agreement, which includes union-security and checkoff provisions, with
Local 707 on behalf of the Company’s drivers, mechanics, and utility workers. The complaint
also alleges complicity on the part of Local 707, who violated Section 8(b)(1)(A) and 8(b)(2) by
accepting such recognition at a time when the Company did not employ a representative
segment of the ultimate employee complement and was not yet engaged in its normal
operations of providing paratransit services, and then entering into, maintaining, and enforcing
the aforementioned collective-bargaining agreement.
The complaint further alleges that the Company violated Section 8(a)(1) as follows:
(1) in or around February by threatening employees with job loss unless they signed a dues
checkoff on behalf of Local 707; (2) by engaging in surveillance of employees’ union activities;
(2) directing employees who signed authorization cards for another union to return those cards;
(3) threatening employees with reprisals because of their activities on behalf of another union;
(4) spat at employees who were engaged in activities supporting another union; and, on or
about April 30, by directing employees not to speak about Local 1181 at its facility and
threatening them with discharge if they disobeyed that directive.
The Company and Local 707 deny the material allegations in the complaint. In addition,
the Company contends that the claim is time-barred pursuant to Section 10(b) because the
recognition agreement was signed on September 12 and the charge was not filed until
March 31.
In a bizarre twist of events, the Company’s general manager responded to the General
Counsel’s subpoena duces tecum (B-562546) for the Company’s payroll records by producing a
summary of its database information and then disavowing its accuracy.2 The General Counsel
responded with another subpoena duces tecum requesting additional documents to clarify the
extent of the Company’s work force during the term of the Contract. I partially granted the
Company’s petition to revoke, but required it to produce the union dues remittance form and
Form I-9 (Department of Homeland Security, Employment Eligibility Verification) for every
employee reflected in the payroll information produced.3 Forms I-9 would have been reliable
records, within a 3-day period, as to employee hire dates. The applicable period was from the
commencement of operations through July 31.4 The Company produced the remittance forms,
but refused to produce the Forms I-9, citing unspecified problems or complications if it did—

1 Unless otherwise indicated, all dates refer to the period between August 2008 and July
2009.
2 The credibility of Quinto Rapacioli, the Company’s general manager and the person upon
whom the subpoena was served, was necessarily diminished as a result of his production of
summary payroll information and then disavowing it as inaccurate. (Tr. 349–350, 447, 475–477.)
3 ALJ Exhs. 1–4; GC Exhs. 30–32.
4 Tr. 488, 492.
JD–34–10
5
10
15
20
25
30
35
40
45
50
3
even after I assured the Company that such documents would be placed under seal. The
General Counsel then requested an adjournment in order to seek enforcement of the subpoena
in United States district court. I denied that request in light of the availability of alternative
procedural remedies, including sanctions pursuant to Banyon Mills Inc., 146 NLRB 611, 613
(1964). See also McAllister Brothers, Inc., 341 NLRB 394, 396 (2004).5 The General Counsel
moved for such sanctions and I grant her application in the following respects: the payroll
information produced is deemed accurate as to hiring dates, hours worked, job classifications,
and all other information contained therein, except where reliable evidence indicates otherwise;
and, to the extent that any such information is uncertain, an inference will be drawn in favor of
the General Counsel.
On the entire record,6 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Company and Local 1181, I make
the following
Findings of Fact
I. Jurisdiction
The Company, a corporation, a domestic corporation with its principal office and place of
business in Staten Island, New York, has been engaged in providing paratransit services within
New York, New York, where it annually derives gross annual revenues in excess of $250,000,
and purchases and receives at its Staten Island facilities good and materials valued in excess of
$5000 directly from suppliers located outside the State of New York. The Company admits and I
find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that Locals 707 and 1181 are labor organizations within the meaning of Section
2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Company’s Operations
Based in Fairfield, California, the Company is the largest provider of paratransit services
in the United States.7 Since 2001, the Company has provided paratransit services in Brooklyn,
New York, for the New York City Transit Authority (Transit Authority). That operation has grown
to encompass 310 routes daily with 251 vehicles and 450 transit professionals.8 Since August
2008, the Company has also provided paratransit services to passengers in Staten Island
pursuant to a Transit Authority contract.9
The Company’s general manager is Quinto Rapacioli. During the relevant period of time,
John Duncan served as operations manager and Ronald McElhose10 was employed as a
driving instructor. All acted as the Company’s statutory supervisors and/or agents.

5 Tr. 775.
6 The General Counsel’s unopposed motion to correct the transcript, dated April 1, 2010, is
granted and received in evidence as GC Exh. 37.
7 GC Exh. 23.
8 GC Exh. 23.
9 GC Exh. 20.
10 McElhose was referred to in the testimony by his nickname, “Mack.”
JD–34–10
5
10
15
20
25
30
35
40
45
50
4
In late August, the Company began training drivers for its Staten Island operations at
125 Lake Avenue (Lake Avenue facility). Shortly thereafter, it opened offices at 900 South
Avenue (South Avenue facility). From September through the spring of 2009, the Company
utilized a trailer located at 40 LaSalle Street (LaSalle Street facility) to house a drivers’ room,
dispatch room, and maintenance area. The Company’s vehicles were parked in a yard outside
this trailer. After drivers completed training, they reported to work each day at the 40 LaSalle
Street facility. In the spring of 2009, the Company moved its entire operation to a larger facility
at 1957 Richmond Terrace.
B. The Company’s Bid for the Staten Island Access-A-Ride Contract
In 2007, the Transit Authority sought bids from paratransit providers to provide “Access-
A-Ride Paratransit Transportation Service” in Staten Island, New York. The Company and other
companies bid for the work, including the incumbent service provider, RJR Paratransit. The
Company’s bid stated, in pertinent part:
[The Company] is proposing to operate 300 vehicles for the Access-A-Ride Service. Our
proposed facilities are sufficient to accommodate this size for a fleet, however, we do not
expect to start at this level of service.
[The Company] is proposing to start with an approximate 150 vehicle fleet for this
project. Our startup plan shows that we can be fully operation [sic] with this starting fleet
in approximately three months and we could begin partial operations even earlier.
Once we have stabilized the startup operations, we would then look to start expanding
the operation. We believe that a 50 vehicle per year expansion will allow us to add the
additional service on the street without impacting existing operations. It is critical that the
passengers are only positively affected as the expansions are taking place. This
expansion plan offers ample time to proper hiring and training, thus ensuring a safe,
quality operation.
This expansion plan closely mirrors the [Transit Authority’s] expected growth in the
Access-A-Ride service over the next few years. By following this plan, [the Company]
would be at the full 300 vehicle operation limit in a three to four year period.11
The Company’s proposal included a price summary for the initial 150 vehicles and the
expansion of 150 more for a total estimated first year amount of $21,525,085.12 The vehicles
were to be serviced and stored at the Company’s Lake Avenue facility and operated by 237
drivers. The Company also represented that the Lake Avenue facility was capable of supporting
such a fleet.13
C. The Company Is Awarded Contract and Prepares to Operate
By letter, dated August 29, the Transit Authority congratulated the Company on its award
for a contract to provide Access-A-Ride services in Staten Island and mentioned transitional
issues affecting the employees of incumbent carriers:

