Ryder Student Transportation Services

National Labor Relations Board - Board Decisions

Jan 12, 2001

333 N.L.R.B. 9 (N.L.R.B. 2001)

RYDER STUDENT TRANSPORTATION SERVICES 9
Ryder Student Transportation Services, Inc. and
School Service Employees Local 284, SEIU.
Case 18–CA–15176
January 12, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On August 14, 2000, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions2
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, Ryder Student Transporta-
tion Services, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Nichole L. Burgess, Esq., for the General Counsel.
Richard H. Allen Jr., Esq., of Memphis, Tennessee, for the
Respondent.
Bruce P. Grostephan, Esq., of Minneapolis, Minnesota, for the
Charging Party.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s findings that the Respondent violated Sec.
8(a)(1) by statements at its May 1999 Burnsville and Como terminal
town hall meetings, Member Hurtgen finds it unnecessary to rely on the
adverse inferences the judge drew against the Respondent for failing to
call corroborative management witnesses.
2 In adopting the judge’s finding that the Respondent unlawfully en-
forced its unwritten no-solicitation/no-distribution rule, Member Hurt-
gen notes that the “female organizer” referred to by the judge in “Sec.
4. Analysis and findings” was an employee of the Respondent’s Snel-
ling facility who was handbilling at another of the Respondent’s facili-
ties. Member Hurtgen further notes that the employees of the various
Minneapolis/St. Paul metro terminals against whom the Respondent
applied its no-solicitation/no-distribution rule are part of a single ap-
propriate unit. See Eagle-Picher Industries, 331 NLRB No. 14, slip op.
at 2, fn. 2 (2000).
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Minneapolis, Minnesota, on April 4,
2000. The charge was filed by the School Service Employees
Local 284, SEIU (Union) against Ryder Student Transportation
Services, Inc. (Respondent)1 on April 12, 1999,2 and was
amended on January 10, 2000. The complaint was issued on
January 27, 2000. 3
The Respondent has an unwritten no-access policy that pro-
hibits employees from entering the property of a terminal where
they do not work and from entering the property of their own
work terminal at times they are not scheduled to work. In the
Minneapolis/St. Paul area, the Respondent has 11 terminals that
provide bus service for transporting children to and from
school. In March 1999, the Union commenced an organizing
campaign at these terminals. On various dates and at various
times in March–April 1999, the Respondent sought to prohibit
employees from distributing union literature at terminals where
they did not work in accordance with its unwritten no-access
rule. Thus, the complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by promulgating, maintaining, and
enforcing an unlawful unwritten no-access rule.4
In May 1999, in the course of the organizing campaign, the
Respondent held several “town hall” meetings to oppose the
Union and to answer employee questions. The complaint al-
leges that at two of these meetings the Respondent’s supervi-
sors/agents promised benefits if the Union was not elected,
threatened that it would not bargain in good faith, and threat-
ened that bargaining would be futile. Thus, the complaint al-
leges that the Respondent violated Section 8(a)(1) of the Act by
1 The unrebutted evidence shows that in July 1999, First Student
Tranportation acquired Ryder Student Transportation Services, Inc.
(Tr. 24.)
2 All dates are in 1999, unless otherwise indicated.
3 At trial, the parties stipulated that on April 15, 1999, the Union
filed a petition in Case 18–RC–16461 to represent the school bus driv-
ers, aides, and wash rack employees at the Respondent’s Minneapo-
lis/St. Paul metro area terminals. On May 26 and 27, 1999, an election
was conducted which the Union lost 664 to 723. In addition, the Gen-
eral Counsel asserts in her posthearing brief at pp. 2–3 that the Union
filed objections to the results of the election, that the Regional Director
found the conduct to be objectionable, and that he recommended that
the election be set aside. The General Counsel further asserts that the
Respondent appealed, and that the Regional Director’s recommendation
was pending before the Board at the time the briefs were submitted.
However, there is no evidence in the record, other than the parties’ brief
stipulation, pertaining to the representation case nor was that case con-
solidated with the instant unfair labor practice case for hearing. I there-
fore deny the General Counsel’s request to take administrative notice of
the representation case proceedings.
4 At trial, the General Counsel’s unopposed motion to amend par. 4
of the complaint and all subsequent paragraphs consistent with the
amendment was granted to add the following names: Tom Larson, Jim
Berneche, and Jeff Cain. The Respondent was also permitted to amend
par. 4 of its answer to admit that Lawrence McDonald, Bruce
Dischinger, Dan Berg, David Brabender, Tom Larson, and Jim Ber-
neche are supervisors and agents of the Respondent within the meaning
of Sec. 2(11) and (13) of the Act.
333 NLRB No. 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
interfering with, restraining, and coercing employees in the
exercise of their Section 7 rights.
The Respondent’s timely filed answer denied the material al-
legations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent,5 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with a principal place of
business in St. Paul, Minnesota, and additional terminals in the
St. Paul/Minneapolis, Minnesota area, is engaged in the bus
transportation of school children. During the calendar year
ending December 31, 1999, in the course of conducting its bus
operations, it purchased and received at the above-referenced
terminals goods valued in excess of $50,000 directly from
points outside the State of Minnesota and received gross reve-
nues in excess of $250,000. The Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Respondent also admits and I find that the Union is a la-
bor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Unwritten No-access Policy
The undisputed evidence shows that since early 1990, the
Respondent has had an unwritten no-access policy that prohib-
its employees from entering the property of a terminal where
they do not work and from entering the property of their own
work terminal at times they are not scheduled to work.6 Ac-
cording to Lawrence McDonald, the Respondent’s director of
labor relations, the policy was promulgated for security and
safety reasons and to reduce workplace violence. He did not
elaborate on the issue. McDonald did not state that there had
been a problem that needed to be addressed or that the unwrit-
ten policy was promulgated as a preventative measure. In any
event, in the last 10 years, circumstances have not prompted the
Respondent to reduce the policy to writing and widely publicize
it. (Tr. 191.)
Instead, the evidence shows that the unwritten policy has not
been widely disseminated among the employees. Contract
Manager Dave Brabender could not explain how the policy was
conveyed to employees. (Tr. 176.) He conceded that unless an
employee was told about the unwritten no-access policy, the
employee would not know that there was a policy or whether

