Twin America, LLC and City Sights NY LLC, a Single Employer, and JAD Transportation, Inc., a Joint E

National Labor Relations Board - Administrative Judge Opinions

Mar 20, 2019

02-CA-190704 (N.L.R.B. Mar. 20, 2019)

JD(NY)-04-19
New York, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
TWIN AMERICA, LLC, CITY SIGHTS NY,
LLC, AND GRAY LINE NEW YORK TOURS,
INC., AS A SINGLE EMPLOYER, AND
JAD TRANSPORTATION, INC., AS
JOINT EMPLOYERS
and Cases 02–CA–190704
02–CA–196228
TEFE KWAMI AMEWO, an Individual 02–CA–198436
UNITED SERVICE WORKERS UNION,
IUJAT, LOCAL 1212
and Case 02–CB–190736
TEFE KWAMI AMEWO, an Individual
UNITED SERVICE WORKERS UNION,
IUJAT, LOCAL 1212
and Case 02–CB–199847
ARTHUR Z. SCHWARTZ, an Individual
Jamie Rucker, Esq., for the General Counsel.
Stanley Goodman, Esq. and Carlos Torrejon, Esq., for the Respondent Employers.
Gary Rothman, Esq. and Eric LaRuffa, Esq., for the Respondent Union.
Arthur Z. Schwartz, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JEFFREY P. GARDNER, Administrative Law Judge. The multiple charges in this case were
filed by Tefe Kwami Amewo, an individual, and Arthur Z. Schwartz, an individual, between
January 3 and September 13, 2017.1 An amended consolidated complaint was issued on April
20, 2018 against the Respondent Employers, Twin America, LLC, City Sights NY LLC and

1 Arthur Z. Schwartz is an attorney who has represented Local 225, Transport Workers Union of America, AFL–CIO
(hereinafter “Local 225”), which is not a party to these proceedings. It appears that he did not intend to be an
individual charging party, but rather, intended to file on behalf of the affected employees. Nevertheless, the
General Counsel chose not to amend the case caption.
JD(NY)-04-19
2
Gray Line New York Tours, Inc. as a single employer, and JAD Transportation, as joint
employers; and against the Respondent Union, United Service Workers Union, IUJAT, Local
1212.2
The complaint alleges Respondent Employers violated Section 8(a)(3) and (1) by5
terminating the former Gray Line ticket agents; by end-tailing the seniority dates of those Gray
Line ticket agents; and by requiring those former Gray Line ticket agents to accept their end-
tailed seniority dates as a condition of rehire. The complaint further alleges Respondent
Employer JAD Transportation, Inc. violated Sections 8(a)(5) and (1) and 8(d) of the Act by
unilaterally requiring the former Gray Line ticket agents to agree to an “alternative dispute 10
resolution” procedure as a condition of rehire. (GC Exh. 1(v).)3
In addition, the complaint alleges Respondent United Service Workers Union violated
Sections 8(b)(1)(A) and (2) of the Act by agreeing to end-tail the seniority dates of the former
Gray Line ticket agents. 15
On June 18 and 19, 2018, I conducted a trial at the Board’s Regional Office in New York,
New York, at which all parties were afforded the opportunity to present their evidence. After the
trial, the General Counsel, Respondent Employers and Respondent Union filed timely briefs,
which I have read and considered.420
Upon consideration of the briefs, and the entire record, including the testimony of
witnesses and my observation of their demeanor, I make the following
25
FINDINGS OF FACT
I. JURISDICTION
Respondent Employers Twin America, LLC, City Sights NY, LLC and Gray Line New 30
York Tours, Inc. admit, and I find, that they are, respectively, a Delaware limited liability
corporation (Twin America), a New York limited liability corporation (City Sights), and a New
York corporation (Gray Line), all with a principal place of business at 1430 Broadway, New
York, New York. These Respondents also admit, and I find, that they are a single-integrated
business enterprise engaged in the business of operating sightseeing tour buses with a 35
“Visitor’s Center” open to the public located at 777 Eighth Ave., New York, New York, out of
which its tour guides and ticket agents work, and are a single employer within the meaning of
the Act.