11 GC Exh. 21(a) at 48.
12 GC Exh. 36 at pp-2 and pp-8.
13 GC Exh. 21(a) at 48, 57.
JD–34–10
5
10
15
20
25
30
35
40
45
50
5
As you may be aware, some incumbent carriers are not receiving an award at this time.
Employees of these carriers may approach you requesting a position in your
organization. We encourage your taking advantage of available and experienced
personnel who are dedicated to Access-A-Ride service. We request that you keep in
mind that while you are mobilizing and ramping up, New York City Transit will be relying
on the on-street service provided by those carriers ramping down. To that end, any
transfer of employees must be addressed and handled in an organized and manageable
fashion. As such, NYC Transit will work closely with you and help coordinate such
transfers so as not to adversely affect the overall program. You, as a carrier, are
required to keep NYC Transit informed of the staff you will be hiring. Operator hires must
be reviewed by the Standards and Compliance (S&C) Transportation Section.
Maintenance personnel hires must be reviewed by the S&C Maintenance Section. All
managerial and support staff hires should be reviewed by your assigned NYC Transit
Contract Manager.14
On September 5, the Transit Authority formally accepted the Company’s bid and
awarded it Contract No. 07H9751 for Access-A-Ride Paratransit Transportation Service (the
Contract). The Transit Authority’s acceptance was explicitly based on the Company’s best and
final offer (BAFO) for the “total estimated” amount of $422,066,234.00. It was final and not
conditioned upon any other developments.15 The Contract terms, consistent with the
Company’s proposal, included a 10-year term for the operation of 150 vehicles, with an
expansion to 300 vehicles. The vehicles were to be leased to the Company by the Transit
Authority.16 Specifically, the Contract’s “Vehicle Start Up/Expansion Schedule” required the
Company to field 15 vehicles by October 20, and an additional 20 vehicles for each of the next 3
months. Therefore, by January 20, 2009, the Company would have been required to have 75
vehicles in operation. Thereafter, the Contract Schedule required the operation of an additional
10 vehicles per month until 150 vehicles were reached. At such a rate, 150 vehicles would be in
operation by September 2009. Once it attained an operational level of 15 vehicles, the
Company was required to field an additional 10 vehicles per month until 300 were in
operation.17
By letter, dated September 22, Michael Cosgrove, the Transit Authority’s representative,
advised Rapacioli that the Transit Authority expected the Company to "maintain the ramp up
commitment” in its proposal.18 Rapacioli responded immediately by submitting a "ramp-up" chart
containing the schedule for vehicles in service and total drivers: October 1—11 vehicles, 10
drivers; October 13—11 vehicles, 16 drivers; October 20—15 vehicles, 29 drivers; November
17—35 vehicles, 70 drivers; December 22—55 vehicles, 109 drivers; January 19, 2009—75
vehicles, 148 drivers; February 16, 2009—85 vehicles, 168 drivers; March 16, 2009—95
vehicles, 188 drivers; April 13, 2009—105, 208 drivers; May 11, 2009—115 vehicles, 228

14 CP Exh. 2.
15 The Company attempted to inject uncertainty as to the award based on letters to a local
newspaper urging support for the prior service provider. (R. Exh. 3, p. 2.) However, there was
no credible evidence even suggesting that the notice of award/notice to proceed issued by the
Transit Authority, the local governmental agency charged with administering the Contract, was
anything other than final. (GC Exhs. 20, 22.)
16 GC Exh. 20, Scope of Work, Attachment 1 at 10.
17 GC Exh. 20, Attachment 30.
18 GC Exh. 27.
JD–34–10
5
10
15
20
25
30
35
40
45
50
6
drivers; June 15, 2009—125 vehicles, 248 drivers; July 13, 2009—135 vehicles, 267 drivers;
and August 10, 2009—135 vehicles, 267 drivers.19
D. Start-Up Hiring, Training, and the Recognition
Following award of the Contract, the Company immediately hired driver trainees as
required by the Contract. The first group of 22 trainees commenced the 3–4 week long training
course on August 28. The initial part of the course consisted of at least two weeks and two days
of classroom instruction at the Lake Avenue facility. Around the middle to latter part of
September – but after September 12 – the trainees reported to the LaSalle Street facility for
driving instruction.20 Upon successful completion of the course and certification by the Transit
Authority, trainees were eligible to operate a Company vehicle.21 However, there is a high
turnover and not all trainees completed the course. Of the 22 trainees in the first class, only 11
were certified as drivers.22 By September 26, 42 driver trainees were on the payroll. By that
time, however, four of the employees hired prior to September 12 were no longer employed.23
Pursuant to a September 29 email directive from the Transit Authority, the Company
commenced operations by operating eight routes with 11 vehicles on October 1.24 On October
6, the Company publicly announced its successful start under the Contract in a press release,
which stated, in pertinent part:25
MV Public Transportation, Inc. – chosen by the New York Metropolitan
Transit Authority to manage and operate paratransit services for Staten

19 Although Rapacioli did not clarify the specific categories listed on the chart, it appears that
the number of drivers needed to operate included an additional amount of relief drivers. (Tr.
345.) With respect to the number of vehicles projected, I relied on the information for vehicles in
service, rather than vehicles assigned, since the latter statistic is a more reliable indicator of
actual operations. (GC Exh. 28.)
20 Neither Rapacioli nor current employee Stephen Rebracca provided specific dates as to
when the classroom portion ended and the driving portion began. However, Rapacioli explained
that the driving portion would have commenced no sooner than 2 weeks and 2 days after the
classroom instruction began. (Tr. 399.). Rebracca testified that he did not report to the LaSalle
Street facility for the driving portion of the course until the third or fourth week in September. (Tr.
207, 212.) Based on such testimony, it is clear that employees were not yet engaged in the
driving portion of the training course as of September 12.
21 The job code for drivers was denoted as “610” on the first set of payroll records, but
changed to job code “T156610” by the check date of September 26. (GC Exh. 31; Tr. 352.)
22 I based this finding on the testimony of current employee Stephen Rebracca and
Rapacioli, as the dates of hire reflected in the Company’s payroll records appeared to lag
behind the documented hiring dates. (Tr. 206–210, 399–401, 456–457; GC Exh. 31, Div.
156(8)–(9).) Notwithstanding my aforementioned ruling to draw adverse inferences against the
Company regarding the payroll records, the General Counsel and Charging Party did not
request that I rely on the payroll record of indicating a work force of 18 driver trainees as of
September 12 and assumed, for purposes of their legal arguments, that there were 22 driver
trainees in the first class. (GC Brief 28, 47-48; CP Brief 3.)
23 Christopher Dotts, Anthony Giambrone, Anthony Miceli, and Alexander Peter.
24 Rapacioli referred to different starting dates, October 1 and 5, but the former appears
more compatible with the evidence received. (GC Exhs. 23, 25; Tr. 320, 452.)
25 GC Exh. 23.
JD–34–10
5
10
15
20
25
30
35
40
45
50
7
Island – has successfully begun operation of the Access-A-Ride paratransit services in
the borough.
In less than 30 days from contract signing, MV placed a strong team in position, and
transitioned into the service. Under the terms of the 10-year contract, MV began
providing service on October 1 with 11 vehicles on eight routes.
The company has operated paratransit services with the MTA since 2001, and currently
has a local office in Brooklyn. The initial contract award includes a doubling of the
vehicles used to provide service – from 150 to 300.
The payroll records reveal an escalation in operations after October 1 consistent with the
Company’s proposal.26 By October 10, 79 drivers were on the payroll, including 55 of which
were operating routes by October 12. However, two more employees hired prior to September
12 were no longer employed and another was working as a dispatcher.27 By October 24, 97
drivers were on the payroll. However, one employee hired prior to September 12 was no longer
employed.28 By November 7, 125 drivers were on the payroll. However, another employee hired
prior to September 12 was no longer employed.29 By November 21, 119 drivers were on the
payroll. However, another employee hired prior to September 12 was no longer employed.30 By
December 5, 133 drivers were on the payroll. By December 19, 144 drivers and 12 mechanics
were on the payroll, 139 of which were working by December 12. By then, only 6 of the
employees hired prior to September 12 were still employed. By January 2, 2009, 164 drivers
and 13 mechanics were on the payroll. By January 16, 188 drivers and 15 mechanics were on
the payroll. At that point, the Company was operating at least 160 shifts.31
After January 2009, the total number of drivers and mechanics hired each payroll period
continued to grow significantly, as follows: January 31: 238 (248 drivers, 18 mechanics);
February 28: 279 (252 drivers, 26 mechanics); March 31: 261 (235 drivers, 26 mechanics); April
30: 264 (237 drivers, 27 mechanics); May 31: 269 (240 drivers, 29 mechanics); June 30: 278
(249 drivers, 29 mechanics); July 31: 298 (269 drivers, 29 mechanics); August 31: 286 (257
drivers, 29 mechanics); September 30: 298 (266 drivers, 29 mechanics); October 31: 307 (279
drivers, 28 mechanics); and November 30: 309 (280 drivers, 29 mechanics).32
The number of vehicles assigned by the Transit Authority to the Company between
September 2008 and November 2009, generally reflected the work force in place at the time
and the initial projections by the Company—roughly one vehicle for every two drivers:
September 2008: 12; October 2008: 22; November 2008: 40; December 2008: 77; January
2009: 89; February 2009: 101; March 2009; 111; April 2009: 119; May 2009: 124; June 2009:
124; July 2009: 125; August 2009: 129; September 2009: 129; October 2009: 129; November
2009: 131; and December 11, 2009: 124.33