5 The Respondent also filed a posthearing motion requesting leave to
file a reply brief that was denied on the grounds that such briefs are not
provided for by the Board’s Rules and Regulations. The reply brief has
not been reviewed and/or considered. The paragraphs of the motion
pointing out various alleged inaccuracies and alleged misrepresenta-
tions in the General Counsel’s posthearing brief has not been consid-
ered in determining the issues in this case.
6 The Respondent also has a written no-solicitation policy in its em-
ployee handbook that prohibits employees from soliciting and distribut-
ing literature during work hours and in work areas. (R. Exh. 1.) This
written rule is not the subject of any allegation in the complaint.
his conduct was permissible under the policy. (Tr. 177.) Al-
though he testified that the rule applied to any type of activity
(Tr. 150), Brabender stated that in 1999, he did not tell any
employees about the policy other than those involved in the
union campaign. He further conceded that between 1990–1991,
he could not remember telling any employees about the unwrit-
ten policy, other than employees involved in another union
organizing campaign. 7 (Tr. 177.)
In Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board held that a no-access rule applying to off-duty employees
is valid if it:

(1) limits access solely with respect to the interior of the plant
and other working areas; (2) is clearly disseminated to all em-
ployees; and (3) applies to off-duty employees seeking access
to the [facility] for any purpose and not just to those employ-
ees engaging in union activity. Finally, except where justified
by business reasons, a rule which denies off-duty employees
entry to parking lots, gates, and other outside nonworking ar-
eas will be found invalid.