Respondents Twin America, City Sights and Gray Line further admit, and I find, that in 40
conducting their business operations during the most recent 12-month period, they collectively
derived gross revenue in excess of $500,000 from ticket sales directly to the general public, and

2 In the interest of clarity, the various Respondents will be referred to in this decision at times individually, or as
Respondent Employers, the Respondent Union, “the Employer(s)” or “the Union” where appropriate.
3 Abbreviations used in this decision are as follows: “Tr.” for the transcript, “GC Exh.” for the General Counsel's
exhibits, “ER. Exh.” for Respondent Employers’ Exhibits, “U. Exh.” for Respondent Union's exhibits, and “Jt Exh.” for
Joint exhibits. Specific citations to the transcript and exhibits are included only where appropriate to aid review,
and are not necessarily exclusive or exhaustive.
4 Neither of the individual charging parties filed a brief.
JD(NY)-04-19
3
purchased and received at its New York facilities, goods valued in excess of $5,000 directly
from suppliers located outside the state of New York.
Respondent Employer JAD Transportation, Inc. admits, and I find, that it is a New York
corporation with an office and principal place of business at 105 Cedar Drive West, Plainview, 5
New York, and has been engaged in the business of providing employees to other companies,
including Twin America and City Sights. Respondent JAD further admits, and I find, that in
conducting its business operations during the same period, it derived gross revenue from its
business operations in excess of $50,000 from other companies which are themselves directly
engaged in interstate commerce. It further admits that it is a joint employer of the unit of tour 10
guides and ticket agents at issue.
Therefore, I find that Respondent Employers are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, that Respondents Twin America, City
Sights and Gray Line are a single employer within the meaning of the Act, and that they are joint 15
employers with JAD of the employees involved herein.
Respondent Employers admit, and I further find, that James Murphy and Paul Seeger
have been supervisors and agents of Twin America and that Janet West has been a supervisor
and agent of JAD within the meaning of Section 2(11) and (13) of the Act. 20
Finally, it is undisputed and I also find that the Respondent Union, United Service
Workers Union, IUJAT, Local 1212 (“Local 1212” or “the Union”) is a labor organization within
the meaning of Section 2(5) of the Act.
25
II. ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent Employers are in the sightseeing tour bus industry, and each has a slightly 30
different history leading them to the current status quo. City Sights began operating hop-
on/hop-off sightseeing tour bus service in New York City in about 2005, and since May 2005,
City Sights has recognized the Union as the collective-bargaining representative of its
employees.5 This recognition was embodied in a series of collective-bargaining agreements
(“CBAs”) between Local 1212 and JAD dating back to 2005.35
Since at least 1994, Gray Line also operated a hop-on/hop-off sightseeing tour bus
service in New York City, and from at least November 2008 until November 28, 2016, Gray Line
recognized a different union, Transit Workers Union, Local 225 (hereinafter “Local 225”), as the
collective-bargaining representative of its tour guides and ticket agents. That recognition was 40
embodied in a series of CBAs dating from November 15, 2008 through January 5, 2015.
In March 2009, pursuant to a joint venture agreement, City Sights and Gray Line began
operating together under the name “Twin America.” However, at that time, and for nearly a
decade after, the employees working for Twin America remained separated into two bargaining 45
units, represented by two separate unions: the former City Sights employees represented by

5 Specifically, its full-time and regular part-time drivers, ticket agents, and tour guides in New York City, who are
supplied to City Sights by JAD.
JD(NY)-04-19
4
Local 1212, and the former Gray Line employees represented by Local 225, each subject to
those unions’ respective CBAs.