26 GC Exh. 31.
27 Robert Meisels, Margaret Hicks, and Jamelia Alleyne.
28 Anthony King.
29 Elizabeth Kelley.
30 Arlene Crupi.
31 GC Exh. 4.
32 GC Exhs. 31–32.
33 Rapacioli testified that the Transit Authority did not adhere to the schedule for vehicle
service as set forth in Attachment 30 to the Contract. (Tr. 403, 411-412.) However, the
Company’s records confirm that the schedule was generally met. (GC Exhs. 24, 28.)
JD–34–10
5
10
15
20
25
30
35
40
45
50
8
E. The Company’s Agreement With Local 707
On August 28, the Company and Local 707 executed a "Card Check and Neutrality
agreement for Staten Island, New York" (card-check agreement). Essentially, that agreement
required the Company to recognize Local 707 upon a showing that a majority of employees had
signed authorization cards or a petition. The applicable employees consisted of "[a]ll full-time
and regular part-time drivers in Staten Island, NY, excluding warehouse employees, mechanics
and similar maintenance employees office clerical employees, managerial employees, guards,
and supervisors as defined by the National Labor Relations Act.” An arbitrator from the Federal
Mediation and Conciliation Service was required to certify the showing of interest. The Company
further agreed to maintain a neutral position as to whether employees were to be represented
by Local 707. In exchange, the latter agreed to refrain from negative campaigning against the
Company.34
That same day, as employees arrived for training at the Lake Avenue facility, they were
met by Local 707’s business representative, Danny Pacheco, and several other union officials.
The Local 707 representatives solicited membership in Local 707, handed union authorization
cards to the employees, suggested they speak among themselves and asked them to return the
cards signed if they agreed.35
By letter, dated September 8, Local 707's president, Kevin McCaffrey, informed the
Company that it believed that it had "majority status" and requested verification pursuant to the
card-check agreement.36 On September 11, Local 707 presented arbitrator Elliot Shriftman with
20 signed authorization cards from among the Company’s 22 employees in the unit of drivers
employed during the payroll period ending September 13.37 In response, Shriftman certified that
Local 707 "was designated by a majority of the Company’s employees in the unit as their
exclusive bargaining representative for purposes of collective bargaining" (the certification).38
The appropriate bargaining unit (the Unit) was defined as follows:
All full-time and regular part-time drivers in Staten Island, NY, but excluding warehouse
employees, mechanics and similar maintenance employees, office clerical employees,
managerial employees, guards and supervisors as defined by the National Labor
Relations Act.
Following the certification, on September 12, the Company and Local 707 entered into a
recognition agreement recognizing the latter as the exclusive collective-bargaining

34 Jt. Exh. 1.
35 Rapacioli and Rebracca provided consistent testimony regarding these events. (Tr. 207–
209, 417.) The payroll records, however, appeared to lag behind the actual starting date for
training since it is not disputed that Rebracca began attending training classes on August 28,
although the September 12 payroll record indicates that he was hired on September 5. In fact,
that record shows only one employee, Christopher Dotts, hired on August 29, while the rest
were formally hired between September 2 and 8. (GC Exh. 31, Div. 156(9).)
36 GC Exh. 19.
37 As noted at fn. 22, although the payroll records indicate that there were 18 driver trainees
on the payroll as of September 12, the General Counsel and Charging Party assumed, for
purposes of their legal arguments, that the number of cards presented to the arbitrator of
September 12 equaled the number of driver trainees on the payroll on that date.
38 GC Exh. 8(b).
JD–34–10
5
10
15
20
25
30
35
40
45
50
9
representative of the Company’s full-time and regular part-time drivers in Staten Island, but
excluding warehouse employees, mechanics and similar maintenance employees, office clerical
employees, managerial employees, guards and supervisors as defined in the [Act]." The
Company and Local 707 also agreed to “meet promptly and engage in good-faith negotiations
concerning the terms of a Collective-Bargaining Agreement governing the wages, hours and
other terms of employment of the employees in the appropriate bargaining unit.”39 At this point
in time, however, all of the Company’s employees were trainees and none had attained the
employment status of driver.
The process of obtaining signed union authorization cards brought the issue of labor
representation to the attention of most, if not all, of the employees in the first training class.
However, they were not kept abreast of subsequent developments by either the Company or
Local 707, since neither the certification nor recognition agreement were posted in the drivers’
room at the LaSalle Street facility in September.40 Even if those documents had been posted on
the bulletin board or walls in the small drivers’ room there, they would not have been reasonably
visible in September to employees, such as Stephen Rebracca, who was hired on September
5.41 The bulletin board, as well as the other walls in the driver’s room, “was out of control.”

39 Jt. Exh. 2.
40 This finding is based on my determination that Company employees Stephen Rebracca,
Eric Baumwoll, and John Russell (Tr. 88–90; 143–144; 206, 215–216) were more credible than
Rapacioli, Pacheco, Ranieri, and Osman on this point (Russell did not start work until October
20.) In untangling the conflicting and vague testimony, it was evident that the drivers’ room was
cluttered with papers posted all over. Rapacioli was unsure of the date, but speculated that he
posted the certification and a handwritten note on either September 18 or 20, but contradicted
that assertion with an estimate that he posted them in "late, late September.” (Tr. 420–421.)
Pacheco testified that he posted the certification after the September 12 recognition agreement
was entered into, but failed to provide the names of persons with whom he spoke. That
assertion also appears to conflict with Local 707’s August 4, 2009 position statement that it
posted a September 18 docket letter from Region 29 in the drivers' room, but omitted reference
to the posting of any other documents. (Tr. 388, 548–549, 573; GC Exhs. 8(b), 13, 34.) Ranieri’s
testimony was vague and inconsistent, and he was impeached after initially denying having
provided a pretrial written statement. (Tr. 518–519, 524–528.) Moreover, the testimony of
Osman, an extremely evasive witness who initially invoked her Fifth Amendment privilege
against self-incrimination before agreeing to be cross-examined by the General Counsel, was
completely devoid of credibility. Thus, I do not credit her assertions as to when she first spoke
with Pacheco about Local 707 representation or saw notices posted in the drivers’ room. Her
direct examination appeared overly scripted, especially with respect to specific dates, and it was
evident that her relevant testimony—that she saw the certification, recognition agreement, and
Dana notice all posted in the drivers’ room on September 18, 2008—was based solely on Local
707’s counsel having shown her the Regional Director’s letter with that date a year later. (Local
707, Exh. 1.) Only after the parties agreed to permit Osman to consult with Local 707 counsel
did she agree to be cross-examined. She looked continuously at Pacheco after answering
questions, sometimes grinning. (Tr. 584–587, 593–598, 608–610, 614–619, 625, 631–632.)
Lastly, Russell, whose testimony I found consistent and credible, testified that Osman admitted
to him that she was offered a raise and more hours for testifying on behalf of the Company. (Tr.
726, 729–731.)
41 Rebracca, a current employee subpoenaed by the General Counsel and the trial’s most
credible witness, provided spontaneous and consistent testimony. (Tr. 214–215.)
JD–34–10
5
10
15
20
25
30
35
40
45
50
10
Employees used the room to post “their own stuff,” dispatchers posted “driver's notices and
trips” and “there was paper all over the place.”42
By letter, dated September 15, Local 707’s counsel notified the Board’s Region 29 that
his client was “voluntarily recognized” by the Company, enclosed a copy of the recognition
agreement executed by the Company and Local 707, and requested that Region 29 “provide the
necessary Notices so that the Employer may post the Notice of Voluntary Recognition as
quickly as possible.”43 Pacheco received a response from Region 29 on September 20, but did
not post that communication in the drivers’ room during September.44
On October 2, the Company was notified by Region 29 that it needed to post a Dana
notice.45 On October 5, Rapacioli posted them in the driver’s room at the LaSalle facility.46 In
addition, the Company’s employees began learning about Local 707’s representative status
during training classes beginning on October 6, as training instructor McElhose began to
introduce Pacheco to new trainees as their union representative. Employees were then directed
to sign authorization cards on behalf of Local 707 and return them immediately. In response to
questions as to why the cards needed to be filled out, supervisors explained that they were a
condition of employment.47 Rapacioli made such statements to a new class of trainees on
October 20. During other classes, including the one on November 10, McElhose did the
introduction, informed the trainees that they were required to return the completed authorization
cards and collected them on behalf of Local 707.48
On December 11, the Company’s employees ratified a collective-bargaining agreement.
The collective-bargaining agreement contains union security and checkoff provisions in Article
3, Sections 3.2 and 3.3, respectively. On December 12, the Company entered into a collective-
bargaining agreement with Local 707 as the exclusive collective-bargaining representative of
the Company’s employees in the following modified contract unit:

