Tri-County Transportation Technology

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1153 (N.L.R.B. 2000)

TRI-COUNTY TRANSPORTATION 1153
Tri-County Transportation, Inc. and Lillian Dick and
Ivan Dick and John Croskey. Cases 7–CA–
40201(1), 7–CA–40201(2), and 7–CA–40201(3)
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 16, 1999, Administrative Law Judge Robert
T. Wallace issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel 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 conclusions 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, Tri-County Transportation,
Inc., Cadillac, Michigan, its officers, agents, successors,
and assigns shall take the action set forth in the Order.

Linda Rabin Hammell, Esq., for the General Counsel.
Michael Figliomeni, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried before me in Cadillac, Michigan, on June 25 and
26, 1998. The charges were filed by Lillian and Ivan Dick and
John Croskey on September 10, 1997,1 and a consolidated
complaint issued on November 25.
The complaint alleges that the above-named individuals (all
employees of Respondent Tri-County) were discriminatorily
placed on indefinite layoff status in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act (the Act). Also
alleged as an independent violation of Section 8(a)(1) is a rule
threatening employees with termination if they contact Tri-
County’s board of directors about “a work related issue.”
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 Tri-County, I make the following
FINDINGS OF FACT
I. JURISDICTION
Tri-County, a nonprofit corporation, with facilities in Cadil-
lac, Michigan, transports handicapped students to and from
intermediate schools within a 50-mile radius of Cadillac. It
annually receives gross revenues in excess of $250,000 and
purchases goods valued in excess of $50,000 from a supplier
who received them directly from sources outside the State of
Michigan. It 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.

1 In agreeing with the judge that the Respondent violated Sec.
8(a)(1) by, among other things, effectively terminating Lillian Dick,
Ivan Dick, and John Croskey because they engaged in protected con-
certed activity when filing unemployment compensation claims, Mem-
ber Hurtgen notes that the Respondent concedes that it knew that these
employees were acting together when they pursued those claims.
1 All dates are in 1997 unless otherwise indicated.
II. ALLEGED UNFAIR LABOR PRACTICES
Since its inception in 1960, Tri-County has been the sole pro-
vider of transportation service to a multicounty State entity—the
“Intermediate School District” (ISD)—responsible for providing
special education instruction and services to handicapped chil-
dren. It has done so pursuant to a succession of one-page annual
contracts under which it is compensated on an average cost-per-
mile basis with the rate being recalculated each month.
A board of directors oversees the operations of Tri-County.
At all pertinent times, members of the board were: two retired
ISD officials (Ron Hellenga and Darryl Petterson) and a local
accountant (William Cowen). The latter provides a complete
range of accounting services to Tri-County, including prepara-
tion of payrolls, tax reports, and cost assessments. He also han-
dles correspondence with governmental bodies, such as the
Michigan Employment Security Commission (MESC).
During the l996–1997 school year, Tri-County employed six
busdrivers in servicing six routes, and an aide rode with them
on each trip. In addition, it maintained a pool of about 12 sub-
stitutes. Typically drivers and aides are retired from other jobs
and many are married couples. The Charging Parties fit the
pattern. Croskey, a retired state trooper, began driving for Tri-
County in 1992. Ivan Dick was a tractor-trailer driver for 26
years and he was hired as a busdriver by Tri-County in 1983.
His wife Lillian, an aide in a nursing home for over 10 years,
became a full-time aide for Tri-County in 1991.
Short-term layoffs during summer months are customary and
the Charging Parties were among those selected for laid off at
the end of the 1996–1997 school year. They were informed on
Friday, June 6, when they found in their pay envelopes identi-
cal letters reading as follows:
May 28, 1997
Unless you are specifically notified to the contrary,
this letter is to provide you with reasonable assurance of
your continued employment in a similar capacity with . . .
[Tri-County], following the period between two academic
years, which commences at the end of classes for the
1996–1997 school year and ends with the resumption of
classes for the 1997/1998 school year. This letter is being
sent in order to comply with the present unemployment
laws. [Emphasis added.]
We would like to thank you for your services to Tri-
County . . . and wish you a healthy a you again during the
coming school year.2