The evidence shows that the Respondent’s unwritten no-
access policy unquestionably fails to meet the first two criteria
of Tri-County Medical Center. The policy does not limit access
solely to the interior of the plant and other working areas and it
has not been clearly disseminated to all employees. The evi-
dence also shows that over the years the policy has been ap-
plied chiefly to employees engaging in union activity.
In addition, other than McDonald’s generalized testimony
about the reason the policy was promulgated 10 years ago,
there is no evidence that the Respondent has, or had, any inci-
dents of workplace violence or any security or safety problems,
which would justify such a broad sweeping rule. Orange Me-
morial Hospital Corp., 285 NLRB 1099 (1987).
I therefore find that the rule is unlawful on its face. It ex-
cludes off-duty employees from all outside nonworking areas
of the Respondent’s property. Accordingly, I find that the Re-
spondent violated Section 8(a)(1) of the Act as alleged in para-
graph 5(a) of the complaint.
B. Enforcement of the Unwritten No-access Policy
Active union supporter Mike Hughes was employed by Re-
spondent as a bus driver at the Snelling terminal location. Dur-
ing the organizing campaign, he traveled during his off-duty
hours to other terminals to distribute union literature, solicit
union authorization cards, and otherwise encourage union sup-
port.
1. Moundsview terminal
On March 30, 1999, Hughes and another Snelling bus driver,
Frank Pahl, arrived at the Moundsview terminal at 5 a.m. to
distribute union literature and solicit authorization cards. Stand-
ing in a designated no parking area about 6–8 feet from the
7 Brabender testified that “when people have tried to hand out other
things, I have put a stop to it. Not necessarily things to a union cam-
paign.” (Tr. 177.) He did not elaborate, however, on those circum-
stances and it is not clear whether he was acting pursuant to the Re-
spondent’s unwritten no-access policy or its written no-solicitation
policy.
RYDER STUDENT TRANSPORTATION SERVICES 11
terminal door, they handed leaflets to employees entering the
terminal to clock in. (GC Exh. 3.) A few minutes later, Dis-
patcher Jeff Cain came out of the terminal to tell Hughes that
he could not distribute literature on company property. Hughes
informed Cain that he was a company employee, showed him
his identification badge, and refused to leave. An unidentified
woman later came out of the terminal to write down Hughes’
and Pahl’s names. The two off-duty employees left the terminal
around 7 a.m.
On April 8, 1999, Hughes and Pahl returned to the Mounds-
ville terminal at 4 p.m. to distribute union literature and solicit
authorization cards. They were joined by a group of Mounds-
ville and Snelling employees as they finished work and clocked
out. They stood in the striped no parking areas handing out
literature to employees as they left the terminal after clocking
out. Contract Manager Dave Brabender approached Hughes
several times that afternoon. He first told Hughes that he could
not hand out literature on company property and that he needed
to stand off the property on a sidewalk about 75 yards from the
terminal building. When Hughes asserted his right to distribute
union literature in a nonworking area, a shouting match took
place, which ended with Brabender threatening to call the po-
lice to arrest the group for trespassing.
Brabender later returned, after consulting upper manage-
ment, to instruct Hughes and the others to stand off to the side
of the walkway in an area reserved for parking to allow em-
ployees unimpeded access to and from the building. (GC Exh.
3.) Occasionally, he would come out of the terminal building to
admonish the employees if they stepped outside the designated
area.
2. Stillwater terminal
On April 2, 1999, Hughes and Pahl arrived at the Stillwater
terminal at 5 a.m. They began distributing union literature in an
area used for employee parking near the entrance to the termi-
nal. Later they stood in an area used by employees to walk into
the terminal, approximately 100 feet long, between the front
door and main gate. Minutes later, an unidentified manager