In April 2010, Local 225 filed a unit clarification petition seeking to add the City Sights
employees represented by Local 1212 to its Gray Line bargaining unit, although that petition 5
was subsequently withdrawn. Thereafter, later in 2010, Local 225 filed an RC petition seeking
to represent all the tour guides and ticket agents working at Twin America. That petition was
opposed by both Local 1212 and Twin America on the grounds that it was barred by the
existence of the respective CBAs in place at City Sights and Gray Line. Although Local 225
maintained that a contract bar should not apply because, it argued, City Sights and Gray Line 10
had merged into one entity, the Regional Director found in favor of the Union and Twin America,
and dismissed the petition.
Local 1212 and Local 225 continued representing their respective bargaining units over
the next few years while Twin America was engaged in litigation with federal, state and city 15
authorities relating to the combination of these various entities. Over that same period of time,
Twin America also began further integrating the City Sights and Gray Line operations, though it
declined to actually merge the two work forces. Indeed, even upon resolution of the litigation in
March 2015, there continued to be two separate bargaining units represented by their
respective unions and with two distinct working conditions deriving from what had been 20
separate CBAs.6
During that entire background, there does not appear to have been any allegation that
the Employer favored one union or the other, or that it had animus toward Local 225 in
particular. And there was no evidence presented at the hearing demonstrating an overt25
preference on the part of the Employer for one union over the other. Indeed, Respondent
Employer openly maintained its desire that both unions remain in place representing their
respective units at that time, and readily acknowledged as much at the hearing.
On May 12, 2015, Local 225 again filed a unit clarification petition seeking to add the 30
Union-represented tour guides and ticket agents to the Local 225 bargaining unit, which was
again opposed by Twin America, and again Local 225 withdrew that petition. Finally, on August
31, 2015, Local 225 filed a new RC petition seeking to represent all of the tour guides, ticket
agents and customer service agents working for the integrated operations of Twin America,
Gray Line and JAD.35
By this point, the Gray Line and City Sights operations had been fully merged, although
the employees still remained employed by separate entities.7 In light of the status of the
employers’ merged operations, in September 2015, the parties and the Region agreed to an
election among the tour guides, ticket agents and customer service agents working for the 40
integrated operations of Twin America, Gray Line and JAD, with the choices being
representation by Local 225, by Local 1212 or no union.

6 Local 225’s CBA expired after an initial extension in January 2015, and although there was bargaining between
Twin America and Local 225 for a successor CBA, no such agreement was ever reached. Local 1212’s most recent
prior CBA had been in effect through May 2017. It is not disputed that Twin America continued applying the terms
of those respective CBAs until the current agreement covering all of the employees went into effect in May 2017.
7 The former City Sights employees were employed and paid by JAD while the Gray Lines employees remained
employed and paid by Gray Lines.
JD(NY)-04-19
5
That initial election took place on September 18, 2015, with no party obtaining a
majority, and the two unions each receiving more votes than there were votes against union
representation. As such, after lengthy post-election proceedings spanning over a year, on
November 18, 2016, a runoff election was held to determine which of the two unions would
represent the unit.5
As a result of that runoff election, on November 28, 2016, the Board finally certified the
Union (Local 1212) as the collective-bargaining representative for all of the tour guides, ticket
agents and customer service agents working for the integrated operations of Twin America,
Gray Lines and JAD in a new combined bargaining unit. Shortly after the Union’s certification, 10
the parties began negotiations for an initial CBA for the newly combined unit.
In the meantime, with the new obligation to negotiate with the Union for a new contract
covering all of the bargaining unit employees, Twin America determined that it would outsource
all of the Gray Lines labor to JAD and eliminate the Gray Lines payroll to have one common 15
employer and payroll for the entire unit.8 Despite that impending transition to the JAD payroll,
and pending negotiations with the Union for a new CBA covering all employees, Twin America
was still applying to the employees who were then on the Gray Lines and JAD payrolls,
respectively, the terms and conditions of their previous unions’ two separate CBAs.