Tri-County unsuccessfully opposed awards of unemploy-
ment compensation to Croskey for each of the three preceding
summers and the underscored language, taken from the perti-
nent Michigan statute (MCL 421.27(l)(2)), was intended to
preclude further awards.
2 The letter went out over the name of a Tri-County driver (Herm
Liedeke) who earlier in the school year had accepted the extra duty of
maintaining schedules and otherwise supervising operations. Shortly
after signing the letter he relinquished the extra duties but continued as
a driver.
331 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
Croskey had discussed unemployment compensation oppor-
tunities with fellow employees on numerous occasions over a
2-year period; and before leaving work on June 6, he urged
Lillian and Ivan to file claims. By prearrangement over the
weekend, they met at the unemployment office at 10 a.m. on
Monday, June 9, where, after helping each other complete ap-
plication forms, they each filed for unemployment compensa-
tion. Later that day the MESC sent Tri-County letters advising
that the applications had been filed and requested information
concerning the layoffs.3
Tri-County replied to the MESC regarding Ivan’s and
Lillian’s applications on June 12, and on July 2 as to Croskey’s.
The replies, identical in content and drafted by account-
ant/board member Cowen, opposed any award and included as
attachments the “reasonable assurance of reemployment” letters
given the employees on June 6.
On July 9 the Board named Chuck Hartsell as Tri-County’s
“Transportation Coordinator.” He had been a substitute driver
and aide since 1995 and before that had been “in business” for
20 years. His new duties were essentially the same as those of
Liedeke and, like him, Hartsell intended to perform them as an
adjunct to driving a regular bus route.4
On July 13 identical letters to the Charging Parties were pre-
pared over his and Liedeke’s signatures. The letters read as
follows:

Please be advised that you are being placed in indefi-
nite layoff from your position with Tri-County Transporta-
tion, Inc., effective August 21, l997.
Until further notice, you are not to attend any meetings
for Tri-County Transportation, Inc. employees.

At about the same time and responding to a perceived need
to run Tri-County on a more business-like basis, Hartsell
promptly set to work drafting a 13-page employee handbook
the purpose of which, as stated in the preface, was to give em-
ployees a greater understanding of what was expected of them
on the job. Among other things, the handbook recites: (1) that
“all employees are hired for the nine months academic period
only. . . . [but are] reasonably assured of returning to work at
the beginning of the new school year unless specifically noti-
fied to the contrary,” (2) that personnel decisions are made
without regard to seniority, and (3) that “Any employee (other
than the Transportation Coordinator) contacting the Tri-County
Bussing or Intermediate School Board of Directors or any indi-
vidual member of the Boards regarding a work-related issue
will be terminated from employment.” He issued the handbook
to employees on July 31.
On August 14 Hartsell sent the three “indefinite layoff” let-
ters, still dated July 13, to the Charging Parties.5 Ivan, Croskey,