came out of the terminal to tell them that they could not distrib-
ute literature on company property. Hughes asserted that they
were acting within their rights, showed him his employee iden-
tification badge, and continued leafleting. He also leafleted at
an employee parking lot across the street where a mini bus was
shuttling employees from a parking lot to the terminal entrance.
Hughes and Pahl left the Stillwater terminal at 7 a.m. after the
last employees had arrived for work.
3. Oakdale terminal
At 4 p.m. on April 21, Hughes, Pahl, and a few nonemployee
organizers handbilled at the Oakdale terminal. The nonem-
ployee organizers stood on a sidewalk off company property.
Hughes and Pahl stood on a sidewalk in front of the terminal
building door about 50 yards from the gate where employees
enter the property. Contract Manager Jim Berneche asked
Hughes and Pahl to leave the property. Hughes told him that he
was an employee and that he had a right to be there so long as
he did not interfere with employees working. Berneche left and
a short time later came out of the terminal building. He told
Hughes that he had spoken to his terminal manager, the re-
gional manager, and someone from the NLRB, all of whom
stated that Hughes and Pahl had to leave. Hughes refused. Ber-
neche left and came back a third time, apologized to Hughes
and Pahl, and told them that they could hand out literature so
long as they stayed out of the bus yard, the fuel islands, and
away from employees on the clock. They agreed and continued
leafleting in the employee parking lot and at the gate.
4. Analysis and findings
An invalid no-access rule cannot be lawfully enforced.
Stoody Co., 320 NLRB 18, 29 (1995). In addition, the Board
has held that employees of an employer who work at one facil-
ity are still considered employees of the employer if they hand-
bill at another of the employer’s facilities. ITT Industries, 331
NLRB No. 7, slip op. at 4 (2000). There is no credible evidence
that Hughes, Pahl, or any of the other employees, who hand-
billed at the various terminals, prevented anyone from entering
or leaving any of the terminal buildings or in any way disturbed
anyone working.
The Respondent argues that its misconduct in enforcing the
unwritten no-access policy, if anything, is de minimus. It as-
serts that the employees were not deterred from distributing
literature and that only one incident occurred after the represen-
tation petition was filed. I disagree. First, the test is not whether
the conduct succeeded or failed, but whether the conduct rea-
sonably tends to interfere with the free exercise of Section 7
rights. Waste Management of Palm Beach, 329 NLRB 198
(1999). Brabender testified that a female organizer handbilling
in the parking lot left after he told her she had no right to hand
out material there. He also testified that four other employees
stopped handbilling after he spoke to them on a cellular phone.
(GC Exh. 2.) The credible evidence further shows that Bra-
bender had a heated argument with Hughes in front of other
employees about their right to handbill, threatened to call the
police, and insisted that they pass out literature off the property.
I therefore find that the Respondent’s unlawful conduct rea-
sonably tended to interfere with the employees’ Section 7
rights.8
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act as alleged in paragraphs 5(b)–(e) of the
amended complaint.
C. The Alleged Promise to Create an Employee Association
In spring 1999, Theresa Stewart was a bus driver assigned to
the Stillwater terminal. In mid-May, she attended a company
sponsored “town hall” meeting at her terminal where the Re-
spondent’s labor relations director, Larry McDonald, spoke.
Stewart testified that during the meeting, she asked McDonald
who would negotiate with him for more affordable medical
benefits, if the Union was not elected. (Tr. 111.) According to
Stewart, McDonald “described an employee association that
would be able to sit down with him and negotiate with him.”
He added that no promises were being made. (Tr. 121.) She
further testified that McDonald stated that “it would be a group
of employees that he would be willing to meet with and negoti-