42 The collective testimony of Rapacioli, Pacheco, and Ranieri confirmed that the drivers’
room walls, including the bulletin board, were covered with many postings. Rapacioli described
the situation as “out of control.” As such, it was evident that any papers posted in that room
were soon covered or lost amidst a virtual paper jungle and, thus, not reasonably visible to
drivers entering that room. (Tr. 421, 462–463, 518–519, 547, 571, 573; GC Exh. 8(b).)
43 GC Exh. 35.
44 I base this finding on the same reasons stated in fn. 40.
45 Dana notices are workplace notices provided by the Board notifying employees of their
right to file a decertification petition within a 45-day window period, pursuant to the Board’s
decision in Dana Corp., 351 NLRB 434 (2007).
46 As to this particular posting, I found Rapacioli’s certainty and spontaneity in describing his
response to Region 29’s directive that he post the Dana notice more credible than the General
Counsel’s witnesses who did not recall seeing that notice. (Tr. 422-423; R Exh. 8.) Moreover,
Rebracca testified that he heard about this development from other drivers in early November,
which is consistent with the notice having been posted in October. (Tr. 215.)
47 Pacheco did not refute the credible testimony of current driver Nilda Muniz regarding the
events of October 6. However, I did not, however, credit her testimony that Pacheco
misrepresented the purpose of the authorization cards, since she conceded being told that
employees were represented by Local 707. (Tr. 228–231, 238; GC Exh. 15.)
48 McElhose was not called as a witness and Rapacioli did not refute the credible and fairly
consistent testimony of Russell, Baumwoll and current driver Sal Prestia regarding those
introductions. (Tr. 81–85, 140–142, 243, 249; GC Exh. 16.)
JD–34–10
5
10
15
20
25
30
35
40
45
50
11
All full-time, part-time and casual drivers, mechanics and utility workers working
under any Contract between the Company and New York City Transit Authority,
excluding office clerical employees, mechanics, utility workers, professional employees,
road supervisors, dispatchers, guards and supervisors as defined in the Act.49
About 2 weeks after execution of the collective-bargaining agreement, the Company’s
dispatchers distributed packets to drivers and mechanics. The packets included a letter from
Rapacioli, dated December 22, Local 707’s union application, a dues-checkoff form, and union
benefits package. The letter stated that the materials were distributed at Local 707’s request
and instructed drivers to return the completed forms to the dispatcher.50
By letter, dated December 27, Rapacioli informed drivers that, beginning January 12,
2009, they would be able to select routes, effective January 17.51 On or before January 12, the
Company posted a notice near the door to the driver's room at the LaSalle Street facility.52 It
stated:
All Employees You must sign the union application in order to pick. Signing is a condition
of employment. If you have any questions, contact your union rep or Quinto.
Respectfully, John Duncan.53
John Russell was hired by the Company as a driver-trainee on October 20 and remains
employed as a driver. He saw the posting in the LaSalle Street facility and asked Duncan, with
clear indignation, why employees needed to sign the Local 707 forms. Duncan responded that it
was a condition of his employment, since he needed to sign the forms in order to select a route
and, if he was not able to select a route, he could be terminated. Russell then took a picture of
the notice with his cell phone. Later that day, dispatchers began handing out the union
applications and dues-checkoff forms, and they were also placed on a table in the drivers’ room
for employees to pick up and fill out.54

49 A handwritten notation on Jt. Exh. 1 indicates that the titles "mechanics and utility
workers" should be "removed" from the excluded. The unit set forth in the collective-bargaining
agreement is not the same unit which Arbitrator Shriftman certified on September 11,2008,
which included only drivers in Staten Island, nor is it the same unit referenced in the Dana
notice forwarded to Respondent MV by Region 29 on October 2, 2008.
50 Rapacioli did not refute Russell’s testimony as to the distribution of the union packets.
(GC Exhs. 3, 23; Tr. 90.)
51 GC Exh. 4.
52 I base this finding on the credible testimony of Russell, Rebracca, Prestia and Muniz. (Tr.
93–98, 216, 234–235, 247–248.)
53 GC Exhs. 5–6.
54 The credible testimony of Russell, Rebracca, Prestia, and Muniz regarding the posting of
these notices and the employee directives was not refuted by Rapacioli. (Tr. 94–96, 216–217,
234–235, 239, 246–249; GC Exh. 5–7.) Osman and Vincent Smaldone, another driver shop
steward for Local 707, testified that they did not see the notice posted in the drivers’ room. (Tr.
586, 644–645.) I found neither credible, as both failed to observe a notice that Rapacioli did not
dispute posting and distributing, yet testified that they observed the earlier postings in
September and October. (Tr. 584–586, 643–645; GC Exhs. 8(b) and 13.) Moreover, Smalldone
conceded that he was prepared to testify in the presence of Rapacioli, Pacheco, Osman, and
Local 707’s counsel. (Tr. 655–656, 658.) Osman omitted any reference to that encounter and
testified that she was prepared to testify at work while in the presence of Pacheco. (Tr. 593–
594.) Moreover, as previously stated, she was not a credible witness.
JD–34–10
5
10
15
20
25
30
35
40
45
50
12
F. Employees Engage in Activity on Behalf of Another Labor Organization
Eric Baumwoll was hired by the Company as a driver-trainee on October 15. However,
he was reassigned to a clerical position and never served as a driver. Baumwoll was terminated
on December 22.55 During late January to early February 2009, Baumwoll and Russell solicited
support for Local 726, International Union of Journeymen and Allied Trades (Local 726) near the
LaSalle Street facility.56 They distributed authorization cards and flyers on behalf of Local 726
and asked employees, as they arrived to or left from work, to return them signed. On one of
those occasions, Baumwoll spoke with and obtained a signed authorization card from another
driver, Susan Santopaolo, as she left the trailer. Their interaction was observed by Rapacioli,
who got out of his vehicle and photographed the encounter. He intercepted her as she was
getting in her vehicle and instructed her to retrieve the authorization card. Santopaolo complied,
went to retrieve the card and handed it to Rapacioli. Rapacioli immediately tore up the card and
approached Baumwoll, cursed and spit at him, vaguely threatened his family and threatened to
call the police. Russell observed the entire incident involving Santopaolo, including Rapacioli
ripping up the authorization card, but did not observe Rapacioli’s subsequent interaction with
Baumwoll.57
G. Rapacioli Threatens Russell with Discharge
At the end of April 2009, Russell went to the South Avenue facility to get a new
identification card. While in the facility, he entered a classroom of trainees while they were on a
break and expressed his support for Local 1181. The instructor was not present at the time.
Russell returned the next day and received a note instructing him to see Rapacioli. After his
shift, Russell went to see Rapacioli in his office. In a profanity-laced tirade expressing disdain
for Local 1181, Rapacioli warned Russell that
I don't want to hear you ever . . . talking about that union in my building again. If I hear
you talking about that in the building again I'm going to fire you. And tell [Local 1181
officials] from Brooklyn to [do something else with themselves]. This is my company.58

