Red & Tan Charters

National Labor Relations Board - Board Decisions

Aug 15, 1994

314 N.L.R.B. 727 (N.L.R.B. 1994)

727
314 NLRB No. 124
RED & TAN CHARTERS
1 At the end of December 1992, ATC employed about 15 van driv-
ers and about 12 coach drivers out of a total of about 47 employees.
Red & Tan Charters, Inc. and Local 456, Inter-
national Brotherhood of Teamsters, AFL–CIO
and Local 270, Retail, Wholesale, Warehouse
and Production Employees International
Union, Party in Interest. Case 2–CA–26331
August 15, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 1, 1994, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and both the General Counsel and the Charging Party
Union have filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Red & Tan Charters, Inc.,
Carmel, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Richard L. DeSteno, Esq., for the General Counsel.
David Lew, Esq. (Peckar & Abramson, P.C.), of River Edge,
New Jersey, for the Respondent.
Wendell Shepherd, Esq. (Roy Barnes, P.C.), of Bronx, New
York, for Charging Party Local 456.
Larry Cole, Esq. (Cole & Cole), of Jersey City, New Jersey,
for Local 270.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on December 20,
1993. The complaint alleges that Respondent, in violation of
Section 8(a)(1), (2), and (3) of the Act, recognized and en-
forced a collective-bargaining agreement with Local 270,
threatened employees with discharge or with refusal to em-
ploy, assisted Local 270 and refused to consider certain em-
ployees for employment. Respondent denies the material alle-
gations of the complaint.
On the entire record, including my observations of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by General Counsel, Charging Party, and Re-
spondent on January 24, 1994, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with a place of business in Car-
mel, New York, is engaged in the operation of interstate bus
transportation of passengers. Respondent annually derives
gross revenues in excess of $100,000. Respondent admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act, and
that Local 456, International Brotherhood of Teamsters,
AFL–CIO (Local 456) and Local 270, Retail, Wholesale,
Warehouse & Production Employees International Union
(Local 270) are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years up to December 31, 1992, ATC
Management Corp. had provided interstate passenger bus
service and school-related transportation to Putnam County,
New York. The employees of ATC were represented by
Local 456. In the latter part of 1992, Putnam County award-
ed the contract to provide bus service to Respondent Red &
Tan Charters, Inc. Red & Tan was to commence providing
service on January 1, 1993. On November 16, 1992, Red &
Tan signed a collective-bargaining agreement with Local
270; the labor contract had a term from November 16, 1992,
to November 16, 1996. The agreement provided that Red &
Tan recognized the Union as the exclusive bargaining rep-
resentative of employees in the following unit:
All [Red & Tan] drivers, maintenance employees and
bus monitors, excluding all office and clerical employ-
ees, starters, road men, dispatchers, watchmen, guards,
aides, professional employees and all supervisory work-
ers, as defined in the Labor-Management Relations Act
of 1947, as amended.
ATC had employed coach (or bus) drivers, van drivers,
monitors, and mechanics. The coach drivers and mechanics
worked full time and had what their Union, Local 456, con-
sidered a full benefit package. The coach drivers drove inter-
state vehicles. The van drivers and monitors did not work
full time, they earned a lower rate of pay and fewer benefits.
Vans were used to transport handicapped children and adults
to schools and activities; they had only 16 seats, a smaller
capacity than the coaches. The monitors rode vans and as-
sisted the handicapped individuals. Local 456 enrolled van
drivers and monitors as associate members of the Union.1
On October 5, 1993, Judge McKenna of the Southern Dis-
trict of New York issued a temporary injunction pursuant to
Section 10(j) of the Act which dealt with many of the same
matters covered by the instant proceeding.
B. The Facts
Patricia Maher, a van driver for ATC, testified that in De-
cember 1992, at the Fair Street facility in Putnam County,
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Fair Street facility is apparently the location where drivers
report for work and where the contractor which provides bus service
to the county maintains its offices during the term of the contract.
