NEW YORK PARTY SHUTTLE, LLC,d/b/a ON BOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC, D/B/A ON BOARD T

National Labor Relations Board - Board Decisions

May 2, 2013

359 N.L.R.B. 1046 (N.L.R.B. 2013)

1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 112
New York Party Shuttle, LLC and Fred Pflantzer.
Case 02–CA–073340
May 2, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 19, 2012, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
Acting General Counsel filed an answering brief, and the
Respondent filed a reply to the Acting General Counsel’s
answering brief. The Acting General Counsel filed
cross-exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions, and to adopt
the recommended Order, as modified.
1

We affirm the judge’s finding that the Respondent dis-
charged Charging Party Fred Pflantzer
2
in violation of
Section 8(a)(3) and (1) of the Act when it failed to give
him any tour guide assignments after he publicized his
union organizational activities and criticized the Re-
spondent’s employment practices in similar email and
Facebook postings to third parties on February 11, 2012.
3

In particular, we affirm the judge’s finding that those
communications constituted union activity, even if di-
rected to tour guides of other New York City companies.
The February 11 communications were an obvious con-

1 In accordance with our recent decision in Latino Express, Inc., 359
NLRB No. 44 (2012), we shall order the Respondent to compensate
discriminatee Fred Pflantzer for the adverse tax consequences, if any,
of receiving a lump-sum backpay award. Further, we shall order the
Respondent to file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quarters.
2 We affirm the judge’s finding that the Respondent failed to meet its
burden of proving that Pflantzer was an independent contractor, rather
than its employee, within the meaning of Sec. 2(3) of the Act. We note
that the judge characterized the longstanding common law agency test
of independent contractor status as a “right-to-control” test. However,
the Board has repeatedly stated that an employer’s right to control the
manner and means of performing a job is but one of a number of factors
to be considered under the common law test, “with no one factor being
decisive.” Lancaster Symphony Orchestra, 357 NLRB1761, 1762
(2011), citing NLRB v. United Insurance Co., 390 U.S. 254, 258
(1968). Despite the judge’s characterization of the test, he correctly
applied it by reviewing and weighing all relevant factors to reach the
conclusion that Pflantzer was a statutory employee.
3 All subsequent dates are in 2012. In accord with the Acting Gen-
eral Counsel’s cross-exceptions, we correct the judge’s erroneous da-
ting of Pflantzer’s email and Facebook entry as sent/posted on February
10, 2012, rather than on February 11. This error does not affect our
disposition of any issue in this case.
tinuation of Pflantzer’s prior organizational activity, ac-
tivity which was known to the Respondent. Although
not mentioned by the judge, this prior activity included a
January 21 email that Pflantzer sent to the Respondent’s
tour guides as well as other guides in the area.

This
email, similar in content to the February 11 messages,
detailed a number of concerns about existing terms and
conditions of employment (including bounced
paychecks), proceeded to list the benefits of unioniza-
tion, and referenced approaching the National Labor Re-
lations Board. Pflantzer sent another email on February
2 informing his contacts of their right to be represented
by a union, and pasted what appears to be the Board’s
website summary of “Employer/Union Rights and Obli-
gations” into the text of his message.
4
The judge correct-
ly stated that in response to the unfair labor practice
charge and again at the hearing before the judge, the Re-
spondent essentially stated that, notwithstanding other
alleged job performance issues, its decision to no longer
give Pflantzer tour guide assignments would not have
been made but for his February 11 union activity.
5

In a single-motive case where there is no dispute as to
the activity for which discipline was imposed, the dual-
motive analysis set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), is not applicable.
6
Thus, the Re-
spondent’s sole relevant defense is the claim that
Pflantzer’s February 11 union activity was unprotected
because his communications on that date contained im-
permissibly disparaging and libelous statements about
the Respondent. For the reasons stated by the judge, we

