R.C.L. Transit, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1989

296 N.L.R.B. 9 (N.L.R.B. 1989)

R.C.L. TRANSIT
R.C.L. Transit, Inc. and Local 810, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.
Cases 29-CA-13638 and 29-CA-13806
August 7, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On May 18, 1989, Administrative Law Judge
James F . Morton issued the attached decision.
The Charging Party filed exceptions and a sup-
porting brief. The Respondent filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The judge erroneously found that the Union filed an unfair labor
practice charge in Case 29-CA-13621 on August 3, 1988 The correct
date is July 22, 1988 He also erroneously found that the Respondent's
attorney wrote employee Eugene Giordano a certified letter on Septem-
ber 5, 1988 . The correct date is July 29, 1988 . Further , the record indi-
cates that the Respondent 's president wrote three certified letters to
Giordano after August 12, 1988. The judge had referred to four certified
letters. None of these minor factual errors affect the result in this case.
Kevin R. Kitchen, Esq., for the General Counsel.
Stuart M. Kirshenbaum, Esq. (Pollack & Kirshenbaum,
P.C.), of Valley Stream , New York, for R.C.L. Tran-
sit, Inc.
Sidney L. Meyer, Esq., of New York City, for Local 810,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO.
DECISION
STATEMENT OF THE CASE
JAMES F . MORTON , Administrative Law Judge. After
the hearing in these consolidated cases closed , General
Counsel filed a motion to withdraw the complaint. Local
810, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL-CIO
(Union) submitted a brief in opposition to that motion.
R.C.L. Transit, Inc. (Respondent) sent a letter in support
of the motion.
General Counsel 's motion is predicated on the asser-
tion that "General Counsel learned that the same issues
raised (in the instant cases) have been litigated and decid-
ed in Mineola Ford Sales Ltd., 258 NLRB 406 (1981),
9
wherein the Board held that the letter in issue did not
constitute a violation of the Act." The letter General
Counsel refers to is discussed below.
The Union contends that General Counsel has misread
Mineola Ford. To consider these contentions , it is neces-
sary to set out the following
FINDINGS OF FACT
1. THE ALLEGATIONS
The complaint in these consolidated cases alleges that
Respondent has committed unfair labor practices within
the meaning of Section 8(a)(1) and (4) of the National
Labor Relations Act (the Act) by having sent coercive
letters to a discharged employee who had been named in
an unfair labor practice charge in another case.
II. JURISDICTION AND LABOR ORGANIZATION
Respondent operates a charter bus service and receives
in excess of $250 ,000 in gross revenues annually from the
City of New York for such services. Judicial notice may
be taken of the fact that the operations of the City of
New York exceed the Board's inflow or outflow stand-
ards; further, the value of Respondent's services to the
City of New York may be considered for jurisdictional
purposes . See Electrical Workers IBEW Local 46 (Pac,
Inc.), 273 NLRB 1357, 1358 (1985). There is no evidence
that the City of New York possesses authority over Re-
spondent 's operations such as would impinge on either its
day-to-day operations or its ultimate control of labor re-
lations. Cf. Rustman Bus Co., 282 NLRB 152 (1986), I
therefore find that it will promote the policies of the Act
for the Board to assert jurisdiction in this case.
The Union is a labor organization as defined in the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Relevant Facts
All dates hereafter are for 1988 unless stated other-
wise . Respondent employs bus drivers and they are un-
represented for purposes of collective bargaining.
On August 3, the Union filed an unfair labor practice
charge in Case 29-CA-13621 alleging, among other
things, that Respondent had on July 20 unlawfully dis-
charged one of its drivers, Eugene (Robert) Giordano.
On September 5, Respondent's attorney wrote Giordano
a certified letter which read:
As you know, there is presently pending an
NLRB proceeding regarding your lay-off. In that
proceeding, there may be a claim for back-pay on
your behalf. In order to properly evaluate any pos-
sible back-pay liability in the event that it becomes
necessary, you are requested , beginning immediate-
ly, to file with the undersigned, weekly, information
relating to your efforts regarding your search for
employment and such information should include:
a) Time, date and place where application was
made;
296 NLRB No. 2
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b) Identity of firm and address and person to
whom application was made;
c) Details of position applied for;
d) Method by which " lead" was obtained includ-
ing copies of all ads answered;
e) Result of such application;
f) Names and addresses of places where you were
or are employed;
g) Hours worked (days and time);
h) Amount of earnings including wages, unem-
ployment insurance , disability insurance, support or
alimony, etc.