3 The three Charging Parties were the only employees who filed for
unemployment benefits in 1997 and, except for Croskey, only two other
employees (Cynthia Baker and William Dick) had filed in prior years.
The circumstances under which they did so (summer layoffs or other-
wise) are not of record.
4 Hartsell testified that on being named coordinator he knew the
Charging Parties had filed claims for unemployment compensation and
was privy to the letters Tri-County sent to the MESC in opposition to
the claims.
5 Based on my review of the record as a whole, I decline to credit
Hartsell’s claim the letters were not written until August 13. Among
other things, I note cosignatory Liedeke had resigned 3 weeks earlier.
and Lillian then ranked 2d, 12th, and 13th, respectively, in
companywide seniority. Among the 12 aides, Lillian ranked
third. Tri-County had never before laid off anyone for the regu-
lar school term. Nor had layoffs ever before been denominated
“indefinite.”
The three employees had discipline free employment re-
cords.6 Indeed, board member, Hellenga, specifically includes
them in his comment that Tri-County employees love and are
loved by the children served.
On September 30, Croskey returned to the Tri-County office
and asked Hellenga why he was laid off. According to Cros-
key’s undisputed testimony. Hellenga told him he had no ex-
planation.
Referring to that meeting in a memo to Croskey dated Octo-
ber 14, Hartsell, citing the employee handbook, advised him
that “[a]ny further instance of contact with the Board of Direc-
tors or individual members of the Board will result in your
being discharged.”
Three members of the Tri-County board testified. They pro-
fess no knowledge of why layoffs were necessary and why the
Dicks and Croskey were selected. Petterson states he was away
on vacation when the board considered the matter. Cowen re-
calls that a committee composed of himself, Hartsell, “and
maybe someone else” deferred to Hartsell’s judgment as to how
many and who should be laid off. He adds that Hartsell “proba-
bly told me who he was going to lay off. . . . [but] didn’t say
why.” Hellenga disclaims any involvement in the layoff deci-
sions and is “not specifically” aware of reasons therefor.
For his part, Hartsell explains that three layoffs were neces-
sary (1) because, as newly named transportation coordinator, he
was entitled to displace a regular driver and (2) because a
planned discontinuance of a bus route7 obviated need for an-
other driver and an aide.
He affirms that the filing of claims for unemployment com-
pensation had nothing to do with his choosing Croskey and the
two Dicks for layoff. Instead, and based input from others and
on his observations while working as a substitute, he claims
that the three had displayed a pattern of “disruptive” behavior
and lacked what he views as a necessary requisite for employ-
ees in a small company, i.e., an ability to “get along.”
In support of that perception, he recites that while riding with
Croskey on an empty bus in 1996, he saw him engage in a
“dangerous” activity, i.e., drive with a hand throttle engaged.8
Also, on a number of occasions he heard Croskey gripe about
being reassigned by former supervisor, Liedeke, from one route
to another with some loss of pay. Further, he observes that
Croskey often manifested his displeasure with Liedeke by re-
ferring to him as “Adolph” and, when passing, by giving
Liedeke what he (Hartsell) perceived to be a nazi salute. Addi-

However, it appears likely that the effective date was written in on or
about August 13.
6 An exception is a warning issued to Ivan on November 7, 1996, for
failing to follow proper procedures in making allegations about another
driver (Scott Truesdale).
7 Discontinuance was at the behest of the ISD financial officer (John
Bretschneider) who anticipated “terrific savings” and consequent re-
duction in Tri-County’s per-mile costs.
8 Hartsell did not caution Croskey or report the incident because as a
substitute “if you wanted to work you . . . kept your mouth shut.” Also,
he feared management “would consider me a trouble maker.”
TRI-COUNTY TRANSPORTATION 1155
tionally, he faults Croskey for, on a field trip, driving away for
a short time after debarking students.9
As to the Dicks, Hartsell explains that Liedeke and Cowen
told him that they, particularly Ivan, encouraged parents to
attend a board meeting in May 1996 to complain about another
driver’s (Scott Truesdale’s) misconduct involving, among other
things, drug use and urinating outside a bus in view of children
being transported. Also, he considers Lillian a “backbiter” be-
cause she told him repeatedly over a 6-week period they rode
together in 1996 that Liedeke and other management people
were “crooks and thieves . . . [for] stealing” a job from Ivan.
Then too, he was apprehensive that Lillian, if retained, would
have “worked against us” for laying Ivan off.
Discussion
Newly named supervisor, Hartsell, was aware that among
other employees laid off for the summer recess Croskey and the
Dicks alone had chosen to file unemployment compensation
claims, and this despite common knowledge that Tri-County
had in the past and would again10 oppose such claims. On July
14, 5 days after being appointed, Hartsell reacted by drafting
the “indefinite layoff” letters. He had long held the view that
the three were troublemakers, i.e., not sufficiently deferential to
management; and their act of filing decisively reinforced that
perception.
In these circumstances, I view as highly probable, and find,
that the “indefinite layoffs” were terminations and were
prompted by or at least due in significant part to the filings.
The next question is whether in filing the three employees
engaged in “concerted” activity for “mutual aid and protection”
and so come within the aegis of Section 7 of the Act.
It is clear that seeking statutorily created employment bene-
fits from a common employer is a legitimate objective for con-
certed action. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). I find
it equally clear that the three employees went to the unem-
ployment office together, not simply to help each other file an
application, but concertedly for mutual aid and protection.
Again, they were aware that what they were doing would be
opposed by their employer and apprehensive as to what else
might happen. Accordingly, through their prearranged gather-
ing they sought reassurance from each other’s presence, i.e.,
acted concertedly. In this respect, the situation here differs ma-
terially from the hypothetical one considered in D. A. Collins
Refractories, 272 NLRB 931 fn. 2 (1984).
I conclude that in terminating the three employees Tri-
County violated Section 8(a) (1) as alleged.
There remains to be considered the work rule (see item (3) p.
1165, supra) published by Tri-County on or about July 13. That
rule is overly broad in that it flatly precludes employees from
ever acting concertedly in presenting work-related concerns to
higher management officials of Tri-County or to third parties
(e.g., ISD). See Compuware Corp., 320 NLRB 101 (1995),
enfd. 134 F.3d 1285 (6th Cir. 1998), cert. denied 523 U.S. 1123
(1998).