4 Pflantzer sent a copy of that email to Tom Schmidt, the Respond-
ent’s CEO.
5 The judge’s recitation in his decision of the relevant response to the
unfair labor practice charge was incomplete. The paragraph should
read as follows, with the missing words in bold:
Mr. Pflantzer had to be redirected in 2011 on a number of occasions
for insubordination, unprofessional behavior, and for other minor in-
fractions. On a number of occasions, he was unable to maintain a pro-
fessional demeanor with the Company’s drivers, which is critical for a
tour to be successful. No disciplinary actions were taken in regard to
these issues because they had not risen to that level. As of February
10, 2012, despite the above issues Mr. Pflantzer was eligible to be
scheduled shifts when the high season returned. However, on
February 11, 2012, Mr. Pflantzer sent a very unprofessional written
communication to a number of parties containing false and defamato-
ry statements about the Company in an apparent effort to harm the
Company. As a result, he is no longer eligible to work for the Compa-
ny. However, this decision was based on his prior record with the
Company and on the unprofessional behavior he exhibited in sending
negative communications to third-parties who did not work for the
Company on February 11, 2012. It was in no way related to any pro-
tected activity.
6 See, e.g., Hispanics United of Buffalo, Inc., 359 NLRB 368, 369fn.
8 (2012).
NEW YORK PARTY SHUTTLE, LLC 1047

find no merit in this defense.
7
Accordingly, Pflantzer’s
union activity on February 11 was protected, and the
Respondent’s discharge of him violated Section 8(a)(3)
and (1) of the Act.
Moreover, to the extent that the Respondent’s excep-
tions may be construed as preserving a dual-motive de-
fense, a violation must still be found under a Wright Line
analysis. Under that analysis, once the Acting General
Counsel has carried his initial burden of showing unlaw-
ful motivation, the burden shifts to the Respondent to
establish that it would have discharged Pflantzer even in
the absence of his union or protected activities. The Re-
spondent’s admission that Pflantzer’s union activity was
a motivating factor in his discharge satisfies the Acting
General Counsel’s initial Wright Line burden, and we
agree with the judge that the Respondent failed to meet
its Wright Line rebuttal burden.
Based on the foregoing, we find that the Respondent
unlawfully discharged Pflantzer because of his union
activity.
8

ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, New
York Party Shuttle, LLC, New York, New York, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Discharging employees because of their union ac-
tivity or to discourage employees from engaging in union
or protected concerted activity.”
2. Insert the following after paragraph 2(b) and renum-
ber subsequent paragraphs accordingly.
“(c) Reimburse Fred Pflantzer an amount equal to the
difference in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
had there been no discrimination against him.

7 We note that the judge’s analysis included a finding that Pflantzer’s
statements were not unprotected under Atlantic Steel Co., 245 NLRB
814 (1979). The Atlantic Steel analysis “typically applies when deter-
mining whether activity that is initially protected has been rendered
unprotected by subsequent misconduct. . . . Here, however, where the
Respondent contends that the [email and] Facebook postings were
unprotected from the outset, an Atlantic Steel analysis is unnecessary.”
Hispanics United, supra, at 370 fn. 12 (citing Crowne Plaza LaGuar-
dia, 357 NLRB 1097 (2011)).
8 Thus, we find it unnecessary to rely on the judge’s additional find-
ing that the Respondent believed that Pflantzer, if he resumed working
in 2012, would try to convince the other employees to unionize. Inas-
much as we affirm the judge’s finding that the Respondent’s discharge
of Pflantzer for his union activity violated Sec. 8(a)(3) and (1) deriva-
tively, we find it unnecessary to pass on the Acting General Counsel’s
cross-exception to the judge’s failure to find that the discharge inde-
pendently violated Sec. 8(a)(1).
“(d) Submit the appropriate documentation to the So-
cial Security Administration so that when backpay is
paid to Fred Pflantzer it will be allocated to the appropri-
ate periods.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge employees because of their un-
ion activity or to discourage employees from engaging in
union or protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Fred Pflantzer full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Fred Pflantzer whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest compounded
daily.
WE WILL reimburse Fred Pflantzer an amount equal to
the difference in taxes owed on receipt of a lump-sum
backpay payment and taxes that would have been owed
had there been no discrimination against him.
WE WILL submit the appropriate documentation to the
Social Security Administration so that when backpay is
paid to Fred Pflantzer, it will be allocated to the appro-
priate periods.
WE WILL remove from our files any reference to the
unlawful discharge of Fred Pflantzer, and WE WILL, with-
in 3 days thereafter, notify him in writing that we have
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

done so and that we will not use the discharge against
him in any way.