20
The Parties’ Negotiations
The Union and Twin America held collective-bargaining sessions for a new contract
beginning in December 2016, as well as communicating in writing over some proposals. The
Union was represented in negotiations by United Service Workers Union National vice 25
president, Jonathan Ames, who testified at the hearing for the General Counsel. The
Employers were represented in negotiations by Twin America’s Executive Vice President Paul
Seeger and Vice President James Murphy, and at times JAD President Janet West, all three of
whom also testified at the hearing for the Respondent Employers.
30
The parties’ first negotiation took place in person in mid-December 2016 at one of the
Union’s offices with Ames, Seeger and Murphy present. The meeting did not include employee
bargaining committee members and did not address ticket agent seniority. Rather, the focus
was regarding a different group of employees.
35
Prior to the next in-person meeting, by letter dated December 16, 2016, the Union
demanded immediate parity in wages between the former Gray Line ticket agents and the JAD
ticket agents at the prevailing JAD wage rates. 9 The Employer did not agree to the Union’s
demand, though the parties began discussing through telephone conversations, emails and
additional in-person meetings what the remuneration would be for the ticket agents.40
The second in-person meeting took place later that month at another of the Union’s
offices, and again included Ames, Seeger and Murphy. This time, Ames was accompanied by
an employee bargaining committee. Although the Union had been certified as the exclusive

8 Although it is disputed whether the manner in which the Employers accomplished the transition of Gray Lines
employees to the JAD payroll was lawful or required, it has not been argued that the Employers were not entitled
to outsource the former Gray Line employees to JAD.
9 It is undisputed that the former Gray Line employees were earning substantially less under the terms of their
expired Local 225 contract than the JAD employees were earning under the terms of the Local 1212 contract then
in effect.
JD(NY)-04-19
6
bargaining representative of the entire unit, because of the prior history of there having been
two separate units, the Union specifically included a contingent of former Gray Line employees
(formerly represented by Local 225) on its bargaining committee. Indeed, the Union included as
part of its initial bargaining position at this meeting a list of specific demands that those
employees had provided to the Union. These demands were presented to the Employer in 5
writing at this second in-person bargaining session, the first with the employee bargaining
committee members present.
Included in that list of demands, requested by the former Gray Line employees and
presented by the Union, was a proposal on how to reconcile what had been two separate 10
preexisting seniority lists now that the two bargaining units had been consolidated. The Union’s
proposal, in accordance with the former Gray Line employees’ request, was to keep the two
then-existing seniority lists separate. In the alternative, also at the former Gray Line employees’
request, the proposal was that if the two separate seniority lists were not maintained, then
seniority should be based on hiring dates at whichever company for which employees had 15
worked.
Respondent Employer rejected both of those seniority proposals. Instead, while they
proposed that the two seniority lists be consolidated into one, Respondent Employer’s position
was that the former Gray Line agents must follow all JAD agents on the seniority list for 20
purposes of layoff and schedule/location bids. This demand, from which the Employer never
departed, was attributed to Janet West’s belief that because JAD was effectively the “surviving”
member of the two employer entities, seniority for job bidding should be based on the date of
hire onto the JAD payroll.
25
At this point, Respondent Employer had also proposed that rather than raising the
commission rates of the Gray Line employees to parity with the JAD ticket agents, it would offer
to raise the commission rates of the Gray Line employees to the lower “B” rate. This would
represent a jump in compensation for the Gray Line employees, but nevertheless leave them
still earning less than their JAD counterparts. The Union rejected this proposal, repeating its 30
initial demand that the entire new bargaining unit must be paid at the same commission rate
structure based on their dates of hire, a demand from which it never departed.
Over the holiday weekend that followed, the parties exchanged emails on their positions
regarding compensation and seniority, and the Employer consented to providing the Gray Line 35
employees with the highest rates payable to the JAD employees, granting them the higher “A”
rate, and recognizing their prior Gray Line seniority in calculating wages, benefits and all other
purposes. However, the Employer continued to insist that with regard to layoffs and job bids,
the Gray Line employees transitioning to JAD would be placed behind the existing JAD
employees.10 40
The Union, in its own words in a January 2, 2017 email from Ames to Murphy,
recognized the “significant financial commitment” from the Employer that this rate change
represented, and the resulting significant increase in compensation for those of its members
who had been Gray Line employees. As such, the Union agreed to the Employer’s demand on 45
seniority in furtherance of reaching an overall contract, and specifically to secure the
commission rate parity which it felt was of utmost importance.