3 Giordenango informed Maher that wages would be $9 per hour
for full-time employees and $8.50 per hour for part-time, and that
employees would pay 15 percent of the cost of health insurance.
4 Powers’ affidavit given to a Board agent states that Giordenango
told him that there was a good contract in effect between Local 270
and the Company.
she met Bill Giordenango, a supervisor of Red & Tan.2
Giordenango was giving out employment applications to the
current ATC employees. Maher completed an application
form and handed it in. One week later, about the third week
of December 1992, Giordenango telephoned Maher and the
two met for an interview. After some discussion about the
wages and benefits offered by Red & Tan, Maher mentioned
that she belonged to Local 456 and asked if the Union would
remain with the employees.3 Giordenango replied that he did
not know. In response to Giordenango’s question whether
Maher would want to work for Red & Tan, Maher replied
that she would let him know.
Maher attended an employee meeting conducted by Red &
Tan at the Fair Street facility on January 2, 1993. There were
about 50 prospective employees in attendance, of whom
about 15 had worked for ATC. Red & Tan distributed em-
ployment applications and told the people to fill them out.
Included with the application materials was an authorization
card for Local 270. In response to Maher’s question whether
she had to belong to Local 270, Red & Tan Manager Larry
Bellack responded that she had to belong to that Union; if
one did not belong to Local 270, one did not work for Red
& Tan. Maher inquired whether there was an initiation fee,
and Bellack said the fee was $25 and that the monthly dues
were $17.40. There were no Local 270 representatives
present. As Maher left the Fair Street facility, she told
Giordenango that she would not work for him because his
labor practices were poor. Maher testified that she did not
want to sign a card for Local 270 and that she understood
that she could not be employed by Red & Tan unless she
signed the card.
According to Maher, Red & Tan hired former ATC coach
driver Flossie Moore in October 1993, and it hired former
ATC coach driver Nancy Sands about 1 week before the in-
stant hearing in December 1993. Red & Tan also hired
former ATC van driver Bruce Acisela.
Mae Guarino, a former van driver for ATC, testified that
she attended the Fair Street meeting on January 2, 1993.
There was a question and answer session with officials of
Red & Tan, including Bellack and Giordenango. When Pat
Maher asked Bellack whether they had to sign union cards,
Giordenango replied that people had to sign the card if they
wanted to work for Red & Tan. The prospective employees
had been given a packet of materials to fill out including a
W4 form, an immigration form, an application for employ-
ment form, and a card for Local 270; Giordenango said the
union card was part of the package. Guarino filled out the
authorization card and she was hired on January 4 as a van
driver. In late January or early February 1993, Local 270
representatives came to Fair Street and discussed dues and a
contract. Guarino told them that she did not want to belong
to Local 270, but they replied that she had to belong to have
a job at Red & Tan.
Guarino estimated that of the approximately 47 ATC em-
ployees, about 12 or 14 went to work for Red & Tan in Jan-
uary 1993. Red & Tan employs 12 to 14 coach drivers; none
of these were former ATC coach drivers until Flossie Moore
was hired by Red & Tan in the fall 1993 and Nancy Sands
was hired about 1 week before the instant hearing.
Victoria Hooten, a bus monitor for ATC, testified that in
mid-December 1992, Giordenango came to the Fair Street fa-
cility and distributed applications for Red & Tan. Hooten
completed an application but she did not hear from Red &
Tan thereafter. During the last week in January 1993, Hooten
went to Fair Street and spoke to Red & Tan General Man-
ager Irene Morris and Manager John Deacon. Deacon handed
Hooten an application whereupon Hooten asked him why she
had to fill out another application since she had already
handed one in. Deacon replied that they had thrown those
away. Hooten was then hired by Red & Tan as a bus mon-
itor. One day after she began work, Red & Tan dispatcher
Ed Scott gave her an authorization card for Local 270 and
told her to fill it out. Hooten complied and returned the form
to Scott the next day. Dues were deducted from Hooten’s
paycheck from that time until November 1993.