NEW YORK PARTY SHUTTLE, LLC

Alejandro Ortiz, Esq. and Ruth Weinreb, Esq., for the Acting
General Counsel.
C. Thomas Schmidt, Esq., for the Respondent.
DECISION
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York, New York, on August 7, 2012. The charge
and the amended charge were filed on January 27 and March
16, 2012. The complaint that was issued on May 30, 2012,
alleged as follows:
That on or about February 11, 2012, the Respondent dis-
charged Pflantzer because he engaged in union and concerted
protected activity by (a) using electronic mail to discuss with
employees of other employers in New York about terms and
conditions of employment and (b) communicated by way of
social media with employees of the Respondent and employees
of other employers about terms and conditions of employment.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Employer is engaged in
commerce as defined in Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Employer operates an enterprise under the name of On
Board Tours that provides a variety of guided tours in New
York City. The Company’s CEO and general counsel is C.
Thomas Schmidt and the person who directly supervises the
New York operation is Donald White. It is stipulated that both
individuals are supervisors and agents within the meaning of
the Act.
A. The Status of Pflantzer
The Charging Party, Fred Pflantzer, started to work for the
Respondent as a tour guide in October 2011. The Respondent
contends that Pflantzer was an independent contractor and not
an employee. I do not agree and conclude that he is an em-
ployee within the meaning of Section 2(3) of the Act.
The Respondent either owns or leases tour buses which it is
responsible for maintaining. It utilizes a group of about 17 to
18 tour guides on a regular basis and another group of about 8
or 9 busdrivers. The record shows that Pflantzer, and presuma-
bly all of the other tour guides, are paid on an hourly basis, and
that he received company checks from which were deducted
social security taxes and Federal and State income taxes. For
tax purposes, tour guides are given W2 statements for filing
with the IRS and the New York State Finance Department.
Additionally, the Company makes payments into the New York
State unemployment insurance fund so that these individuals
can be entitled to unemployment insurance in the event of
layoffs. All employees, including tour guides, are eligible for a
company provided health insurance policy.
The tour guides typically notify White on each Thursday
about their availability for the following week. White typically
responds on Saturday or Sunday, giving each tour guide and
driver their weekly schedule.1 In doing so, he decides what
routes they are to cover and how to pair up the drivers and
guides so as to make a harmonious team. The Company pro-
vides a variety of different tours and the routes for each one is
determined by management. That is, once a tour route has been
set, neither the driver not the guide has the option to vary it.
However, each guide has his or her own talking points which is
not directed or controlled by the Company.
Schmidt agrees that it is very rare for there to be a written
contract between the Company and a tour guide and that there
was no such contract with Pflantzer. Once Pflantzer has noti-
fied the Company of his availability for a given week, he works
exclusively for the Respondent on the schedule that he receives.
I do note, however, that Pflantzer has his own tour guide com-
pany, which he operates out of his home and has notified White
that he is often not available on weekends when he operates his
own business.2
The test of whether an individual is an independent contrac-
tor or an employee is the common law of agency right-to-
control test. NLRB v United Insurance Co., 390 U.S. 254, 256
(1968). Pursuant to that test, an employer-employee relation-
ship exists when the employer reserves the right to control not
only the ends to be achieved but also the means to be used to
achieve those ends. On the other hand, where the control is
reserved only as to the result, an independent contractor rela-
tionship exists. Gold Medal Baking Co., 199 NLRB 895
(1972). See also Standard Oil Co., 230 NLRB 967, 968
(1987).
In BKN, Inc., 333 NLRB 143 (2001), the Board listed a
number of factors to be taken into account. These include: (a)
The extent of control that the employing entity exercises over
the details of work; (b) Whether or not the one employed is
engaged in a distinct occupation or business; (c) The kind of
occupation, including whether in the locality, the work is usual-
ly done under the direction of the employer or by a specialist
without supervision; (d) The skill required in the particular
occupation; (e) Whether the employer or the workman supplies
the instrumentalities, tools, and the place of work for the person
doing the work; (f) The length of time for which the person is
employed; (g) The method of payment, whether by the time or
by the job; (h) Whether or not the work is part of the regular
business of the employer; (i) Whether the parties believe they
are creating the relation of master and servant; and (j) Whether
the principal is or is not in business. (Restatement of the Law
(Second) of Agency § 220, pp. 485–486.) See also NLRB v.

