Royal Coach Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1037 (N.L.R.B. 1987)

ROYAL COACH LINES
Royal Coach Lines , Inc. and Local 1181-1061,
Amalgamated Transit Union , AFL-CIO. Case
1-CA-19001
5 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 April 1983 Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief
to the General Counsel's exceptions.
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, and
conclusions only to the extent consistent with this
Decision and Order.
The General Counsel excepts to the judge's con-
clusion that the Respondent did not violate Section
8(a)(5) and (1) of the Act by refusing to recognize
and bargain with the Union after it had voluntarily
granted the Union recognition. We find merit in
this exception.
The judge found that the Respondent voluntarily
executed an agreement recognizing the Union on
11 May 1982. He further found that Steven and
Donna DiPaulo, the son and daughter of the Re-
spondent's president and sole owner, were not em-
ployees within the meaning of Section 2(3) of the
Act and should not be included in the unit . There-
fore, in accord with the stipulation of the parties,
there were 53 employees employed by the Re-
spondent in the appropriate unit as of the payroll
period ending 13 May 1982.1
The judge also found that 29 employees, a ma-
jority of the employees in the appropriate unit, had
signed valid authorization cards between 29 April
and 11 May 1982 designating the Union as their
i The Respondent admitted , and the judge accordingly found, that a
unit of all full-time and regular part-time school bus drivers , mechanics,
and shop employees employed by the Respondent at its Yonkers, New
York facility is an appropriate unit for collective bargaining within the
meaning of Sec . 9(b) of the Act
The judge cited National Transportation Service, 240 NLRB 565 (1979),
for his conclusion that the above unit was appropriate Our recent deci-
sions in Res-Care, Inc, 280 NLRB 670 (1986), and Long Stretch Youth
Home, 280 NLRB 678 ( 1986), clarified the principles under which the
Board may, in exercising its discretion , decline to assert jurisdiction over
an employer because of its relationship to an entity exempt from our ju-
risdiction Here, however, the Respondent admitted the Board 's jurisdic-
tion at the hearing, and there were no exceptions to the judge' s finding
that the Board should assert jurisdiction over the Respondent Thus we
need not pass on the discretionary jurisdictional issue in this case Spring-
field Transit Management , 281 NLRB 72 (1986)
1037
collective-bargaining representative. He neverthe-
less concluded that the Respondent did not act un-
lawfully in refusing to recognize or bargain with
the Union following the Union's 13 May 1982 bar-
gaining request. The judge pointed out that six of
the Union's authorization cards, without which the
Union would not have had a majority, were dated
11 May 1982, and that there was no evidence con-
cerning whether these cards were signed before or
after the recognition agreement was executed. Ac-
cordingly, the judge concluded that the General
Counsel had not established that the Union repre-
sented a majority of employees in the appropriate
unit at the time of the recognition agreement. He
therefore recommended that the complaint be dis-
missed.
Contrary to the judge's allocation of the burden
of proof, however, it is not incumbent on the Gen-
eral Counsel to establish here that the Union in fact
enjoyed majority support when the Respondent
voluntarily recognized it. Rather, in an 8(a)(5) pro-
ceeding such as this, the burden is on the respond-
ent, the party seeking to escape the bargaining obli-
gation normally arising from voluntary recognition,
to adduce affirmative evidence proving the union's
lack of majority at the time of recognition. Fertiliz-
er Co. of Texas, 254 NLRB 1382 fn. 2 (1981); Tri-
City Meats, 231 NLRB 768 fn. 2 (1977); E. L. Rice
& Co., 213 NLRB 746 (1974); Moisi & Sons Truck-
ing, 197 NLRB 198 fn. 2 (1972). No such evidence
was presented here. The fact that the Union did
not obtain authorization cards from a majority of
the employees until the day the Respondent grant-
ed recognition does not, in our view, constitute af-
firmative evidence proving that the Union did not
enjoy majority status at the time of recognition;
rather, such a conclusion on these facts is merely
speculative. Accordingly, we find that the Re-
spondent incurred an obligation to bargain with the
Union by voluntarily recognizing it on 11 Mar- h4l
1982.2
2 Ladies Garment Workers (Bernhard-Altman Texas Corp) v. NLRB,
366 U S 731 (1961), and R.J.E. Leasing Corp., 262 NLRB 373 (1982), on