Hooten testified that in mid-February 1993, she asked
Irene Morris whether former ATC coach drivers would be
hired if they applied for jobs. Morris replied that Red & Tan
would not hire ATC coach drivers. Hooten stated that in the
fall 1993, Red & Tan hired Flossie Moore and that in De-
cember 1993, Nancy Sands was hired. Bob Simmons, a
former ATC coach driver, was hired by Red & Tan as a me-
chanic. Bruce Acisela, who began as a van driver but later
became a coach driver for ATC, was hired as a coach driver
by Red & Tan.
Terence Powers, who had never worked for ATC, was
hired by Red & Tan as a coach driver. Powers was inter-
viewed by Giordenango in early December 1992; the two
men discussed Powers’ qualifications and Giordenango told
Powers that a good contract was being negotiated between
Red & Tan and the Union.4 In mid-December, Powers at-
tended a meeting at the Ramada Inn in Danbury, Con-
necticut, where he met Managers Bellack and Deacon. Pow-
ers was given a packet of papers to fill out, including an au-
thorization card for Local 270. Bellack instructed Powers to
sign the card and told him that all employees would be mem-
bers of this Union. Powers signed the card. Powers attended
a series of training sessions with about 10 or 12 other em-
ployees over the next few weeks. He was paid for his time.
According to Powers, at about Christmas time, Red & Tan
representatives told the employees that most of the drivers
had been hired, but that the Company still needed some
monitors and that employees should spread the word. Powers
began work for Red & Tan the first Monday in January
1993. About 1 month later, Local 270 representatives came
to Fair Street to meet the employees. They did not know
anything about the contract and could not answer questions
about employee benefits and rights; however, they said that
a good contract had been negotiated, that it was being print-
ed, and that it would soon be available to the employees.
One month later, Powers received a copy of the collective-
bargaining agreement between Red & Tan and Local 270.
Raymond Stahl, the business agent for Local 456, testified
that he called Bellack in September 1992, when he learned
729RED & TAN CHARTERS
5 Stahl told Giordenango that he had authorization cards from 43
ATC employees.
6 Respondent did not file a petition to revoke the subpoena pursu-
ant to the Board’s Rules.
7 Because Respondent refused to produce its payroll records, sec-
ondary evidence was used to establish these facts.
that Red & Tan had obtained the contract to provide service
in Putnam County. Bellack never responded to Stahl al-
though Stahl called repeatedly. In mid-November 1992, Stahl
went to Fair Street where the employees told him that ac-
cording to Giordenango, Red & Tan would be a union em-
ployer. Stahl stated that he was introduced to Giordenango
on this occasion, that he gave his business card to
Giordenango and that he told him Local 456 was the bar-
gaining agent of the employees.5 Stahl also mentioned to
Giordenango that he had been trying to contact Bellack with-
out success. Stahl’s affidavit apparently states that this occa-
sion occurred on December 12, 1992. Stahl testified that on
December 15, he saw Giordenango at Fair Street again and
that he waited for Bellack but the latter never came to the
office.
The documentary evidence shows that dues were deducted
by Respondent and remitted to Local 270 beginning in Feb-
ruary 1993, and ending at the time Judge McKenna issued
his Order in October 1993.
Respondent Red & Tan did not call any witnesses. Fur-
ther, Respondent refused to turn over to counsel for the Gen-
eral Counsel material sought pursuant to a subpoena duces
tecum.6 The subpoena requested the payroll records of Re-
spondent and the names and job classifications of employees
of Respondent, including their dates of employment, for the
period from July 1, 1992, to June 30, 1993. As a result of
Respondent’s refusal, I permitted counsel for the General
Counsel to introduce secondary evidence relating to these
subjects.
C. Discussion and Conclusions
The record shows that Red & Tan was actively recruiting
and hiring employees in December 1992, and January 1993.