1 The initial schedules will depend on the amount of customers who
sign up for tours for the upcoming week. To ensure coverage, White
will also assign a few guides and drivers to on call status, as it is not
unusual for new customers to be acquired during the week.
2 Tour guides are licensed by New York’s Department of Consumer
Affairs and once having obtained a license can work as a guide for any
company providing such services or independently on his or her own
behalf.
NEW YORK PARTY SHUTTLE, LLC 1049

United Insurance Co., 390 U.S. 254; Community for Creative
Non-Violence v. Reid, 490 U.S. 730 (1989).
In my opinion, the parties understood their arrangement to be
that of employer/employee. There was no written contract or
other documents describing their relationship as anything other
than that of employer and employee. This is confirmed by the
fact that Pflantzer was issued a W2 statement for tax purposes
and had Federal, State, and Social Security taxes deducted from
his earning. Additionally, he worked on a regular basis for the
Company on tours that were set by the Company’s management
and with work partners who were determined by management.
It is true that he had discretion in determining how he would
address the customers, but his discretion was constrained by the
fact that the tour route (and therefore the things to be pointed
out), were established by the Company and could not be deviat-
ed from either by him or the driver. The bus, obviously being
the main tool of the trade, is provided by the Respondent,
whereas the skill of communicating to tourists is the principle
asset brought by a tour guide.
There are some aspects of this relationship which could favor
either proposition, but on balance, it is my opinion, that the
evidence supports the conclusion that Pflantzer had an em-
ployment relationship with the Respondent and was not an
independent contractor.
B. The Discharge
At some point during his employment, Pflantzer started
communicating to other employees of the Company about the
idea of getting a union. This was somewhat generalized and
neither he, nor anyone else, actually took the step of contacting
a union. Nevertheless, the Company’s management was aware
of this and they claim that this talk started in or around Novem-
ber 2011. Pflantzer’s recollection is that he talked to about six
or seven other employees regarding unionization in or around
December 2011 or January 2012. In describing complaints that
some of the drivers had about Pflantzer, White testified that
some told him that Pflantzer was bothering them about getting
a union.
The month of December is generally a very busy month as
there are many tourists in the city at that time. However, the
evidence shows that after January 1, the Company’s business
typically declines rather drastically and that it runs substantially
fewer tours. According to White, business begins to pick up in
late February and returns to a normal level in or around March.
He also testified that in February he generally starts to reach out
to drivers and tour guides who haven’t worked for a while and
to start interviewing new prospective people to do these jobs.
In January 2012, the Company’s schedule of tours dropped
and Pflantzer and several other tour guides were simply not
scheduled to work. As the complaint alleges that Pflantzer was
not discharged until February 11, 2012, it is conceded by the
General Counsel that the failure to schedule him for work dur-
ing all of January and half of February was not unlawful.
On February 11, 2012, Pflantzer sent an email to employees
of another company called City Sights from which he had re-
signed before starting to work at New York Party Shuttle. This
email was not sent to any employees of the Respondent.
On the same date, he posted a message on a Facebook site
called NYC Tour Guides, which according to Pflantzer, is a
closed site, accessible only to New York City tour guides who
have been invited to join this site. He testified that he did not
know if any employees of the Respondent were members of or
had access to this website and there was no other evidence to
show if this was the case.
The email stated in pertinent part:

As you probably know, I am no longer at CitySights. I re-
signed, said goodbye and went over to OnBoard Tours in Oc-
tober, thinking the grass and tips would be greener. Well as
often the case, I found it to be untrue.