10 It was undisputed at the hearing that no ticket agent has ever been involuntarily laid off.
JD(NY)-04-19
7
Following that agreement on seniority, the parties continued negotiations and ultimately
reached a full agreement on a new CBA effective March 9, 2017. It is undisputed that
Respondent is bound by this most recent CBA, and that its terms now apply to all of Twin
America’s unit employees.
5
The concept of placing employees transitioning from Gray Line to JAD on the seniority
list based on the date they entered the JAD payroll was not entirely new. Prior to the election
that consolidated the two units, there were Gray Line employees who had transferred to JAD,
and they did not keep their Gray Line seniority. Janet West testified she believed JAD
employees would be distressed by moving down the seniority list, particularly those who had 10
been with her company from the beginning. But, she also recognized that Gray Line employees
would not be happy to receive lower seniority than their JAD counterparts.
West testified to her belief that pretty much any agreement regarding seniority that was
reached would negatively affect someone, and that there was no way to make 100 percent of 15
the unit happy. Facing that challenge, she testified that the compromise proposed - honoring
Gray Line employees’ seniority with regard to all but two items while giving them substantial
raises - was her best effort to keep the most people reasonably happy.
I found West’s testimony to be credible. Her demeanor was straightforward and 20
unhesitating, and she explained in detail her past history dealing with disgruntled employees
that helped inform her concerns about employee retention and her efforts to manage that. Her
testimony was also consistent with that of Murphy and Seeger, both of whom I also found
credible. All three of Respondent Employer’s witnesses described a credible business rationale
for the actions taken by them, and the considerable efforts made to reach a reasonable 25
compromise with the Union on the consolidation of the unit.
I did not find the individual employee witnesses offered by the General Counsel to be as
credible. The two current JAD employees who had previously been Gray Line employees,
Sarafa Sanoussi and Rufai Mohammed, both claimed to have had their earning potential 30
harmed by the seniority provision of the new CBA, yet Sanoussi actually made more money in
2017 than he had in 2016, and Mohammed made nearly as much money in 2017 than in 2016
despite working as many as 17 fewer days. And as a group, the former Gray Line employees
working for JAD collectively made well more money in 2017 than they had in 2016 as well.
35
I also found the employee witnesses, including Charging Party Tefe Kwami Amewo, less
credible when testifying to having been told by Murphy and Seeger that the seniority agreement
reached by Twin America and the Union was because “you people have lost the election” or
because Local 225 had called for the election. These comments appear to have been taken out
of context in discussions about why the Employer would not entertain the Union’s initial proposal 40
to maintain two separate seniority lists.
Respondent Employers’ Additional Disputed Actions
Following the parties’ agreement on the issue of seniority, Respondent Employer took a 45
number of additional actions to which the Charging Party objects. On January 5, 2017, Twin
America notified all of its Gray Line employees in writing that they would be required to
transition to employment by JAD effective no later than April 6, 2017. All 73 Gray Line
employees were offered employment, and 47 of them accepted the offer, and transitioned to
JAD by the effective date. The remaining 26 employees declined to transition.50
JD(NY)-04-19
8
Charging Party Amewo was among the employees who declined to transition to JAD.
As late as April 17, 2017, Twin America continued to offer Amewo a position with JAD pursuant
to the terms of the parties’ new CBA, but Amewo declined. Since that time, those Gray Line
employees who did transition to JAD, along with the existing JAD employees, have worked
under the terms and conditions of the parties’ most recent CBA.5
At all times between the January 5, 2017 notice and the April 6, 2017 transition date, it is
undisputed a collective bargaining agreement was in place between Twin America and the
Union - either the one Twin America had with the Union covering the City Sights/JAD ticket
agents prior to March 9, 2017, or the new CBA covering all ticket agents beginning March 9, 10
2017. It is also undisputed that both those contracts contained a dispute resolution procedure
that applied to disputes “between the Employer and the Union, or any group of employees
covered by this Agreement.” There was no inclusion or mention of any separate procedure, and
specifically no mention of individual arbitration as a mechanism for dispute resolution.