There is no evidence that any employees were hired before
mid-December 1992.7 Yet, it is undisputed that Red & Tan
and Local 270 signed a collective-bargaining agreement cov-
ering the employees who provided interstate and school-re-
lated transportation to Putnam County effective November
16, 1992. Thus, on the record before me, it is clear that Re-
spondent signed the collective-bargaining agreement with
Local 270 recognizing it as the exclusive representative of its
employees before it commenced operations on January 1,
1993, and before it had hired any employees. Respondent
thus violated Section 8(a)(2) and (1) of the Act by giving un-
lawful support to Local 270 and interfering with the organi-
zational rights of its employees. Special Service Delivery,
259 NLRB 993, 994 (1982). Respondent also violated Sec-
tion 8(a)(3) and (1) of the Act by executing and maintaining
in effect, at a time when Local 270 did not represent an
uncoerced majority of Respondent’s employees, the contract
with Local 270 which contains union-security and dues-
checkoff clauses. Maintenance of these contract clauses en-
courages membership in Local 270 and discourages member-
ship in other labor organizations. Triangle Sheet Metal Works
Division, 237 NLRB 364 (1978).
Respondent Red & Tan argues in its brief that its contract
with Local 270 covered multiple worksites with a single bar-
gaining unit and that Red & Tan may have been legally re-
quired to recognize Local 270 when it took over the Putnam
County work. Suffice it to say that no shred of evidence and
no arguments were presented at the instant hearing to show
that Red & Tan has more than one work location nor that
Red & Tan has any employees other than the ones providing
service to Putnam County out of the Fair Street location. The
contract between Red & Tan and Local 270 does not shed
any light in this area. General Counsel having presented a
prima facie case that it was unlawful to recognize Local 270
before any employees were hired, the burden then shifted to
Respondent to show that it did indeed have other locations
and other employees and to make the case that the Putnam
County employees were part of a large bargaining unit. This
it utterly failed to do.
Similarly, Respondent Red & Tan argues that General
Counsel had a duty to introduce any authorization cards for
Local 270 signed by employees in order to show that Local
270 did not have a majority when it was recognized on No-
vember 16, 1992. However, the record evidence shows that
Red & Tan had no unit employees on November 16, 1992:
therefore, it was unnecessary to show, additionally, that a
majority of cards for Local 270 were not signed as of that
date.
The evidence shows that employees who were hired in De-
cember 1992, and January 1993, were told by supervisors
and managers of Respondent that they had to sign authoriza-
tion cards for Local 270 in order to work for Red & Tan
and that if they did not belong to Local 270 they could not
work for Red & Tan. The evidence shows that Red & Tan
enforced the union-security provisions of the contract by de-
ducting dues from the employees’ paychecks and remitting
the sums to Local 270. By these actions Respondent violated
Section 8(a)(3), (2), and (1) of the Act. A.M.A. Leasing, 283
NLRB 1017 (1987).
General Counsel contends that Red & Tan did not hire any
ATC coach drivers because those employees were full mem-
bers of Local 456. In support of this allegation, General
Counsel points to the fact that Deacon told Hooten that Re-
spondent had thrown out prior applications submitted by
ATC employees and that in February 1993, Morris said that
former ATC coach drivers would not be considered for em-
ployment by Red & Tan. However, the record shows that
ATC coach driver Bob Simmons was hired by Red & Tan
and that Bruce Acisela, who had driven a van for ATC but
later had been a coach driver, was hired as a coach driver
by Red & Tan. Additionally, some weeks before the instant
hearing, Sands and Moore, both former ATC coach drivers,
were hired by Red & Tan. Further, the earlier applications
may have been thrown out for any one of a number of rea-
sons; discarding those applications does not show that Red
& Tan was targeting the ATC coach drivers as applicants it
would not hire. Moreover, Morris’ statement that ATC coach
drivers would not be employed by Red & Tan is belied by
the fact that Respondent hired four ATC coach drivers. Fi-
nally, it has not been shown that any ATC coach drivers ap-
plied for employment with Red & Tan and were rejected. I
note that Local 456 did not purport to make application on
behalf of the coach drivers for employment with Red & Tan.