which the judge relied in concluding that, to establish an 8(a )(5) viola-
tion, the General Counsel must prove that the Union had majority status
when voluntarily recognized , are inapposite Both cases involved an al-
leged 8(a)(2) violation , the gravamen of which is the recognition of a
nonmajority union Stoner Rubber Co , 123 NLRB 1440 (1959), and
NLRB v Dayton Motels, 474 F 2d 328 (6th Cir 1973), also relied on by
the judge, do not support the proposition that the burden rests on the
General Counsel in every refusal -to-bargain case to establish the Union's
majority in fact In Stoner the Board held that the General Counsel's ini-
tial burden to show majority status could be satisfied by presumptions
arising from the union's certification, and in Dayton the court held that a
rebuttable presumption of majority status arose from an expired collec-
tive-bargaining agreement Likewise, the General Counsel has carried the
initial burden here by establishing that the Respondent voluntarily recog-
nized the Union
282 NLRB No. 145
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has consistently held that where, as
here, an employer has validly extended voluntary
recognition to a union, the union is entitled to an
irrebuttable presumption of majority status until a
reasonable time for bargaining has elapsed. Rock-
well International Corp., 220 NLRB 1262, 1263
(1975); Keller Plastics Eastern, 157 NLRB 583, 587
(1966). A reasonable time is not measured by the
number of days or months spent in bargaining, but
by what transpired and what was accomplished in
the bargaining sessions ., Brennan 's Cadillac, 231
NLRB 225 (1977). Once a reasonable time for bar-
gaining has elapsed, the union enjoys a rebuttable
presumption of majority status. This presumption
can be rebutted by the employer's showing that at
the time of its refusal to bargain , the union did not
have majority status in fact, or that the employer
had a good-faith doubt of the union's majority
status based on objective factors . See generally
Bartenders Assn. of Pocatello, 213 NLRB 651 (1974);
Cain's Generator Co., 237 NLRB 1198 (1978).
It is undisputed that the Respondent first refused
to bargain with the Union about 16 May 1982, 5
days after voluntarily recognizing the Union, and
continued to refuse thereafter . The parties were
prevented by the Respondent's continuing refusal
to bargain from engaging in any bargaining at all.
We find , therefore, that a reasonable time for bar-
gaining, within the meaning of Brennan 's Cadillac,
has not elapsed.
The judge found that by letter dated 16 July
1982, the Respondent informed the Union that the
employees did not want to join the AFL-CIO. He
further found that attached to the letter was a peti-
tion signed by 42 unit employees stating that they
did not wish to be represented by any union. The
petition was dated 1 June 1982, but there is no tes-
timony pinpointing the date on which the petition
was given to the Respondent. Also, the record
contains a 2 August letter to the Union from the
Respondent 's attorney stating that the Respondent
was withdrawing recognition from the Union as a
result of the petition.
We need not decide whether the employee peti-
tion could support a good-faith doubt as to the
Union's majority status or a finding of no majority
in fact . A reasonable time for bargaining had not
elapsed . Absent a threshold finding that a reasona-
ble time for bargaining has elapsed, evidence of
actual employee dissaffection with the Union is ir-
relevant . Brennan 's Cadillac, above, 231 NLRB at
226.
Accordingly, we conclude that by refusing to
bargain with the Union on and after 16 May 1982,
and by withdrawing recognition from the Union on
2 August 1982, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act. Having found that the Respondent has violat-
ed Section 8(a)(5) and ( 1), we shall order it to
cease and desist , to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.3
ORDER
The National Labor Relations Board orders that
the Respondent, Royal Coach Lines, Inc., Yonkers,
New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
with Local 1181-1061, Amalgamated Transit
Union, AFL-CIO, as the exclusive collective-bar-
gaining representative of the employees in the ap-
propriate bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request , bargain with
Local 1181-1061, Amalgamated Transit Union,
AFL-CIO, as the exclusive collective -bargaining
representative of the employees in the following
appropriate unit on terms and conditions of em-
ployment and , if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time school bus
drivers, mechanics , and shop employees em-
ployed by Royal Coach Lines, Inc., at its Yon-
kers, New York, facility.