15
Finally, it is undisputed that the former Gray Line ticket agents who transitioned to JAD
were required to complete certain paperwork, including “agreeing to individual arbitration of
disputes” which was a term of employment that was a part of the parties’ CBA, and was not
agreed to by the Union. The Employer concedes that it gave these individual arbitration
agreements to employees, and required them to sign the package of paperwork in order to 20
transition to JAD. However, its position is that these arbitration agreements were included by
mistake, that it later ceased including those forms in its hiring packet, and that no employee was
actually denied employment for refusing to sign an individual arbitration agreement.
ANALYSIS25
A. Respondents Lawfully Negotiated an Agreement Consolidating Units Based on
Legitimate Business Reasons and not on the Basis of Union Membership
The driving thrust of this case is whether the Respondents violated the Act by agreeing 30
to a consolidation of two previous seniority lists into one list that, for purposes of job location
bids and layoffs only, was based on the date an employee joined the JAD payroll, rather than
based on their original date of hire by a Twin America entity. Because employees formerly
employed by Gray Line did not join the JAD payroll until they transitioned from Gray Line to JAD
between January and April 2017, this agreement had the effect of “end tailing” or placing all of 35
the former Gray Line employees behind the existing JAD employees on the new seniority list.11
As an initial matter, the issue of seniority rights is typically one negotiated between an
employer and a union, stemming from the principle that “seniority arises only out of contract or
statute,” and thus is “not an incident of employment.” NLRB v. Whiting Milk Corp., 342 F.2d 8,
10 (1st Cir. 1965). Although seniority is not a right specifically provided for in the Act, the Act 40
does prohibits an employer and/or a union from discriminating against employees in the
application of seniority for unlawful discriminatory reasons, or in the case of a union for merely
arbitrary reasons.
While seniority is not an absolute right of employment, the right to end tail a portion of
employees when two units consolidate is also far from absolute. During a merger of two sets of 45
employees that were previously represented by different unions, as here, it would be unlawful

11 Had the parties agreed to seniority based on original dates of hire by their respective employers, it would have
had the opposite effect, placing all of the former Gray Line employees ahead of the existing JAD employees.
JD(NY)-04-19
9
under the Act to determine the seniority of the merged employees based on their union
representation alone. In contrast, an employer and union may come to a seniority agreement
that distinguishes employees based upon “a bona fide attempt to resolve a problem frequently
arising from business merger.” Simon Levi Co., 181 NLRB 826, 827 (1970). In other words, it
must be based upon legitimate business considerations such as skill, unit seniority, changes in 5
the job description or work environment and preexisting seniority rights.
The Board has found unlawful discrimination in seniority agreements where membership
in one union over another is encouraged and where irrelevant and discriminatory considerations
are present. For example, requesting and agreeing to a seniority system based solely on the
date employees became members of a specific union is clearly unlawful conduct. International 10
Brotherhood of Teamsters, Local 727, 360 NLRB 65, 71 (2013). In that case, the Board
specifically found that “preferences granted on the basis of any membership considerations
[are] unlawful.” Id. at 71.
In finding such unlawful conduct, the Board noted that the union would violate 8(b)(1)(A)
of the Act even if there was no proof of bad faith “since arbitrary conduct without evidence of 15
bad faith has been found to constitute a breach of the duty” of fair representation. Id. at 72.
Thus, if employees were end tailed for arbitrary reasons, rather than based on the status of their
union membership, the Union could still be found to have violated the Act.