8 That only one reported instance occurred after the representation
petition was filed does not minimize the fact that the Respondent’s
unlawful conduct interfered with the employees’ Sec. 7 rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
ate with.” (Tr. 112.) Stewart testified that after the Union lost
the election, she asked her manager, John Thomas, if there was
going to be an employee association and how could she become
involved. Stewart stated that Thomas told her that there would
be an election, but it never occurred. (Tr. 114.)
McDonald recalled being asked who the company would ne-
gotiate with if the Union lost. (Tr. 197.) However, he denied
telling Stewart or anyone else that he would meet and negotiate
with an employee association in the event the Union lost the
election. (Tr. 199.) He testified that he told the employees it
was unlawful for him to encourage an outside group or internal
group. He also told them that over the years, some employees
had unsuccessfully attempted to form their own groups to talk
with the Respondent. McDonald conceded that he may have
used the word “associations,” but testified that he told the em-
ployees that he did not favor that type of arrangement. (Tr.
198.) McDonald testified that he told the employees that the
Respondent favored open forum meetings or town hall meet-
ings to discuss issues and educate employees. (Tr. 198–199.)
Brabender corroborated McDonald’s testimony on this point.
(Tr. 161.)
For demeanor reasons, I credit McDonald’s corroborated tes-
timony on this point. In contrast, Stewart’s testimony was un-
corroborated, despite the fact that approximately 150 employ-
ees attended the same meeting. She also testified that she was
sitting in the back of the room, behind approximately 150 em-
ployees, who were noisy and acting unprofessional at times.
This evidence supports a reasonable inference that Stewart may
have misunderstood or misheard McDonald’s response.
Accordingly, I shall recommend that the allegations of para-
graph 5(f) of the amended complaint be dismissed.
D. The Unlawful May 11 Threat that the Respondent Would not
Bargain in Good Faith
Paragraph 5(g) of the complaint alleges that in a May 1999
meeting at its Burnsville, Minnesota terminal, an unidentified
agent of the Respondent threatened employees that the Respon-
dent would not bargain in good faith or that bargaining would
be futile. The evidence shows that on May 11, 1999, the Re-
spondent held three town hall meetings at its Burnsville termi-
nal: one in the morning, one at noon, and one at 5 p.m. Bus
driver Jane Olson, who was assigned to the Burnsville terminal,
attended all three. Olson stated that four management officials
attended one or more of the meetings for the Respondent. There
was a man from St. Louis, whose name she could not remem-
ber; a location manager named “Fred;” the Burnsville safety
director, Martha Whitman; and the Burnsville contract man-
ager, Ralph Garbe. (Tr. 25–26.)
Olson testified that at the 5 p.m. meeting, the man from St.
Louis introduced himself indicating that he would be negotiat-
ing with the Union. He reviewed how the bargaining process
worked. Olson testified that “he said what will happen is the
union employees or the union will have a list of demands that
they want from Ryder, and he said I will come back with a list
of demands that the Company wants because the Company also
will have demands that they want, and there will be a counter
offer to my offer and he said then I will come back with a uni-
laterally binding contract and that will be the end of it. There
will be no more negotiations.”
(Tr. 27.) According to Olson, the St. Louis man said that the
Union would have two or three bus drivers at the bargaining
table and he would represent the Respondent.
The Respondent did not call a man from St. Louis to testify.
Rather, Labor Relations Director McDonald testified that he
conducted all three Burnsville meetings himself and that a con-
tract manager from another terminal, Fred Retzloff, was present
for each meeting. (Tr. 200.) He testified that the negotiation
process was discussed at each meeting and that he explained in
detail how the bargaining process worked. (Tr. 201–203.) Ac-
cording to McDonald, he told the employees at these meetings
“if agreement can’t be reached at the bargaining table and it
comes to impasse, the company has a right to give its final and
best offer to the union and characterize it as a final and best
offer, and then if it doesn’t get ratified the company has a right
to unilaterally install a final and best offer.” (Tr. 202.) McDon-
ald denied telling the Burnsville employees that after one or
two moves he would suddenly implement a unilaterally binding
contract and that would end the negotiations. (Tr. 204.) Fred
Retzloff testified that he attended all three meetings and gener-
ally corroborated McDonald’s testimony about what he told the
employees at the three meetings. (Tr. 227–228.)
Neither McDonald nor Retzloff testified that anyone else
was present at any of these meetings for the Respondent.
Retzloff was not asked whether a man from St. Louis was pre-
sent at the Burnsville meetings. McDonald did not expressly
deny that a man from St. Louis was present and spoke at the 5
p.m. meeting. Rather, he testified around the issue by stating
that a human resources manager from St. Louis named Gary
Anderson was in Minnesota for a very short period of time.
McDonald, however, quickly pointed out that Anderson did not
fit the physical description given by Olson of the St. Louis man
at the 5 p.m. meeting, thereby fostering the impression that
Olson was mistaken and that he alone spoke at the 5 p.m. meet-
ing.
On cross-examination, McDonald attempted to bolster the
impression he had fostered. He was asked:

Q. Mr. McDonald, isn’t it true that at the May 11th
meeting at Ryder’s Burnsville facility a company
representative from St. Louis did say that he wouldn’t sit
down with any union?
A. Not that I know of.

(Tr. 214–215.)
However, the unrebutted evidence shows that on or about
August 5, NLRB Agent Deborah Rogers wrote a letter to
McDonald which stated, “At the May 11th meeting at the
Burnsville facility, an employer representative from St. Louis
allegedly threatened (a) that he would not sit across the table
from any union negotiator, (b) that the Employer would unilat-
erally implement a contract, and that (c) if a union came in,
employees would no longer go to their managers.” (Tr. 217–
218.) At trial, the General Counsel showed McDonald his re-
RYDER STUDENT TRANSPORTATION SERVICES 13
sponse,9 dated August 25, to the letter, in which he effectively
acknowledged that there was a man from St. Louis at the May
11 meeting, by stating:

a human resources manager from St. Louis did say that he
would not sit across the table from the union. He wouldn’t.
He would not be involved in the negotiations. That would be
the sole province of the director of labor relations, (b) unilat-
eral implementation is the only possible subsequent to rejec-
tion of the company’s final and best offer. This allegation is
obviously used out of context, and (c) it was probably stated
at one time or another that the election of a union mandated
that the company recognize the union [as] the exclusive repre-
sentative for all union employees and that a supervisor would
have to respect and work within that relationship.

(Tr. 218.)
McDonald eventually admitted at trial that a human re-
sources manager from St. Louis was at the May 11 meeting and
reluctantly conceded that he did say that he would not sit across
the table from the Union. (Tr. 219.) At the same time, however,
he implied that Anderson was the human resources manager
from St. Louis (Tr. 220), but clarified himself by stating that
Anderson was not at Burnsville when he (McDonald) was
there.
I find that McDonald’s testimony on this issue was contra-
dictory, purposefully evasive, misleading, and not credible. In
addition, Retzler’s generalized testimony did nothing to reha-
bilitate McDonald’s unconvincing testimony. Moreover, the
unrebutted evidence shows that Contract Manager Ralph Garbe
was present at the 5 p.m. meeting, but the Respondent did not
call him to testify at trial or offer any explanation for his failure
to appear. It is well settled that when a party fails to call a wit-
ness who is likely to be favorably disposed to the party, an
adverse inference may be drawn about any factual question on
which the witness is likely to have knowledge. That is, it may
be inferred that the witness, if called, would have testified ad-
versely to the party on that issue. Jim Walter Resources, 324
NLRB 1231, 1233 (1997). I draw such an adverse inference
here.
On the other hand, for demeanor reasons, I find Olson was
very credible and to the point. I therefore credit her testimony
concerning the statements made by the management official
from St. Louis at the 5 p.m. meeting on May 11, 1999. I find
that the statements attributed to the man from St. Louis tended
to interfere with the employees’ rights under Section 7 of the
Act.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act as alleged in paragraph 5(g) of the complaint.
E. The Unlawful Statement Made at the Como Terminal Town
Hall Meeting
Paragraph 6(h) alleges that in approximately May 1999,
Contract Manager Dan Berg threatened employees in a meeting
at the Como terminal that the Respondent would not bargain in
good faith or that bargaining would be futile.