(b) Post at its facility in Yonkers, New York,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by
the Respondent's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be " taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
s In view of our disposition of this case, we find it unnecessary to con-
sider the General Counsel's contention that the Union did not demand
recognition on 10 May 1982 , as the judge found, but on 11 May 1982.
4 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 Nation-
al 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 "
ROYAL COACH LINES 1039
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
I would remand this proceeding to the judge for
further consideration of the jurisdictional issue. See
Res-Care, Inc., 280 NLRB 670 (1986), and Long
Stretch Youth Home, 280 NLRB 678 (1986).
APPENDIX
tary recognition agreement entered into by Respondent
with the Union, Respondent failed and refused to recog-
nize or bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees and that,
by engaging in such conduct, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
Briefs were filed by the General Counsel and counsel
for Respondent. On consideration of the entire record,
the beefs, and my observation of the demeanor of the
witnesses, I make the following
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Local 1181-1061, Amalgamated Transit
Union, AFL-CIO, as the exclusive representative
of employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain
with the Union and put in writing and sign any
agreement reached on terms and conditions of em-
ployment for our employees in the bargaining unit:
All full-time and regular part-time school bus
drivers, mechanics, and shop employees em-
ployed by Royal Coach Lines, Inc., at its Yon-
kers, New York, facility.
ROYAL COACH LINES, INC.
Carole Sobin , Esq., for the General Counsel.
Robert I. Eber, Esq. and Joseph F. Nocca, Esq., for the
Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on January 31 and February 1,
1983, in New York, New York.
On July 21, 1982, Local 1181-1061, Amalgamated
Transit Union, AFL-CIO (the Union), filed a charge
against Royal Coach Lines, Inc. (Respondent), alleging
that since about June 21, 1982, Respondent has refused
to bargain collectively with the Union, the duly recog-
nized bargaining representative of Respondent's employ-
ees in an appropriate unit, in violation of Section 8(a)(1)
and (5) of the Act. On August 20, 1982, pursuant to an
investigation of the above charge, the Region issued a
complaint alleging in substance that following a volun-
FINDINGS OF FACT
1. COMMERCE
Respondent is a New York corporation with its office
and place of business located in Yonkers, New York,
where it is and has been engaged at all times material, in
the business of providing schoolbus transportation. In the
course and conduct of such business operations, Re-
spondent annually derives gross revenues in excess of
$500,000, and purchases and receives at its Yonkers,
New York facility goods and products valued in excess
of $10,000 annually, directly from firms located outside
the State of New York. Respondent admits, and I find,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.'
II. LABOR ORGANIZATION
Respondent admits, and I find, that the Union is now
and has been at all times material a labor organization
within the meaning of Section 2 (5) of the Act.2
III. RESPONDENT'S BUSINESS OPERATION
Respondent operates a schoolbus transportation serv-
ice from its facility in Yonkers, New York. At all times
material, Beniamino F. DiPaolo has occupied the posi-
tion of Respondent president and has at all times material
been the sole stockholder of Respondent.
Respondent owns over 50 schoolbuses and employs 55
employees in a unit consisting of "all full time and regu-
lar part time schoolbus drivers, mechanics, and shop em-
ployees employed by Respondent at its Yonkers, New
York facility."3 Included in this complement of the em-
ployees are Donna and Steven DiPaolo, the daughter
and son of Ben DiPaolo Donna DiPaolo is 22 years of
age and Steven DiPaolo is 18 years of age. Both individ-
uals reside at the home of Ben DiPaolo.
' Respondent 's answer initially denied the jurisdictional allegations set
forth in the complaint During the course of the hearing , Respondent
amended its answer and admitted pars 2 and 3 of the complaint , the ju-
risdictional allegations herein
2 Respondent's answer initially denied labor organization status of the
Union During the course of the hearing , Respondent admitted par 4 of
the complaint , the labor organization status allegation
9 In Respondent's answer, Respondent initially denied the above unit
alleged in par 6(a) of the complaint as a unit appropriate for the purpose
of collective bargaining within the meaning of Sec 9(b) of the Act
During the course of the hearing, Respondent admitted the unit to be ap-
propriate within the meaning of Sec 9(b) of the Act, and amended his
answer accordingly
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that Donna and Steven DiPaolo
are employees within the meaning of the Act and should
be included in the unit described above. The General
Counsel contends that Donna and Steven DiPaolo
should be excluded from any unit of employees pursuant
to Section 2(3) of the Act. The parties have stipulated
that excluding Donna and Steven DiPaolo, over which
there is a dispute, Respondent employed as of the payroll
period ending May 13, 1982, 53 employees in the above
unit.