In the event that you should fail to comply with
this request , your failure to do so will be brought to
the attention of the Agency handling any possible
back-pay proceeding and a demand will be made at
that time for you to produce this information.
On August 3, the Union filed the charge in Case 29-
CA-13638 alleging that Respondent engaged in an unfair
labor pratice within the meaning of Section 8(a)(1) of the
Act by having sent that letter to Giordano.
On August 12, Respondent's president wrote a certi-
fied letter to Giordano which read:
As you have previously been advised, there is
presently pending an NLRB proceeding regarding
your discharge . In that proceeding , there may be a
claim for backpay on your behalf. You are obligat-
ed under the existing status of the law to actively
and earnestly seek employment . In connection
therewith, you are hereby advised that the follow-
ing newspaper ads for work have appeared:
[Photostatic copies of seven newspaper adver-
tisements for drivers, including three seeking
school bus driver job applicants]
After the completion of each application or re-
sponse to the foregoing, you are to advise the un-
dersigned as to the time , place and identity of the
person to whom your response was made . Should
your response to the foregoing be in writing, a copy
of said response is to be immediately forwarded to
us.
In the event you fail to comply with this request,
your failure to do so will be brought to the atten-
tion of the Judge handling any backpay proceeding
and a demand will be made at that time for a find-
ing that you have not sought employment.
This letter of August 12 indicates that a copy of it was
sent to the Board 's office at Region 29 and another copy
to Respondent 's attorney.
Respondent 's president wrote four more letters to
Giordano via certified mail, all identical to the above,
except that the photostatic copies of the newspaper ads
varied. Thus, on August 19, photostatic copies of 13 ads
were inserted , including 11 for school bus drivers; on
August 26 , there were 15 ads inserted , 9 of which were
for school bus drivers ; and on September 9, there were 5
school bus driver ads in the insert.
On November 25, the Union filed the unfair labor
practice charge in Case 29-CA-13806 alleging that Re-
spondent , since July 25, has committed unfair labor prac-
tices within the meaning of Section 8(a)(1) and (4) of the
Act in intimidating Giordano by writing numerous let-
ters threatening and retaliating against him because an
unfair labor practice charge had been filed in his behalf
with the Board.
On November 29, the General Counsel issued an order
consolidating cases 29-CA-13621, 29-CA-13638, and
29-CA- 13806 alleging violations of Section 8(a)(1), (3),
and (4) of the Act which included Giordano' s alleged
unlawful discharge , allegations of independent coercive
conduct and an allegation that the five letters sent Gior-
dano were violative of Section 8(a)(1) and (4) of the Act.
At the hearing before me, the parties reached a non-
Board adjustment as to Giordano 's discharge and as to
all other allegations , excepting the allegation in Cases
29-CA-13638 and 29-CA- 13806 that the Respondent, by
writing Giordano , violated Section 8(a)(1) and (4). Based
on the adjustment , I approved the Union 's request to
withdraw its charge in Case 29 -CA-13621 and the Gen-
eral Counsel 's request to withdraw the allegations of the
complaint that was issued in that case.
B. Analysis .
Mineola Ford, supra, held that the respondent there did
not unlawfully interrogate an employee in violation of
Section 8(a)(1) of the Act, by having sent him a letter
substantially identical to those sent Giordano in the in-
stant case . The Union now asserts that Respondent here
has violated , as alleged in the complaint , Section 8(a)(1)
and (4) of the Act by having sent Giordano letters in
order to discourage him from cooperating with the
Board 's Regional Office in its investigation of the merits
of the underlying unfair labor practice charges.
It is well settled that I am bound by Board precedent.
The Board has held , in Mineola Ford, that the letter
there did not constitute interference with or restraint or
coercion of employee rights under Section 7 of the Act.
As essentially the same correspondence is involved in the
instant case, I must draw the same conclusion . In sub-
stance , the Union would have me reconsider the lawful-
ness of the types of letters sent in Mineola Ford, based on
the theory framed in the complaint . That is a matter
beyond my province.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent did not engage in any unfair labor prac-
tices alleged in the complaint.
R.C.L. TRANSIT I i
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The complaint is dismissed.
I If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the poses.