I conclude that General Counsel has not made out a prima
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Boards Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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.’’
facie case that Red & Tan refused to consider the former
ATC coach drivers for employment nor that Red & Tan re-
fused to hire the coach drivers.
CONCLUSIONS OF LAW
1. By executing a collective-bargaining agreement with
Local 270 and recognizing Local 270 as the exclusive rep-
resentative of its employees before it hired any employees,
Respondent violated Section 8(a)(2) and (1) of the Act.
2. By executing and maintaining in effect, at a time when
Local 270 did not represent an uncoerced majority of Re-
spondent’s employees, the contract with Local 270 including
union-security and dues-checkoff clauses, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
3. By informing its employees that they must join Local
270 and threatening them with discharge if they did not join
Local 270, and by deducting dues from employees’ pay-
checks and remitting the sums to Local 270, Respondent vio-
lated Section 8(a)(3), (2), and (1) of the Act.
4. General Counsel has failed to prove that any other vio-
lations of the Act were committed.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent must reimburse its present and former employ-
ees for all initiation fees, dues, and other moneys which may
have been exacted from them on behalf of Local 270, with
interest as 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 recommended8
ORDER
The Respondent, Red & Tan Charters, Inc., Carmel, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Assisting or supporting Local 270 by recognizing or
bargaining with such labor organization as the exclusive rep-
resentative of its employees for the purpose of collective bar-
gaining unless and until Local 270 is certified by the Board
as the collective-bargaining representative of its employees
pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any force and effect to the col-
lective-bargaining agreement between Respondent and Local
270 dated November 16, 1992, or any extension or modifica-
tion thereof; provided, however, that nothing in this Order
shall authorize or require the withdrawal or elimination of
any wage increase or other benefits, terms, and conditions of
employment which may have been established pursuant to
the performance of the contract.
(c) Withholding from the pay of any of its employees
union dues or other union fees or assessments which have
been deducted because of any obligation of membership in
Local 270, and paying to Local 270 any dues, fees, or as-
sessments which have been deducted from the pay of its em-
ployees.
(d) Informing its employees that they must join Local 270
in order to work for Red & Tan and threatening them with
discharge if they do not join Local 270.
(e) Distributing union authorization cards to employees
and soliciting them to sign union authorization cards.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 270
as the collective-bargaining representative of its employees
unless and until Local 270 has been duly certified by the
Board as the exclusive representative of such employees.
(b) Reimburse all former and present employees for all ini-
tiation fees, dues, assessments, and other moneys, if any,
paid by or withheld from them, with interest in the manner
provided in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts due under the terms of this Order.
(d) Post at its Fair Street facility in Putnam County copies
of the attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
731RED & TAN CHARTERS
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT assist or support Local 270 by recognizing
or bargaining with it as the exclusive representative of our
employees unless and until Local 270 is certified by the Na-
tional Labor Relations Board as the collective-bargaining
representative of our employees.
WE WILL NOT maintain or give any force or effect to the
collective-bargaining agreement with Local 270 dated No-
vember 16, 1992; provided, however, that we shall not with-
draw or eliminate any wage increase or other benefits, terms,
and conditions of employment which may have been estab-
lished pursuant to the performance of the contract.
WE WILL NOT withhold from the pay of our employees
union dues or other union fees or assessments which have
been deducted because of any obligation of membership in
Local 270, and WE WILL NOT pay to Local 270 any dues,
fees, or assessments which have been deducted from the pay
of our employees.
WE WILL NOT inform our employees that they must join
Local 270 in order to work for Red & Tan and WE WILL NOT
threaten our employees with discharge if they do not join
Local 270.
WE WILL NOT distribute union authorization cards to our
employees and solicit them to sign such cards.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from
Local 270 as the collective-bargaining representative of our
employees unless and until Local 270 has been duly certified
by the National Labor Relations Board as the exclusive rep-
resentative of such employees.
WE WILL reimburse all former and present employees for
all initiation fees, dues, assessments, and other moneys, if
any, paid by or withheld from them, with interest.
RED & TAN CHARTERS, INC.