IV. THE UNION'S ORGANIZATION CAMPAIGN
Richard Eppolito, organizer and business representa-
tive for the Union, testified that sometime in late April
1982 he received a telephone call from an employee of
Respondent inquiring about representation. About April
27, in response to this telephone call, Eppolito visited
Respondent's facility and spoke to Ben DiPaolo in his
office. (Eppolito had known DiPaolo in 1962 and 1963
through summer employment at Respondent's facility.)
During this visit, Eppolito informed DiPaolo that he was
here to organize the shop and that he intended to meet
with employees and obtain authorization cards. DiPaolo
told him to feel free to organize his employees. Thereaf-
ter, between this meeting and May 11, Eppolito visited
Respondent's facility on several occasions, met with em-
ployees, and obtained 29 authorization cards. The parties
stipulated that the Union obtained 27 valid authorization
cards dated between April 29 and May 11, 1982. The
General Counsel additionally contends the union authori-
zation cards of employee Joan Ryer, which is undated,
and that of Tony Wilson, which has no signature next to
that portion of the Union's authorization card designated
for the employee's signature, are valid union authoriza-
tion cards. Respondent disputes this contention.
Joan Ryer, employed by Respondent as a driver, testi-
fied that sometime in late April or early May 1982 Eppo-
lito was present at Respondent's facility and handed her
an authorization card as she entered the facility. She tes-
tified that she walked into Respondent's facility, read the
card, and filled out the information requested on the
card, which included her name, social security number,
job location, job title, home address, and home phone
number. She thereafter signed the authorization card but
neglected to date the card. During the hearing Ryer au-
thenticated her card and her signature.
Employee Tony Wilson testified that he is employed
by Respondent as a driver. Wilson testified that he re-
ceived a union authorization card about May 6 from em-
ployee Myron Garland. He thereafter read the card and
filled out May 6 on that portion of the card designated
"date" and filled in his social security number, and print-
ed his name on that portion of the card designated
"name (print)." However, he denies filling in the remain-
ing portions of the authorization card, which were ap-
parently filled in accurately. As to that portion of the au-
thorization card designated "signature," this was left
blank. However, Wilson testified that his customary sig-
nature consists of his printed name. This testimony is
corroborated by his printed signature on his W-4 form
and his signature in the same manner on the employee
petition described below.
On May 10, Eppolito met with DiPaolo in the office
of the Yonkers facility.4 During this meeting, Eppolito
informed DiPaolo that he had obtained authorization
cards from a majority of his employees and that DiPaolo
could grant the Union voluntary recognition at this time
or the Union would file a petition with the National
Labor Relations Board for an election. DiPaolo asked
Eppolito what a recognition agreement was and Eppolito
told him it was an agreement by which he would recog-
nize the Union as the sole bargaining agent of his em-
ployees. DiPaolo asked specifically what such agreement
would contain. Eppolito told DiPaolo that he had no
recognition agreement forms with him and was permit-
ted by DiPaolo to telephone his office where he spoke to
Alice Hallogan, a union administrative assistant. Hallo-
gan read to him the language contained in the Union's
standard recognition agreement. Eppolito wrote down
the language, word for word on yellow paper, in long
hand, and gave the handwritten copy to DiPaolo, in-
formed Eppolito that he would confer with his attorney,
and that he could pick up the agreement the following
day if he decided to sign. He then asked Eppolito what
would follow after signing a recognition agreement. Ep-
polito informed him he would meet with his employees,
formulate contract demands, and then would get togeth-
er with him and negotiate a collective-bargaining agree-
ment.