55 GC Exh. 31, Div. 156(12).
56 GC Exh. 2.
57 I based this finding on the versions provided by Russell and Baumwoll. Neither provided a
specific date as to when the Santpaolo incident occurred, except to state that it occurred
between late January and early February 2009. (GC Exh. 2; Tr. 101–108, 128–130, 144–147,
149–150, 159–162.) Moreover, there was controversy over Baumwoll’s separation from the
Company and Rapacioli’s vague contention that Baumwoll served as a spy for another
organization while employed by the Company. Nevertheless, Rapacioli essentially conceded
that the incident occurred. He testified that he observed Baumwoll hand an authorization card to
Santpaolo outside the LaSalle Street facility, and then he spoke with Santpaolo and yelled at
Baumwoll. I found it less than credible that an employee, who did not testify, would simply
approach Rapacioli and express concern that she did something wrong. (Tr. 436–437.) I did not,
however, credit vague and undated references by Russell and Baumwoll to other incidents
involving Rapacioli.
58 The testimony of Russell, Rapacioli and Training Manager Clarence Smith establishes
that Rapacioli met with Russell concerning his classroom solicitation. (Tr. 110–112, 464–465,
732–733.) Rapacioli denied, however, speaking to Russell about unions and insisted he simply
told him he would fire him if he ever disrupted a class again. (Tr. 443.) Yet, he conceded that
Russell did not disrupt a class, as the instructor was not present, and that he mentioned
Continued
JD–34–10
5
10
15
20
25
30
35
40
45
50
13
III. Legal Analysis
A. The Unlawful Recognition Charges
The complaint alleges that the Company violated Section 8(a)(1), (2), and (3) of the Act
and Local 707 violated Section 8(b)(1)(A) and 8(b)(2) by entering into a recognition agreement
at a time when Local 707 did not employ a representative segment of its ultimate employee
complement and was not yet engaged in its normal business operations, and then entering into
and maintaining a collective bargaining agreement. The Company and Local 707 denied the
allegations and assert that the complaint is barred by the statute of limitations set forth at
Section 10(b) of the Act.
“An employer violates Section 8(a)(2) of the Act when it extends recognition to a union
that does not represent an uncoerced majority of employees.” Garner/Morrison, 353 NLRB No.
78, slip op. at 6 (2009) (citing Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961));
Dedicated Services, 352 NLRB 753, 761 (2008). Further, by entering into, maintaining, and
enforcing a collective-bargaining agreement containing a union-security clause at a time when
such a union did not represent an uncoerced majority of employees, the employer violates
Section 8(a)(3) of the Act. Duane Reade Inc., 338 NLRB 943, 944 (2003), enfd. 99 Fed. Appx.
240 (D.C. Cir. 2004). Similarly, by accepting unlawful assistance from an employer, a union
violates Section 8(b)(1)(A) of the Act, Ladies Garment Workers, supra. Furthermore, by entering
into, maintaining, and enforcing a collective-bargaining agreement with a union-security clause
at a time when it does not did not represent an uncoerced majority of employees, the union
violates Section 8(b)(2) of the Act as well, Dairyland USA Corp., 347 NLRB 310 (2006), enfd.
273 Fed. Appx. 40 (2d Cir. 2008); Duane Reade, supra.
In determining whether an employer prematurely recognized a labor organization, the
Board applies a two-part test: (1) the employer must employ a substantial and representative
complement of its projected work force, that is, the job or job classifications designated for the
operation must be substantially filled; and (2) the employer must be engaged in normal business
operations. This approach was first articulated in Hilton Inn Albany, 270 NLRB 1364, 1365
(1984) and reaffirmed in Elmhurst Care Center, 345 NLRB 1176, 1177–1178 (2005), which
explained the balancing act involved in such situations: “The Board's overall goal is to
accommodate the right of employees who have already been hired to representation without
undue delay to the right of employees yet to be hired to have their bargaining representative
selected by a substantial and representative complement of employees engaged in the
employer's normal business operations.”
1. The employee work force at the time of the recognition
The General Counsel contends that the 22 drivers employed at the time of recognition
were neither substantial nor representative of the “the ultimate projected employee
complement.” The Company’s proposed schedule, which was incorporated into the Contract,
was expected to reach an operational level of 150 vehicles by approximately September 2009.
The General Counsel, however, relies on the fact that the Company was operating 124 vehicles
and employed approximately 309 employees as of December 2009. Applying the 30 percent
threshold applied by the Board in General Extrusion, 121 NLRB 1165 (1958), the General
Counsel contends that a substantial and representative amount would be approximately 92
_________________________
Russell’s statements to the trainees about changing union representation. (Tr. 444.)
JD–34–10
5
10
15
20
25
30
35
40
45
50
14
employees—an employment level reached in mid to late October 2008. Alternatively, the
General Counsel notes that, even based on the Company’s “ramp-up” chart projecting 267
drivers for 150 vehicles, a representative complement would be 80 drivers—an employment
level reached after October 2.59 The Company contends that it employed a representative
complement of its projected work force at the time of recognition because it had “no guarantee,
and could have no certainty, that its employee complement would expand significantly beyond
the size at the time of recognition.”60
The Board has frequently relied on General Extrusion Co., 121 NLRB at 1167, for
guidance in determining, in an expanding unit situation, whether the Company employed a
substantial and representative complement of its projected work force as of the date of the
recognition. In that case, the Board held that the minimum workforce threshold was met where
“at least 30 percent of the complement employed at the time of the hearing had been employed
at the time the contract was executed, and 50 percent of the job classifications in existence at
the time of the hearing where in existence at the time the contract was executed.” See, for
example, Dedicated Services, 352 NLRB at 762, where the Board found that the employer did
not meet the threshold where, at the time of recognition, it “employed far fewer than 30 percent
of its normal complement of unit employees.” In Hilton Inn Albany, 270 NLRB at 1366, on the
other hand, the judge found that the employer had not employed a substantial and
representative complement even though it had hired 33–35 percent of the full work force and 55
percent of the classifications. The judge found that only a small percentage of these employees
had performed any work and few had worked more than 8 hours. The Board agreed with the
judge and noted that a mere 8 to 15 percent of those employees performed any work or worked
for more than 8 hours.
The Company and Local 707 entered into a recognition agreement on September 12.
Based on an arbitrator’s certification of authorization cards, the parties assumed, for the
purpose of legal argument, that there were 22 drivers on the payroll as of that date. That level of
work force amounted to a mere 7.9 percent of the 280 drivers on the payroll as of the date of the
hearing. Moreover, no mechanics has been hired by that point and, thus, the other classification
ultimately incorporated into the collective bargaining agreement was not yet in existence.
Alternatively, the 22 drivers constituted 8.2 percent of the 267 drivers that the Company was
expected to ramp-up to within 10 months.61 Both approaches fall far short of the General
Extrusion threshold of 80 to 84 drivers that would have been considered a substantial and
representative portion of the projected work force.62
Lastly, the Company’s assertion that it was still uncertain on September 12 as to the
amount of employees it would be hiring is belied by the terms of the Transit Authority’s
acceptance on September 5 of the Company’s bid and award of a $422,066,234.00 10-year
contract to operate 150 vehicles, with an expansion to 300 vehicles. The Start Up/Expansion

59 GC Br. 48.
60 R. Br. 14.
61 The Board typically applies such an analysis based on the work force amount as of the
date of the hearing. However, hearings occur anywhere from several months to years after
accrual, while the facts in this case include actual benchmarks as of the date of the unlawful
recognition by which the initial ramp-up to approximately 150 vehicles would be achieved by
September 2009.
62 Utilizing the 18 employees listed on the payroll record, that work force amounted to 6.4%
of the 280 drivers on the payroll as of the date of the hearing and 6.7% of those on the payroll
within the 10 month ramp-up period.
JD–34–10
5
10
15
20
25
30
35
40
45
50
15
Schedule set forth a specific schedule that would rise incrementally to an initial operational level
of 150 vehicles by September 2009. Although several pleas of support for the prior Staten
Island service provider appeared in the local media, there is no credible evidence casting doubt
as to the finality of the notice of award/notice to proceed issued by the Transit Authority.
2. Whether the Company was engaged in normal business operations
The General Counsel and Local 1181 also assert that the Company was not engaged in
its normal business operations when it recognized Local 707 because, at the time, unit
employees were engaged only in training activities. Applying Elmhurst Care Center, Hilton Inn
and Albany Dedicated Services, they contend that the Company’s normal business operations
consist of driving disabled and elderly clients to appointments within New York City. The
Company cites Klein’s Golden Manor, 214 NLRB 807 (1974), for the proposition that “essential
training and preparation constitutes normal business operations.”63
The second prong of the Elmhurst Care Center test is premised on the notion that
“employees are better able to register their electoral choice when they are actually engaged in
the work for which representation is sought.” As such, the Board found that an employer is not
engaged in “normal business operations” when the place of employment is not open to the
public, employees are “working relatively few hours” and employees’ responsibilities are “limited
to training and other tasks in preparation for receiving” customers. 345 NLRB at 1177.
In Elmhurst Care Center, supra, the employer, a skilled nursing facility operator, and the
union executed a collective-bargaining agreement nearly a month before the first patient was
admitted to the facility. The nursing staff was participating in training and other preparations to
set up the facility to receive patients, such as making beds and setting up equipment. The Board
determined that the employer was not engaged in normal business operations at the time the
employer voluntarily recognized the union. While the Board admitted that “training may be
essential to the operation of the business, . . . it is not the business itself.” The Board balanced
the “interests of the first group of employees hired but not yet performing the duties for which
they were employed and the interests of the anticipated full complement of unit employees.”
“[W]aiting to grant recognition until the facility had opened would have increased the number of
unit employees participating in the decision regarding representation while having minimal
impact on those employed earlier.” Id. at 1178.
Similarly, in Hilton Inn Albany, 270 NLRB at 1366, the Board found that the employer’s
hotel was not in its normal business operations at the time of the voluntary recognition. The
hotel was not yet open to the public and the only work being done was the training of cooks and
kitchen personnel, and performance of housekeeping duties. By the date of recognition, several
categories of hotel workers, including waiters, bus boys and maintenance employees, had not
worked at all. The Board also noted that the “size of the employee complement actually working
and the number of hours worked increased so rapidly immediately following recognition” that the
employer was not engaged in normal business operations, nor had it engaged in full-scale
training in preparation for the opening.
Under a different set of facts, the Company’s reliance on Klein’s Golden Manor, 214
NLRB 807 (1974) might have merit. In that case, the Board deemed the recognition lawful, even
though the employer was still training its workforce, since the employees “were actually
performing preparatory services for the employer that were necessary for the operation of that