9 McDonald identified and acknowledged that he wrote the August
25 letter. (Tr. 215, 218.)
The evidence shows that in spring 1999, the Respondent held
several employee meetings at its Como terminal to discuss its
opposition to the Union and to explain how negotiations
worked. Driver Keith Mader, who was assigned to Como, testi-
fied that he attended three separate employer such meetings on
different days. (Tr. 125, 133.) Mader stated that at the second
meeting he attended there were six to seven employees present
and three management officials: Regional Supervisor Dan
Berg; Arlen Hviding, the Como location manager; and a super-
visor named Jeff Mueller. (Tr. 134.) Mader testified that when
Berg spoke to the employees in attendance he “mentioned
something to the effect that we’d negotiate back and forth, off
and on, and that he basically would not accept none of it, that
he would just get up and walk out.” (Tr. 126.) On cross-
examination, Mader reiterated that Berg stated “that the nego-
tiations go back and forth and then he’d just say forget it, get up
and walk out because they don’t have money to negotiate
with.” (Tr. 136.) According to Mader, Berg’s exact words were
“If I do not agree to it I will get up and walk out” (Tr. 137).
Mader conceded, however, that Berg told the employees that he
said he would walk out after the parties were unable to reach an
agreement. Mader further testified that the other supervisors
talked about cutting up the pie, and stated that they could not
negotiate with what they did not have. Specifically, he stated
that Supervisor Jeff Mueller stated, “We can’t pay you any
more. We ain’t making no money now.” (Tr. 127.)10 Mader
stated that Berg told the employees that most of the money was
now going to the employees and that is why the Respondent did
not have money to negotiate. (Tr. 137–138.)
Berg could not recall if he discussed what would happen if
the parties were unable to reach an agreement after negotiating
for some time. (Tr. 232.) However, he denied making the
statements attributed to him by Mader. He denied that he told
anyone that he would not accept anything that the union pro-
posed and that he would get up and walk out. He also denied
telling the employees that the Respondent could not negotiate
something that it did not have. (Tr. 233.) For demeanor reasons,
I do not credit Berg’s denials. Also, the Respondent failed to
call as corroborative witnesses Location Manager Arlen Hvid-
ing and Supervisor Jeff Mueller. I draw an adverse inference
from the Respondent’s failure to call these witnesses that, if
called, they would have testified adversely to the Respondent
on this issue. Jim Walter Resources, supra at 1233. On the other
hand, for demeanor reasons, I credit Mader’s testimony.
Thus, the evidence shows that the thrust of Berg’s remarks
were that the Respondent had no money to negotiate and there-
fore after going through the motions it would get up and walk
away from the table. Accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act as alleged in paragraph 5(h)
of the complaint.
10 Mader also testified that he attended a third meeting where Berg,
Hviding, and a company representative from Pennsylvania spoke to the
employees. According to Mader, the man from Pennsylvania “men-
tioned we would start from ground zero. We wouldn’t get nothing until
after the negotiations were done and over with.” (Tr. 128.) The com-
plaint does not allege, nor does the General Counsel argue, that any
statements made by the Respondent’s representatives at the third meet-
ing violated the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Promulgating and maintaining an unwritten no-access
policy prohibiting its employees from having access to and
distributing literature at its terminals unless they worked at
those terminals and/or prohibiting them from entering the prop-
erty of their own terminal at times they are not scheduled to
work.
(b) Enforcing its unwritten no-access policy by attempting to
prohibit employees from distributing union literature at termi-
nals where they did not work and attempting to prohibit em-
ployees from entering the property of their own terminal at
times they were not scheduled to work.
(c) Telling its employees that if the Union was elected it
would not bargain in good faith and that bargaining would be
futile.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in any unfair labor prac-
tice not specifically found here.
REMEDY
Having found that the Respondent has engaged in certain un-
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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Ryder Student Transportation Services,
Inc., Minneapolis/St. Paul, Minnesota, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining an unwritten no-access
policy prohibiting its employees from having access to and
distributing literature at its terminals unless they worked at
those terminals.
(b) Enforcing its unwritten no-access policy by attempting
to prohibit employees from distributing union literature at ter-
minals where they did not work and attempting to prohibit em-
ployees from entering the property of their own terminal at
times they were not scheduled to work.
(c) Telling its employees that if the Union was elected it
would not bargain in good faith and that bargaining would be
futile.

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the existence of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its of-
fices in St. Paul, Minnesota, and at all of its terminals in the
Minneapolis/St. Paul, Minnesota area, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained 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. In the event that, during the pendency of these pro-
ceedings, 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 March 30, 1999.
(b) 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.
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 violated 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
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 con-
certed activities.

WE WILL NOT promulgate and maintain an unwritten no-
access policy prohibiting our employees from having access to
and distributing literature at our terminals, unless they work at
those terminals and/or prohibiting them from entering the prop-
erty of their own terminal at times they are not scheduled to
work.
12 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RYDER STUDENT TRANSPORTATION SERVICES 15
WE WILL NOT enforce an unwritten no-access policy by at-
tempting to prohibit employees from distributing union litera-
ture at terminals were they do not work and by attempting to
prohibit employees from distributing union literature at their
own terminals at times they are not scheduled to work.
WE WILL NOT tell our employees that if School Service
Employees Local 284, SEIU is elected we will not bargain in
good faith and that bargaining would be futile.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

RYDER STUDENT TRANSPORTATION
SERVICES, INC.