9 On cross-examination, Hartsell concedes that 6 to 8 teachers and
aides remained with the 25 children and that he was unaware that Cros-
key left to refuel the bus.
10 As noted earlier the “reasonable assurance of reemployment” let-
ter given them and other laid-off employees on June 6 was couched in
terms of exclusionary language in the pertinent Michigan unemploy-
ment compensation statute.
Although the rule is not contained in a revised employee
handbook issued April 30, 1998, that circumstance does not
negate or ameliorate this violation of employees’ Section 7
rights, especially since there is no indication that employees
were told that (1) the deletion was made, (2) why it was made,
and (3) any disciplines issued thereunder, including Croskey’s,
were removed from personnel files.
I find promulgation, maintenance, and enforcement of the
rule violative of Section 8(a)(1), as alleged.
CONCLUSION OF LAW
The Respondent Tri-County is shown to have violated Sec-
tion 8(a)(1) of the Act in the particulars and for the reasons
stated above, and its violations have affected, and unless per-
manently enjoined, will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent Tri-County 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.
Having discriminatorily discharged three employees, it must
offer them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons 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 recommended11
ORDER
The Respondent, Tri-County Transportation, Inc. of Cadil-
lac, Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected concerted activities, including
the filing of claims for unemployment compensation with the
Michigan Employment Security Commission.
(b) Promulgating, maintaining, and enforcing a rule preclud-
ing employees from acting concertedly in presenting work-
related concerns to higher management officials of Tri-County
or third parties such as the Intermediate School District.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise 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 from the date of this Order, offer John
Croskey, Lillian Dick, and Ivan Dick full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make John Croskey, Lillian Dick, and Ivan Dick whole
for any loss of earnings and other benefits suffered as a result
of the discrimination practiced against them, in the manner set
forth in the remedy section of the decision.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Within 14 days from the date of this Order, remove from
its files any reference to disciplines issued to employees, in-
cluding John Croskey, for violating a rule prohibiting employ-
ees from concertedly presenting work-related concerns to
higher management officials of Tri-County or to third parties
such as the Intermediate School District and within 3 days
thereafter notify the employees in writing that this has been
done and that the disciplines will not be used against them in
any way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cilities in Cadillac, Michigan, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately 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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities
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 July 13, 1997.
(g) 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

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.”
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 discharge or otherwise discriminate against
any of you for acting together for other mutual aid or protec-
tion, including concertedly filing claims for unemployment
compensation with the Michigan Employment Security Com-
mission.
WE WILL NOT make, maintain, or enforce a rule preclud-
ing you from acting concertedly in presenting work-related
concerns to higher management officials of Tri-County or third
parties such as the Intermediate School District.
WE WILL NOT in any like or related manner interfere, re-
strain, or coerce you in the exercise of the rights guaranteed
you in Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
John Croskey, Lillian Dick, and Ivan Dick full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make John Croskey, Lillian Dick, and Ivan Dick
whole, with interest, for any loss of earnings and other benefits
suffered as a result of the discrimination practiced against them.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges of John Croskey, Lillian Dick, and Ivan Dick, and WE
WILL, within 3 days thereafter, notify them in writing that this
has been done and that the discharges will not be used against
them in any way.
WE WILL, within 14 days from the date of this Order, re-
move from our files any reference to disciplines issued to em-
ployees, including John Croskey, for violating a rule prohibit-
ing you from concertedly presenting work-related concerns to
higher management officials of Tri-County or to third parties
such as the Intermediate School District, and WE WILL, within
3 days thereafter, notify them in writing that this has been done
and that the disciplines will not be used against them in any
way.
TRI-COUNTY TRANSPORTATION, INC.