63 R. Br. 15.
JD–34–10
5
10
15
20
25
30
35
40
45
50
16
facility.” Id. at 813–814. As noted by the dissent in Elmhurst Care Center, “the training work in
Klein’s Golden Manor–-in preparation for the facilities opening–-was essentially the same as the
work after it opened its doors to patients” and the majority erroneously distinguished that earlier
case because, “[i]n both cases, there were no patients at the time of recognition and the
employees were engaged essentially in the same type of work before and after opening day.”
Applying the legal principles articulated in Klein’s Golden Manor and the dissent in
Elmhurst Care Center, the training involved at the Company’s facility on September 12 was not
the same type of work that employees would perform after operations commenced on or around
October 1. The type of work that the drivers would perform after October 1 consisted of
operating vehicles to transport elderly and disabled passengers in or around Staten Island. On
the date that the Company and Local 707 entered into the recognition agreement, however,
employees were still in classroom training at the Lake Avenue facility and had not yet received
training operating vehicles at the LaSalle Street facility. This nuance is particularly important
where, as here, half (11 of 22) of those who began classroom instruction would not successfully
complete the rigorous training course.
Based on the foregoing, the Company’s recognition of Local 707 as the labor
representative of its employees, and the collective-bargaining agreement that ensued, at a time
when the Company did not employ a representative segment of its ultimate employee
complement and was not yet engaged in its normal business operations, violated Section
8(a)(2) and (1) of the Act. Having received unlawful assistance from the Company, Local 707
violated Section 8(b)(1)(A) and 8(b)(2). Dairyland USA Corp., supra.
B. The 10(b) Defense
Notwithstanding the aforementioned violation, the Company contends that Russell’s
unlawful recognition and assistance charges are untimely under Section 10(b) of the Act
because they accrued on September 12—the date of recognition—but were not filed until March
31, more than 6 months later. Relying on Local Lodge No. 1424 (Bryan Manufacturing) v.
NLRB, 362 U.S. 411, NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000),
Texas World Serv. Co. v. NLRB, 928 F.2d 1426 (5th Cir. 1991), and R.J.E. Leasing Corp., 262
NLRB 373(1982), the Company insists that the 10(b) period commenced to run when any
employee received notice of the September 12 recognition agreement, not every time an
individual employee learned of the potential claim. The General Counsel, relying on Dedicated
Services, supra, contends that the 10(b) period was triggered on October 20 when Russell
commenced employment and learned of the recognition. Alternatively, the General Counsel
suggests that the time period commences when: (1) other employees received clear and
unequivocal notice of a violation, which could have occurred no earlier than October 2, or (2) a
representative portion of the ultimate employee complement was hired. The Charging Party’s
alternative theory essentially suggests that the Dana notice, which was premised on unlawful
conduct and indicated that a charge could not be filed more than 45 days after it was posted,
was misleading and should be deemed tolled from the date of posting, October 5, until
November 20.
It is undisputed that, on August 28, the Company and the Union executed a card-check
and neutrality agreement requiring the Company to recognize the Union as the bargaining
representative for unit employees upon a showing of majority status. On September 12, after an
arbitrator certified that a majority of the 22 unit employees signed authorization cards for Local
707, the Company and Local 707 entered into a recognition agreement. The Company posted
the Dana notices on the bulletin board in the drivers’ room on October 5. On October 20,
Russell began working for the Company and attended his first training class, during which he
JD–34–10
5
10
15
20
25
30
35
40
45
50
17
learned that the Company recognized Local 707 as the bargaining representative for unit
employees.
Section 10(b) of the Act states, in pertinent part, that “no complaint shall be issued
based upon any unfair labor practice occurring more than 6 months prior to the filing of the
charge with the Board.” However, this limitations period “does not begin to run until the charging
party has ‘clear and unequivocal notice,’ either actual or constructive, of a violation of the Act.”
St. Barnabas Medical Center, 343 NLRB 1125, 1126 (2004), quoting Leach Corp., 312 NLRB
990, 991 (1993). Even if the charging party lacks actual notice of an unlawful recognition,
Section 10(b) will still bar a claim outside the statutory period if the charging party had
constructive notice of the recognition. Schaefer Group, Inc., 344 NLRB 366, 367–368 (2005)
(party charged with constructive knowledge of unfair labor practice where it could have
discovered the alleged misconduct through the exercise of reasonable diligence). On the other
hand, “an unfair labor practice charge will not be time-barred if the “delay in filing is a
consequence of conflicting signals or otherwise ambiguous conduct by the other party.” A & L
Underground, 302 NLRB 467, 469 (1991). Moreover, the party raising Section 10(b) as a
defense has the burden of proving that the complaint is time-barred. Broadway Volkswagen,
342 NLRB 1244, 1246 (2004).
As the charge was not filed until March 31, a straightforward application of the 6-month
time limitation would bar any claims that accrued prior to September 30. The first obstacle for
the Section 10(b) defense is that neither the Company nor Local 707 provided notice of their
September 12 recognition agreement to employees during September. Based on the credible
testimony, the notices were not posted on the bulletin board in the drivers’ room during that
month. Even if they had been, they would not have been reasonably observable, as the bulletin
board and room walls were out of control with papers hanging all over. The lack of a clear notice
posting in September negates application of Section 10(b).
Assuming, arguendo, that employees did learn of the recognition in September, the
issue becomes whether the Company can meet its burden of demonstrating that the 10(b)
period began running on September 12 or the day that the first employee learned of the
recognition. The cases cited by the Company support the concept that the limitations period
begins to run when a party first learns of an unfair labor practice. They are, however,
distinguishable. In Bryan Manufacturing, 362 U.S. at 419, the Supreme Court held that charges
were time-barred where employees filed charges more than 6 months after execution of the
allegedly unlawful collective bargaining agreement. It premised its ruling, however, on a
rejection of employees’ assertions that ongoing enforcement of the agreement was a continuing
violation. In this case, such a concept appears to rule out the Charging Party’s tolling theory
based on a continuously defective and misleading Dana notice. It is, however, the posting of the
Dana notice on October 5 or Russell’s hiring on October 20 that are alleged by the General
Counsel as the accrual dates.
NLRB v. Triple C Maintenance, Inc., supra, involved an employer’s attempt, 3 years after
the fact, to escape from an agreement it entered into with the union. In that case, the Court of
Appeals agreed with the Board’s interpretation of the agreement as one within the meaning of
Section 9(a), rather than Section 8(f), and its preclusion of the employer from challenging the
validity of the agreement based on the Section 10(b) limitations. 219 F.3d at 1159. Unlike that
employer, who had notice of a potential claim for the 3 year period at issue, the Company’s
employees in this case were unaware of the recognition agreement until October 5 at the
earliest and, in Russell’s case, until October 20.
JD–34–10
5
10
15
20
25
30
35
40
45
50
18
In Texas World Service Co. v. NLRB, supra, the Court of Appeals rejected an employer’s
10(b) defense, which invoked Bryan Manufacturing’s proscription against resurrecting an earlier,
otherwise time-barred unfair labor practice. The court premised its ruling on the fact that the
unlawful recognition of a union occurred at a time when the employer had not yet hired
employees and no one could have challenged the agreement. The Board’s affirmance of the
judge’s ruling in R.J.E. Leasing Corp., supra, is consistent with that result. In that case, the
judge rejected a Section 10(b) defense to a prehire agreement on the ground that employees
first became aware of the disputed agreement well within the 6-months limitation period. 262
NLRB at 381-382. Here, again, the Company’s employees in this case were unaware of the
recognition agreement until October 5 at the earliest.
Dedicated Services, Inc., supra, the primary case cited by the General Counsel and
Charging Parties, is distinguishable, but provides guidance. In that case, Local 1181 filed a
charge alleging that the employer rendered unlawful assistance to Local 713 and entered into a
collective-bargaining agreement with Local 713 at a time when Local 713 did not represent an
uncoerced majority of employees in the bargaining unit, the employer did not employ a
representative complement of employees and was not engaged in its normal operations. At the
time of the recognition, the employer had not yet hired any employees. More than 6 months
later, Local 1181 filed its charge. The employer claimed that Local 1181, which already
represented the employees, had constructive notice of the recognition within the 10(b) period
because four job applicants were given union authorization cards and told that Local 713
represented the company’s employees. Judge Fish disagreed, holding that knowledge of
possibly unlawful acts on the part of any employees was not attributable to Local 1181, which
was otherwise unaware of the recognition agreement between the employer and Local 713. He
concluded that Local 1181 lacked clear and unequivocal notice outside the statutory period and
rejected the untimeliness defense. 352 NLRB at 760.
The Board agreed with Judge Fish that the employer violated Section 8(a)(2)
and (1) by recognizing Local 713 as the exclusive collective-bargaining representative of the
employer’s employees at a time when Local 713 had not obtained any signed authorization
cards from employees and, thus, did not represent a majority of the employer’s employees.
However, the Board sidestepped Judge Fish’s cogent analysis of alternative accrual theories
raised by the General Counsel, including the notion that a later date might be more appropriate
for an accretion analysis.
One possible implication of the Board’s avoidance of the 10(b) issues raised in
Dedicated Services, Inc. is that the Act’s limitations provision was tolled as to any future
charging party until it acquired clear and unequivocal notice of the unlawful recognition. Relying
on that concept, however, would be perilous since Judge Fish found, and the Board agreed, that
notice to employee/members of the union did not constitute notice to the union. In this case, on
the other hand, we are dealing with a never-ending potential supply of charging parties in a
continuously growing work force. Russell learned of the recognition agreement when he was
hired on October 20. He filed his charge on March 31, well within the 6-month period thereafter.
The 199 days that elapsed from the date of the recognition agreement (September 12) to the
filing of Russell’s charge (March 31) was not significantly greater than the 188 days that elapsed
during the same period in Dedicated Services, Inc.
A reasonable approach in this case is found in Leach Corp., 312 NLRB 990 (1993). That
case, which involved a charge for alleged contract repudiation, sheds light on the Board’s
application of Section 10(b) in situations involving the earliest stages of work force creation.
Recognizing that an employer would be obligated to recognize the union representing relocated
employees only if the relocated employees constituted a substantial percentage of the new
JD–34–10
5
10
15
20
25
30
35
40
45
50
19
employee compliment, the Board held that Section 10(b) would start running on the date when
the transfer process was substantially completed. Accordingly, the Board rejected the
employer’s contention that the limitations period began to run when the first employees were
hired, holding that unit employees could not have suspected that the recognition was unlawful
until a representative segment of the ultimate employee complement was hired. In our case, it
can be argued that, while the Company knew to the extent to which it would hire, there is no
proof that employees had similar knowledge as of September 12.
Applying the principles of Leach Corp. to the facts here, it is probably a stretch to
suggest tolling the statute of limitations until the work force was essentially complete – in this
case, by September or October 2009. A more reasonable approach balancing the interests of
employees seeking to organize and the proscription against representation based upon union
recognition by an unrepresentative minority would deem accrual as of the date when the
company hired a representative segment of the ultimate complement. Applying the General
Extrusion threshold, a representative segment would have been approximately 84 employees
(280 x 30%). Such a point was not reached until later in October 2008 when the Company
recorded a payroll of over 90 employees.64 Russell, the Charging Party, was hired around that
time—on October 20—and obtained notice of the Company’s recognition agreement with the
Local 707 on that date. There is certainly no evidence that he obtained knowledge before then.
Assuming, arguendo, that the limitations period was not revived on October 20, when
Russell was hired and learned of the recognition agreement, an appropriate earlier accrual date
would be on or after October 5, when employees learned of Local 707’s representative status.
Under that scenario, the latest a charge would need to be filed to escape the bar of the 10(b)
limitation would be April 5. Since Russell filed his charge on March 31, and the Company
received notice of the charge on April 2, the charge was timely filed. Based on the foregoing, the
dismissal pursuant to Section 10(b) is denied.
C. Coercing Employees to Sign Authorization Cards and Dues-Checkoff Forms
An employer violates Section 8(a)(1), (2), and (3) of the Act when it requires employees
to sign union authorization cards as a condition of employment at a time when there is no lawful
union-security clause in effect. It is also a violation of Section 8(a)(2) of the Act to require
employees to sign a checkoff card even where a valid union-security clause exists. Dedicated
Services, Inc., 352 NLRB at 760.
On October 20, the Company directed its employees to sign authorization cards on
behalf of Local 707. Rapacioli introduced Pacheco, Local 707’s representative, to the trainees,
authorization cards were passed out and they were directed to sign the cards as a condition of
their employment. Although there was credible evidence that the Company supervisors exerted
the same pressure on October 6 and November 10, the pleadings were not conformed to such
evidence at trial. Accordingly, I do not incorporate them into my conclusions of law.
Additionally, in a letter, dated December 22, Rapacioli instructed all employees to
complete Local 707’s membership application and return it to the dispatcher. In January, the
Company posted a sign in the drivers’ room at its LaSalle Street facility instructing all employees
to sign Local 707’s application in order to pick up their schedules and specifically stating that
“[s]igning is a condition of employment.” Supervisor Duncan reiterated this requirement when
asked about it by Russell and added that any employee who did not comply would not permitted