DiPaolo's version of this meeting is considerably dif-
ferent from that of Eppolito. DiPaolo testified that Ep-
polito informed him that be had some papers for him to
sign at which time he produced two documents explain-
ing that one was a recognition agreement for Respondent
Royal Coach and one for Hartsdale Bus.5 DiPaolo then
explained to Eppolito that he thought he (Eppolito) was
not going to organize the Hartsdale employees and Ep-
polito replied okay and ripped up,the Hartsdale agree-
ment.
Eppohto denied organizing the Hartsdale employees,
preparing a recognition agreement for Hartsdale employ-
ees, or ripping up such recognition agreement.
According to DiPaolo, Eppolito then handed him a
typed single sheet of paper and informed him it was a
document indicating the employees wanted a union shop.
DiPaolo testified that he "just took it [the recognition
agreement] looked at it, and signed it."c
4 During the hearing, there was some dispute about the date of this
meeting. Eppohto initially testified the meeting took place about May 10
or 11 However, at another point in his testimony he testified the meeting
may have taken place about May 4. An examination of his diary indicates
an appointment scheduled with DiPaolo on May 10 at 9 30 a.m. There
are no other diary entries indicating other appointments DiPaolo had no
recollection about when this meeting took place Based on Eppolito's tes-
timony, coupled with the diary entry, I conclude the meeting took place
as set forth in the diary, on May 10.
5 Hartsdale Bus is a corporation purchased by DiPaolo in 1976 and op-
erated by DiPaolo from his Yonkers facility. The Hartsdale operation is
confined exclusively to transporting commuters from various locations in
Westchester County to and from railroad stations. In connection with
this operation, Hartsdale operates eight buses used exclusively for such
transportation. It appears that the employees employed by Hartsdale do
not have any interchange with employees employed by Respondent's
schoolbus operation
6 This document signed by DiPaolo is set forth in full below
ROYAL COACH LINES 1041
I
I credit the testimony of Eppolito about the events
that took place during the May 10 meeting between he
and DiPaolo.
Eppolito generally impressed me as a candid and
truthful witness. Although he was not certain about the
date of this meeting and the dates of other occurrences,
his recollection of dates and other details was vastly su-
perior to that of DiPaolo who had virtually no recollec-
tion of the dates at all and a somewhat sketchy recollec-
tion of details. Additionally, Eppolito's testimony was
corroborated by documentation. For example, his diary
entry indicated a May 10 meeting with DiPaolo.
DiPaolo generally impressed me as an extremely unre-
liable witness whose testimony is not worthy of belief. I
was unimpressed by DiPaolo's demeanor. Throughout
his testimony he was visibly, nervous. Additionally, his
testimony was generally vague. He was totally unable to
recall the dates of significant meetings and other events.
Moreover, his testimony was inconsistent on key issues.
For example, he initially testified that during the May 10
meeting, Eppolito handed him an agreement, which he
looked at and signed on,the spot- This agreement, which
was identified by him, was a typed agreement. However,
at another point in his testimony when describing this
meeting his attorney asked him whether Eppolito had
left any "handwritten" documents for him to sign and
DiPaolo replied, "When he brought the two up to the
office," referring to the Royal Coach and Hartsdale
agreements. Further, his testimony that he "just took it
(the recognition agreement) looked at it and signed it," is
totally inconsistent with subsequent testimony that he
always consulted with his attorney, Joseph F. Nocca,
before signing legal documents and other legal, matters.
Additionally, I find his representation that he signed this
recognition agreement based on Eppolito's representation
that' the document merely indicated the employees
wanted a union shop and on his relationship with Eppo-
lito whom he had known briefly as a part-time employee
during the summers of 1962 and 1963 to be incredible. I
find it unbelievable that the president of a! company the
size of Respondent would sign a legal document offered
to him by a union representative without carefully read-
ing and fully understanding the significance of the docu-
ment that he was signing.
As of May 10, the date Eppolito first demanded recog-
nition, the maximum number of authorization cards pos-
sessed by him could not have numbered more than 23. In
this connection, of the 27 authorization cards stipulated
by the parties to be valid, 6 of those cards were dated
May 11. The authorization card of Joan Ryer was undat-
ed and tllat of Tony Wilson was dated May 6. Signifi-
cantly, ;there is no evidence in the record about when, on
May 11, these cards were signed or when Eppolito ob-
tained them.