When deciding whether a factor in determining seniority is unlawful under the Act, the
Board also prohibits conduct that “discriminatorily encourages membership in one local over 20
another.” See Reading Anthracite Co., 326 NLRB 1370 (1998). In Reading, the Board found
that the choice to end tail seniority based on the date that employees received their transfer
cards from one union to another was unlawful because that was an “irrelevant and
discriminatory consideration.” Reading Anthracite Co., 326 NLRB at 1371.
The Board in Reading Anthracite Co. pointed out that this date “did not coincide with any 25
change in the employees' job duties, assignments, classifications, or work locations.” Id. at
1370. The Board’s language in Reading suggests that, had the employer opted to delegate
seniority according to some change in the work environment, the choice to end tail seniority
might not have been unlawful. See Reading Anthracite Co., 326 NLRB at 1370.
Indeed, end tailing seniority may be lawful where there are legitimate considerations that 30
justify the disparate treatment. For example, the Board has held that an alleged discrimination
in seniority by an employer was lawful conduct where the preferences were “skill based.”
Newspaper and Mail Deliverers’ Union of New York, 361 NLRB 245, 249-250 (2014). The
Board has further suggested that an employer may lawfully end tail a set of employees where
the objective of such an approach is to respect preexisting, enforceable seniority rights which 35
were not based on length of service alone. Interstate Bakeries Corp., 357 NLRB 15, 18 (2011).
The Board has also held that discrimination on the basis of unit seniority, as opposed to
union seniority, is allowable. See Interstate Bakeries Corp., 357 NLRB at 17 (“A union and an
employer do not discriminate in a manner prohibited by the Act by contracting to vest certain
employment rights based on seniority in a represented unit.”). Under this distinction, where an 40
employee has worked for another employer and then has been placed into an existing unit after
his company has been purchased, this employee may be lawfully end tailed based on his lack of
unit seniority. Id. However, it would be unlawful for parties to place employees at the end of the
seniority list because they were unrepresented by a particular union, or any union, in their prior
employment.45
JD(NY)-04-19
10
When negotiating seniority rights during a merger, a union must bargain for employee
benefits within the units it represents without simultaneously relegating non-union employees to
an inferior status. See NLRB v. Whiting Milk Corp., supra., 342 F.2d at 11. Significantly, a union
also cannot balance competing interests among different groups of employees it represents for
mere political reasons or to placate the majority at the expense of a minority. Teamsters Local 5
42 (Daily, Inc.), 281 NLRB 974 (1986).
Finally, the Supreme Court has held that even where there may be legitimate business
reasons for challenged conduct, and in the absence of anti-union animus, the Board can still
find an unfair labor practice if the actions taken by an employer are inherently destructive of
employee rights. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).10
The General Counsel maintains that by agreeing to the end tailing of seniority here, even
though only for job location bids and layoff, the Employer and the Union were unlawfully
discriminating against employees because of their former union membership in Local 225 while
employed by Gray Lines.
The Employer denies that employees’ former membership in Local 225 played any role 15
in its position. It takes the position that because commission rates in the JAD agreement were
significantly higher than commission rates in the Gray Line agreement, the former Gray Line
employees would be receiving substantial increases in compensation while the JAD employees
would not.12 As such, these employees were receiving lesser seniority not because of anything
to do with their former union, but because they were receiving that significant increase in 20
compensation that longtime JAD people were not, and the Employer was trying to keep its
entire workforce reasonably satisfied.
The Union takes the position that it is not uncommon for unions to try to reach a balance
between conflicting interests of different groups of employees it represents. It argues this is the
case whether it involves the same bargaining unit that has existed in the past between 25
employees of different classifications with different interests, or under the circumstances that
are presented here. It also denies that employees’ former membership in a different union
played any role in its decision. Instead, it maintains that it agreed to the seniority plan as a
compromise to secure the pay parity that it deemed to be of primary importance to those very
same employees.30
I find the General Counsel’s argument that the agreement between Respondent
Employers and the Respondent Union was motivated by antiunion animus to be unpersuasive.