64 GC Br. 54–56.
JD–34–10
5
10
15
20
25
30
35
40
45
50
20
to select a driving route and, thus, “could be terminated.” Later that day, dispatchers began
handing out the union applications and dues checkoff forms, and they were also placed on a
table in the drivers’ room. Under the circumstances, by forcing employees to sign Local 707’s
authorization cards and membership applications, the Company violated Section 8(a)(2) and (1)
of the Act.
D. The Company’s Response to Union Solicitation Outside Its Facility
On several occasions in late January or early February, Russell and Baumwoll were
soliciting on behalf of Local 726 in front of the Company’s LaSalle Street facility. Rapacioli saw
them speak with another driver, Susan Santopaolo, who signed an authorization card for Local
726 and handed it to Baumwoll. Rapacioli called her over and directed her to retrieve her card.
Santopaolo complied and handed the card to Rapacioli, who proceeded to rip it up. I did not,
however, rely on the testimony of nonemployee Baumwoll that Rapacioli also spat at him and
threatened to call the police and inflict unspecified harm upon his family. Russell, the only
employee involved in the concerted activity, apparently did not observe those particular actions
and statements, and they are not actionable here.
An employer’s mere observation of open, public union activity on or near its property is
not unlawful. Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000). By April, however, Baumwoll
was no longer an employee or an applicant seeking employment with the Company. His activity
was solely as an advocate for Local 1181. While the evidence reveals that Russell was in the
vicinity, there is no credible evidence established that he or any other employee observed or
heard about Rapacioli’s subsequent interaction with Baumwoll. Accordingly, that portion of the
April incident does not constitute a violation of Section 8(a)(1). See Wackenhut Corporation, 348
NLRB 1290, 1290 (2006), citing NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 94–95
(1995).
There was credible evidence, however, that Russell observed the earlier portion of this
incident. He observed Rapacioli take photographs as he and Baumwoll solicited support for
Local 1181. In doing so, Rapacioli tended to intimidate Russell, a current employee, and instilled
fear of future reprisal if he continued to engage in such behavior. In re Orland Park Motor Cars,
Inc., 333 NLRB 1017, 1041 (2001); Athens Disposal Co., 315 NLRB 87, 98 (1994). Similarly, by
directing Santopaolo to retrieve her authorization cards from the union and then proceed to rip it
up, he coerced or restrained Santopaolo and Russell from exercising their rights under Section
7 of the Act in violation of Section 8(a)(1). Don Thomas Bus Co., 2006 WL 839168 at 9 (Mar.
28, 2006).
E. The Company’s Prohibition Against Union Solicitation in April 2009
In April, Russell was at the Company’s South Avenue facility on administrative business
and took the opportunity to approach trainees in a classroom during a break. He advocated on
behalf of Local 1181. MacElhose, the instructor, was not present at the time, but a trainee
subsequently passed along Russell’s comments to Rapacioli. Russell was called into
Rapacioli’s office the next day and admonished for speaking to the trainees on behalf of Local
1181. Rapacioli expressed his animosity toward Local 1181 and threatened to discharge
Russell if he ever did it again in the Company’s facility.
An employer may forbid union solicitation during worktime, if that prohibition also
extends to other subjects not associated or connected with the employees’ work tasks. Our
Way, 268 NLRB 394 (1983). Accord: Jay Metals, Inc., 308 NLRB 167 (1992). However, an
employer violates the Act when employees are forbidden to discuss unionization, but are free to
JD–34–10
5
10
15
20
25
30
35
40
45
50
21
discuss other subjects unrelated to work. . . .” Jensen Enterprises, 339 NLRB 877, 878 (2003).
Further, in considering whether communications from an employer to its employees violate the
Act, “the Board applies the objective standard of whether the remark tends to interfere with the
free exercise of employee rights. The Board does not consider either the motivation behind the
remark or its actual effect.” Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
In this case, the credible evidence establishes that the trainees were not in the midst of
instruction or any other type of work activity when Russell addressed them. The instructor was
not present and they were on a break. Nor was there evidence that the Company had a rule
prohibiting nonwork-related conversation during instructional breaks or any other time while
employees were elsewhere in the facility. As such, Rapacioli’s statement conveyed the
message that Russell was prohibited from speaking about Local 1181 to anyone—anywhere in
the building and at anytime, even outside the classroom. It would not “have been understood as
merely curbing social discussions during a busy period.” See Scripps Memorial Hospital
Encinitas, 347 NLRB 52 (2006). Under the circumstances, the Company’s discriminatory
prohibition on union discussion while employees were on a break in the training room or
anywhere else in the facility, and threatening to discharge an employee if he did it again,
violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 707 and Local 1181 are labor organizations within the meaning of Section 2(5)
of the Act.
3. By directing and urging its employees or applicants for employment on October 20,
2008 to sign cards authorizing Local 707 to represent them as a condition of employment, and
by informing its employees and applicants for employment on December 22, 2008 and early
January 2009 that that they had to sign such cards in order to be employed by it and authorizing
dues for Local 707 to be deducted from their salary, the Company violated Section 8(a)(2) and
(1) of the Act.
4. By recognizing Local 707 as the collective-bargaining representative of its employees,
on September 12, 2008, at a time when the Company did not employ a representative segment
of its ultimate employee complement and was not yet engaged in its normal business
operations, the Company violated Section 8(a)(2) and (1) of the Act.
5. By executing a collective-bargaining agreement with Local 707 on September 12,
2008, which agreement contained a union-security clause, notwithstanding the fact that Local
707 did not represent an uncoerced majority of the Company’s employees, the Company
violated Section 8(a)(1), (2), and (3) of the Act.
6. Having accepted unlawful recognition from the Company on September 12, 2008,
receiving unlawful assistance from the Company on October 20, 2008, and entering into and
maintaining the aforementioned collective bargaining agreement, Local 707 violated Sections
8(b)(1)(A) and 8(b)(2) of the Act.
7. By photographing employees as they engaged in lawful union activity, directing an
employee to retrieve her signed authorization card from Local 1181, confiscating it and ripping it
JD–34–10
5
10
15
20
25
30
35
40
45
50
22
up, and threatening an employee with discharge because he supported Local 1181 and
prohibiting him from speaking about Local 1181, the Company violated Section 8(a)(1).
8. The above-described unfair labor practices affect commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain unfair labor practices, I shall
recommend that it cease and desist and take certain affirmative action designed to effectuate
the policies of the Act. Having found that the Company unlawfully recognized and entered into a
collective-bargaining agreement on September 12, 2008, I shall recommend that the Company
withdraw and withhold all recognition from Local 707 as a collective-bargaining representative of
its employees, and order the Company to cease applying to its employees the terms of the
collective-bargaining agreement, or any extension, renewal, modification, or superseding
agreement,65 unless or until Local 707 is certified by the Board as such representative. I shall
also recommend that the Company reimburse its employees, present and former, for dues and
initiation fees involuntarily exacted from them as a result of the unlawful application of the union-
security clause in the collective-bargaining agreement entered into between the Company and
Local 707, with interest to be computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended66
ORDER
The Respondent, MV Public Transportation, Inc., Staten Island, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing its employees or applicants for employment, that they had to sign cards
authorizing Local 707 to represent them or to have dues for Local 707 deducted from their
salary, in order to be employed by the Company.
(b) Recognizing Local 707 as the exclusive collective-bargaining representative of its
employees at its Staten Island facility, at a time when Local 707 does not represent a majority of
such employees.
(c) Entering into and enforcing collective-bargaining agreements with Local 707
containing union-security and dues-checkoff provisions.