Eppolito thereafter credibly testified that on May 11
or 12 he returned to Respondent's facility and met brief-
ly with DiPaolo. There is no testimony as to the time of
day this meeting took place. During this meeting Di-
Paolo handed him a typed recognition agreement dated
May 11, 1982, and signed by DiPaolo. DiPaolo admits
signing, this document, although, as set forth above, testi-
fied that it 'was signed by him on May 10. 1 conclude the
recognition dated May 11 was signed by DiPaolo some-
time on that day. However, there is no evidence in the
record when on May 11, the agreement was signed. The
document, which has no letterhead, sets forth as follows:
Local 1181-1061, Amalgamated ' Transit Union,
AFL-CIO
101-49 Woodhaven Boulevard , Ozone Park, New
York 11416
Attention: Mr. John Ambrosio, President
Gentlemen:
This is to advise you that Royal Coach,, Inc.
hereby recognizes Local 1181-1061, Amalgamated
Transit Union, AFL-CIO as the collective bargain-
ing representation for all full-time and regular part
time employees and shop employees employed by
Royal Coach, Inc. at its Yonkers facility, excluding
all supervisors, guards and clerks.
We agree to commence negotiations with you
immediately for the purpose of entering into a col-
lective bargaining on behalf of the aforesaid em-
ployees.
Very truly yours,
!s! Ben DiPaolo
Thereafter by a letter with the union letterhead dated
May 13, 1982, the Union responded as follows:
Pursuant to your letter of recognition dated May
11, 1982 (a copy of which is enclosed), this Union is
the duly certified representative of all full time and
regular part time drivers and shop employees em-
ployed by Royal Coach, Inc. at its Yonkers facility,
excluding all supervisors , guards and clerks.
Request is hereby made for a meeting as soon as
possible to discuss wages, hours and other condi-
tions of employment for the employees in the bar-
gaining unit . I would appreciate hearing from you
for the purpose of setting up a mutually agreeable
date.
/s! John Ambrosio
Union President
I conclude that this letter, which was received by Re-
spondent, additionally corroborates Eppolito's testimony
about the events that took place during ' the May 10
meeting . In this connection, the Union's letter refers to
Respondent's letter of recognition dated May 11, 1982.
This reference would support Eppolito's testimony that
he left with DiPaolo a handwritten copy of the recogni-
tion agreement, and that DiPaolo thereafter typed and
signed the recognition agreement dated May 11. Clearly,
the Union would have had no reason at this point in time
to fabricate such a reference in its May 13 letter.
About May 16, Eppolito telephoned DiPaolo and told
him he wanted to meet with him and commence negotia-
tions for a collective-bargaining agreement . DiPaolo in-
formed Eppolito that his employees had informed him
they did not want union representation any longer and
under these circumstances he would not agree to negoti-
ate with the Union.
1042 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
About June 10, Eppolito was supervising a strike at an
unrelated facility located on the same street as,Respond-
ent's facility. At one point during the day, Eppolito met
briefly with DiPaolo while DiPaolo was driving his car
past Eppolito. DiPaolo stopped and Eppolito reminded
DiPaolo that he had signed a recognition agreement, and
asked him to negotiate a collective-bargaining agreement.
DiPaolo stated that his employees no longer wanted
union representation.
On July 16, Joseph F. Nocca, DiPaolo's attorney, sent
a letter dated July 16 to the Union, which sets forth as
follows:
I represent Royal Coach Lines, Inc. Mr. DiPaolo
asked me to contact you to advise you that the em-
ployees of Royal Coach Lines, Inc. do not wish to
join the AFL-CIO.
I have enclosed a copy of a document that the
employees have themselves prepared and signed de-
testing to the foregoing.
Accompanying the above letter was a petition drawn
up on yellow legal paper and dated June 1, 1982. The
petition set forth as follows:
We the undersigned employees of Royal Coach
Line, Inc. of 798 Nepperhan Avenue, Yonkers,
New York are very disgruntled with the attempted
infiltration of the Union into our company. We the
undersigned wish not to be represented by any
Union.
The petition was signed by 42 unit employees.' The
General Counsel does not allege that the above petition
was unlawfully coerced.