Believe it or not CitySights is a worker’s paradise compared
to OnBoard! At OnBoard you will receive no health insur-
ance, sick days, vacation days or one single benefit. You will
ride around on unsafe buses, without the benefit of a PA sys-
tem, or sometimes even a seat.

There is no union to protect you; you are subject to arbitrary
disciplinary actions and out-right dismissal without recourse.
If the company were to be sold, which is what I believe will
happen there is no successor clause to protect your jobs.

And perhaps most egregious of all of the flaws,
PAYCHECKS BOUNCE, yes that’s right, they bounce.

Needless to say, I started to agitate for a union. Guess what
happened, I stopped being called for work. I disappeared off
the work sheet, not fired outright, but in effect kicked to the
curb.

My hat is off to USWU 1212 for the excellent work they have
done preserving your jobs.

As you all well know, we have a right to organize in this
country, a right protected by the US Government.

I am currently at the NLRB bringing charges against this dys-
functional company.

So before you jump ship, talk to me, I’ll be glad to fill you in
on all the gory details.

The Facebook posting, that incorporates much of the previ-
ously described email, states as follows:

I was recently placed on the Do Not Call List at OnBoard
Tours. Prior to that I worked at CitySights, we have all heard
the horror stories about CS and for the most part they are true.

But believe it or not, CitySights is a worker’s paradise com-
pared to OnBoard! At OnBoard you will receive no health in-
surance, sick days, vacation days or one single benefit. You
will ride around on unsafe buses, without the benefit of a PA
system, or sometimes even a seat.

There is no union to protect you; you are subject to arbitrary
disciplinary actions and out-right dismissal without recourse.
If the company were to be sold, which is what I believe will
happen there is no successor clause to protect your jobs.

And perhaps most egregious of all of the flaws,
PAYCHECKS BOUNCE, yes that’s right, they bounce.

Needless to say, I started to agitate for a union. Guess what
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

happened, I stopped being called for work. I disappeared off
the work sheet, not fired outright, but in effect kicked to the
curb.

My hat is off to USWU 1212 for the excellent work they have
done preserving your jobs.

As you all well know, we have a right to organize in this
country, a right protected by the US Government.

I am currently at the NLRB bringing charges against this dys-
functional company.

Do not under any circumstances seek employment at this
company, they should be boycotted by all.

In a response to the unfair labor practice charge Schmidt,
gave a statement to the Regional Office in which he stated:

Mr. Pflantzer had to be redirected in 2011 on a number of oc-
casions for insubordination, unprofessional behavior, and for
other minor infractions. On a number of occasions, he was
unable to maintain a professional demeanor with the Compa-
ny’s drivers, which is critical for a tour to be successful.3 No
disciplinary actions were taken in regard to these issues be-
cause they had not risen to that level. As of February 10,
2012, despite the above issues, Mr. Pflantzer sent a very un-
professional written communication to a number of parties
containing false and defamatory statements about the Compa-
ny in an apparent effort to harm the Company. As a result, he
is no longer eligible to work for the Company. However, this
decision was based on his prior record with the Company and
on the unprofessional behavior he exhibited in sending nega-
tive communications to third parties who do not work for the
Company on February 11, 2012. It was in no way related to
any protected activity.