65 Nothing in this decision should be construed as requiring the Company to rescind benefits
conferred as the result of the unlawful application of contract provisions to them, see, e.g.,
Frontier Telephone of Rochester, supra at 1278 fn. 24; Kaiser Foundation Hospitals, 343 NLRB
57, 58 (2004).
66 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.
JD–34–10
5
10
15
20
25
30
35
40
45
50
23
(d) Enforcing and/or giving effect to the collective-bargaining agreement with Local 707;
provided, however, that nothing in this Order shall authorize or require the withdrawal or
elimination of any wage increase or other improved benefits or terms and conditions of
employment that may have been established pursuant to the performance of that collective-
bargaining agreement.
(e) Photographing employees engaged in union activity, prohibiting employees from
signing authorization cards on behalf of a union, and threatening employees with discharge for
speaking in support of a union.
(f) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 707 as the exclusive collective-
bargaining representative of its employees, unless and until said labor organization has been
certified by the Board as the exclusive representative of such employees.
(b) Reimburse, with interest as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987), all present and former employees for all initiation fees, dues, and other moneys
paid by them or withheld from them pursuant to the terms of dues checkoff and union-security
provisions of the collective-bargaining agreements between the Company and Local 707.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of money due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its Staten Island, New York
facility, copies of the attached notice marked “Appendix.”67 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Company’s
authorized representative, shall be posted by the Company and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Company has gone out of business or closed the facility involved in
these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Company at any time
since September 12, 2008.

67 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.”
JD–34–10
5
10
15
20
25
30
35
40
45
50
24
(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 Company has taken to comply.
Dated, Washington, D.C. June 7, 2010
_____________________________
Michael A. Rosas
Administrative Law Judge
JD–34–10
Staten Island, NY
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT direct or urge our employees or applicants for employment, to sign cards
authorizing Local 707, International Brotherhood of Teamsters (Local 707) to represent them or
authorize dues for Local 707 to be deducted from their salary.
WE WILL NOT recognize Local 707 as the exclusive collective-bargaining representative of our
employees at our Staten Island facility, at a time when Local 707 does not represent a majority
of such employees.
WE WILL NOT enter into and enforce any collective-bargaining agreement with Local 707
containing union-security and dues-checkoff provisions at a time when Local 707 does not
represent a majority of such employees.
WE WILL NOT enforce and/or give effect to any current collective-bargaining agreement with
Local 707; provided, however, that nothing in the Board’s Order shall authorize or require the
withdrawal or elimination of any wage increase or other improved benefits or terms and
conditions of employment that may have been established pursuant to the performance of such
collective-bargaining agreement.
WE WILL NOT photograph employees engaged in union activity, prohibit employees from
signing authorization cards on behalf of a union, and threaten employees with discharge for
speaking in support of a union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from Local 707 as the exclusive collective-
bargaining representative of our employees, unless and until the labor organization has been
certified by the Board as the exclusive representative of such employees.
JD–34–10
Staten Island, NY
WE WILL reimburse, with interest, all present and former employees for all initiation fees, dues,
and other moneys paid by them or withheld from them pursuant to the terms of dues-checkoff
and union-security provisions of the collective-bargaining agreements between us and Local
707.
MV PUBLIC TRANSPORTATION, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.