Analysis and Conclusions
As set forth above, Respondent admitted that a unit
consisting of "all full time and regular part time school
bus drivers, mechanics, and shop employees employed
by Respondent at its Yonkers, New York facility" was
an appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act. Ac-
cordingly, I so conclude. Soy City Bus Services, 249
NLRB 1169 (1980); National Transportation Service, 240
NLRB 565 (1979).
The parties have stipulated that 53 employees as de-
fined by Section 2(3) of the Act were employed by Re-
spondent in the above-described unit as of the payroll
period ending May 13, 1982. Additionally, Respondent
contends that Donna and Steven -DiPaolo, the daughter
and son of sole owner Ben DiPaolo, are employees
within the meaning of Section 2(3) of the Act and should
also be included in the unit. The evidence established
that Ben DiPaolo is the sole shareholder and owner,
president, and general manager of Respondent. In short,
he owns and runs Respondent's entire operation. The
evidence further established that Donna and Steven Di-
Paolo reside in their father's home.
7 Two of these employees began working after the payroll period
ending May 13 The other 40 employees were employed as of the payroll
period ending July 13.
Section 2(3) of the Act, which defines the term "em-
ployee," provides inter alia. that employees "shall not in-
clude any individual employed by his parent." In this
connection the Board has held that children of the prin-
cipals of closely held corporations, because of their rela-
tionship with the substantial owner of this type enter-
prise, have interests more closely identified with manage-
ment than with their fellow employees. Thus, they are
excluded as employees in any unit found appropriate for
the purpose of bargaining. Cerni Motor Sales, 201 NLRB
918 (1973). Accordingly, I conclude that Donna and
Steven DiPaolo are not employees within the meaning of
Section 2(3) of the Act and should be excluded from any
unit found appropriate. Moreover, inasmuch as the evi-
dence establishes that the challenged employees are off-
springs of a, substantial owner who is active in the man-
agement of the operation and that the individuals live at
home with their parents, I would, in any event, conclude
that they lack sufficient community of interest with unit
employees to warrant their inclusion in a unit of employ-
ees. Cerni Motor Sales, supra.
During the course of the hearing, the parties stipulated
that 27 authorization cards obtained by the Union were
valid cards. These cards were all dated between April 29
and May 11, 1982. In view of this stipulation, I conclude
that the parties admit the genuineness of the signatures
and the accuracy of the dates set forth on the authoriza-
tion cards. Inasmuch as the authorization cards are on
their face valid designations for collective-bargaining
representation, the signatures conceded to be those of the
employees who signed, and in the absence of any evi-'
dence of fraud or misrepresentation, I find that the 27
employees who signed such cards designated the Union
as their collective-bargaining representative.
The General Counsel contends additionally that the
authorization card of employee Joan Ryer; which is un-
dated, and that of Tony Wilson, which is dated May 6,
1982, should be added to the Union's total of 27 cards
and a finding made that the Union obtained 29 valid au-
thorization cards. Counsel for Respondent contends the
cards of Ryer and Wilson should not be counted.
As to the authorization bard signed by Joan Ryer, the
evidence established that she received this card sometime
during the Union's organization campaign at which time
she filled it in and,signed it. However, she neglected to
insert the date. In view of the evidence that established
that all authorization cards, obtained by the Union were
dated between April 29 and May 11, I conclude that
Ryer executed her card sometime during this period. J.
P. Stevens & Co., 244 NLRB 407, 427 (1979). I further
conclude, in view of Ryer's testimony that she filled out
and signed the authorization card, that she must have
read it. In the absence of any evidence that Ryer was
told anything that was inconsistent with the expressed
language of the card, I find her card a valid designation
of the Union. Curlee Clothing Co., 240 NLRB 355, 369
(1979); Cumberland Shoe Corp., 144 NLRB 1268-1269
(1963), enfd. 351 F.2d 917 (6th Cir. 1965).
As to the authorization card of Wilson, he testified,
that he filled out the card and that he printed his name
on the card because he usually prints his ,signature. He
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specifically testified that he considered his printed name
to be his signature and identified this card as his card.