Moreover, at the hearing, the Respondent reiterated its posi-
tion that the decision made in February not to utilize Pflantzer
anymore would not have been made but for the February 2012
communications made by him.
Analysis
In my opinion, Pflantzer’s February 10 email (and his fol-
lowup Facebook entry), constitute communications that are
protected by Section 7 of the Act. In those communications,
Pflantzer stated that he had made some efforts to get a union;
that the employees of the Company needed a union; and that
the law protected employees in their right to organize a union.
This is, in effect, union-related activity. C.S. Telecom, Inc.,
336 NLRB 1193 fn. 3 (2001), and Acme Bus Corp., 320 NLRB
458, 479 (1995).4
The evidence shows to my satisfaction that the Company,

3 As noted above, White testified that some of the drivers com-
plained to him that Pflantzer was bothering them about organizing a
union.
4 In Acme Bus Corp., the Board held that even though an employee
may be acting alone, a worker attempting to form, join, or assist a union
is nevertheless protected by Sec. 7 of the Act, and an employee’s action
in publicizing her labor dispute is within the scope of activities protect-
ed by that section. Carpenters Local 925, 279 NLRB 1051, 1059 fn. 40
(1986); Cincinnati Suburban Press, 289 NLRB 966, 967 (1988).
based on the February 10 communications, believed that
Pflantzer, if he resumed working in 2012, would make efforts
to convince the other employees to unionize. Thus, while as-
serting as a defense that other employees had complained about
being bothered by Pflantzer, White described this as meaning
that these employees had been talked to by Pflantzer about
unionization. I therefore conclude that the reason that the
Company decided to not utilize Pflantzer as a tour guide after
February 2012 was because it believed that if he returned to
work, he would engage in union activity. As such, it is my
opinion that this would violate Section 8(a)(1) and (3) of the
Act. Approved Electric Corp., 356 NLRB 238 (2010).
The Respondent asserts that Pflantzer’s February 10 com-
munications are libelous and are therefore not protected by the
Act. I do not agree.
Pflantzer’s communications were indeed rather harsh about
the Company as to its dealings with employees. But that does
not make them libelous. In fact, virtually all of the accusations
made by Pflantzer were true and therefore cannot be deemed to
be libel. It was admitted that there were occasions when the
checks issued to employees were not covered by sufficient
funds. It was also admitted that the Company had received a
number of safety violations. The statements regarding the em-
ployee benefits were substantially correct and even if slightly
off, would not constitute the type of statements that would lose
the protection of the act either under Atlantic Steel Co., 245
NLRB 814 (1979), or NLRB v. Electrical Workers Local 1229,
346 U.S. 464 (1953). (The latter case holding that disparaging
statements about working conditions are protected but that
statements that disparage the employer or its products may not
be protected.) See also Montauk Bus Co., 324 NLRB 1128,
1138 (1997), and Darphin USA, Inc., 326 NLRB 1153, 1156
(1998).
I also reject any contention that Pflantzer’s discharge was
warranted or motivated by the fact that he operated a competing
company. This fact had been known to the Respondent for
some time and was not asserted to either Pflantzer or the
Board’s Regional Office as a reason for his termination. In-
deed, the testimony by Respondent’s witness was that had it not
been for his February communications Pflantzer would have
been retained.
For all of the foregoing reasons, I conclude that the Re-
spondent discharged Pflantzer because of his union-related
activity and/or the Respondent’s belief that he would have en-
gaged in union activity if was reemployed. Pursuant to Wright
Line, 251 NLRB 1083 (1980), the Respondent has not met its
burden of showing that it would have discharged Pflantzer for
reasons other than his union activity.
CONCLUSIONS OF LAW
1. By discharging Fred Pflantzer because of his union activi-
ties, the Respondent violated Section 8(a)(1) and (3) of the Act.
2. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
NEW YORK PARTY SHUTTLE, LLC 1051

fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against him. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB (1950), with
interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1187 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, New York Party Shuttle, LLC, New York,
New York, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their activities on be-
half of or support for union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Fred
Pflantzer full reinstatement to his former job or, if that job no
longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.

5 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 pur-
poses.
(b) Make Fred Pflantzer whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful actions against Fred
Pflantzer and, within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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 backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
New York facility, copies of the attached notice marked “Ap-
pendix.”6 Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 10, 2012.
(f) 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.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”