Such testimony is corroborated by his printed signature
on the employee petition described above and on his W-
4 form, both of which documents have been admitted
into evidence. In view of this evidence, and in view of
his testimony that he filled out the above card and the
absence of any evidence that would establish that Wilson
was told anything that was inconsistent with the express
language on the card, I find that his 'card was a valid
designation of the Union. Curlee Clothing Co., supra at
371; Cumberland Shoe Corp.,, supra.
An analysis of the authorization cards obtained by the
Union established that as of May 10, the date of the
Union's demand for recognition, the Union had obtained
a, maximum of only 23 authorization cards in a unit of 53
employees; less than a majority of employees. In this
connection, an analysis of the authorization cards ob-
tained by the Union throughout its campaign establishes
that 6 of its total 29 authorization cards obtained were
dated May 11, 1982.8 Thus, notwithstanding Eppolito's
representation to DiPaolo on May 10, the Union did not
at the time recognition was demanded, represent a ma-
jority of Respondent's employees.
The evidence established that Respondent executed the
recognition agreement sometime on May 11. There is no
evidence whatever about, when on May 11 Respondent
executed the recognition agreement. Similarly, there is
no evidence contained in this record about when the six
employees described above, whose authorization cards
were dated May 11, signed such cards or the circum-
stances under which they were received by the Union.
Thus, it cannot be established on the 'basis of the evi-
dence in this record that the Union had achieved a ma-
jority status at the time Respondent executed its recogni-
tion agreement. It is, entirely possible that six authoriza-
tion cards were obtained by the Union following the exe-
cution of the recognition agreement by Respondent.
The Supreme Court in Ladies Garment Workers Bern-
hard-Altmann Texas Corp., 366 U.S. 731 (1961), upheld a
Board and court of appeals order finding a violation of
Section 8(a)(1) and (2) in a situation in which the parties
had entered into a memorandum of understanding recog-
nizing a honmajority union , and providing that a formal.
agreement would be drafted thereafter and signed. At
the time of the execution of the formal agreement, the
s The authorization cards dated May 11, 1982, were signed by employ-
ees Jean DeLaut, Leonard Massello, Adolph Pantore, Jo Ann Roberts,
Ronald Smith, and Peter Writh.
union did in fact represent a majority of employees, but
this fact was considered irrelevant by the court of ap-
peals and the Supreme Court. In this connection, the Su-
preme Court held:
At the outset, we reject as without relevance to
our decision the fact that, as of the execution date
of the formal agreement on October 10,, petitioner
represented a majority of the employees. The Court
of Appeals indicated, the recognition of the minori-
ty union on August 30, 1957, was "a fait accompli
depriving the majority of the employees of their
guaranteed right to choose their own representa-
tive." 280 F.2d at 621. It is, therefore, of no conse-
quence that petitioner may have acquired by Octo-
ber 10 the necessary majority if, during the interim,
it was acting unlawfully. Indeed, such acquisition of
majority status itself might indicate that the recogni-
tion secured by the August 30 agreement afforded
petitioner a deceptive cloak of authority with which
to persuasively elicit additional employee support.
366 U.S. at 736. See also R. J. E. Leasing Corp.., 262
NLRB 373 (1982).
It is elementary that in a refusal-to-bargain case, the
General Counsel has the burden of proving the union's
majority. Stoner Rubber Co., 123 NLRB 1440 (1959);
NLRB v. Holiday Inn of Dayton, 474 F.2d 328 (6th Cir.
1973). In Holiday Inn of Dayton, the court stated:
In order to establish that an employer's with-
drawal of recognition and refusal to bargain with an
incumbent union transgresses Section 8(a)(5) of the
Act, the burden of proof is upon the Board to show
that the Union actually represented a majority of
the employees in an appropriate unit. Failure to
prove majority status of the Union relieves an em-
ployer of any duty to bargain.
CONCLUSIONS OF LAW
Accordingly , I conclude that the General Counsel has
failed to meet its burden of proof by establishing that, at
the time the recognition agreement was executed, ' the
Union represented a majority of employees in the unit
found appropriate above. In view of this conclusion, I
conclude that the General Counsel has failed to establish
that Respondent violated Section 8 (a)(1) and (5) of the
Act.
[Recommended Order for dismissal omitted from pub-
lication.]