The General Counsel has not shown that prior union membership of the former Gray Line
employees played any role in the decision to end tail their seniority. Rather, every indication is
that the Employer’s desire to end tail the seniority of those employees was based on its 35
legitimate concern that using straight seniority would result in the entire former Gray Line work
force leapfrogging past the JAD employees in seniority.
Janet West’s assertion that she did not want to have the JAD employees who had been
with her since the founding of City Sights all be placed below the former Gray Line employees in
seniority is reasonable and credible. And, I find it had nothing to do with the union that formerly 40
represented the former Gray Line employees.

12 JAD apparently had those higher commission rates because Gray Line, due to its long history in the industry and
not having had a contract or raise for 3 years, had fallen behind.
JD(NY)-04-19
11
In the absence of anti-union animus, and given the legitimate reasons articulated by the
Respondents for their seniority agreement, the only remaining question is whether that
agreement was inherently destructive of important employee rights under Great Dane. I find
that it was not. This is not a situation where an employer has favored one union over another, or
union members over non-union members. All of the Respondent Employer’s unit employees 5
are represented by the same union, and had been for months when the new seniority
agreement went into effect. There is no competing union or other employee concerted activity
that is being chilled or has otherwise been interfered with.
Accordingly, Respondent Employers did not violate Section 8(a)(3) and (1) by end tailing
the seniority dates of Gray Line ticket agents, and Respondent Union did not violate Sections 10
8(b)(1)(A) and 8(b)(2) by agreeing to the same.
B. Respondent Employers Lawfully Separated Employees Who Declined to Transition
to JAD Under the Parties’ Agreed Upon Terms
The General Counsel argues that Respondent Employer did not need to take any
specific action upon the elimination of the Gray Line payroll and the resulting transition of the 15
former Gray Line employees to the JAD payroll. Instead, the General Counsel asserts that by
requiring that transition, Respondent was demonstrating anti-union animus and motive.
I find this ignores the reality of the situation the Employer faced and the legitimate
business concerns it has articulated. The outsourcing of labor from Gray Line to JAD was much
more significant than simply adding a list of names to the payroll, as evidenced by the years of 20
past litigation over which employees worked for which entities. And, consolidating its workforce
under one employing agency and payroll was a reasonable step for the Employer to take, with
negligible impact on its employees.
Indeed, the process of laying off the former Gray Lines employees in this case was
essentially no different from the simple administrative process that the General Counsel 25
suggests the Employer might have used to transition those employees. Every employee was
offered continuing employment under the terms of the new collective bargaining agreement
covering all JAD employees. A majority of those employees accepted their offers and continued
working without interruption. Those who declined to work for JAD because they objected to the
CBA negotiated between their Union and their Employer were in no different position than any 30
other JAD employee who might decline to work because of objections to their contract.
Accordingly, I find that Respondent Employers did not violate Section 8(a)(3) and (1) by
requiring the former Gray Line ticket agents to accept their end tailed seniority dates as a
condition of rehire, or by terminating those agents who declined to transition to JAD under the
parties’ agreed upon terms.35
C. Respondent Unlawfully Modified the Collective-Bargaining Agreement with the Union
to Require Employees to Agree to Individual Arbitration as a Condition of
Employment
Section 8(a)(5) of the Act establishes an employer’s obligation to bargain in good faith
with respect to “wages, hours, and other terms and conditions of employment.” An employer 40
may not unilaterally institute changes regarding these mandatory subjects before reaching a
good-faith impasse in bargaining. See St. Vincent Hospital, 320 NLRB 42, 45 (1995).
Section 8(d) imposes an additional requirement when a collective-bargaining agreement
is in effect and an employer seeks to “modif[y] . . . the terms and conditions contained in” the
JD(NY)-04-19
12
contract. In such instances, the employer must obtain the union's consent before implementing
the change. In order to prove that a respondent violated Section 8(d), the General Counsel
must identify a specific term “contained in” the contract that the respondent has acted to modify.
Milwaukee Spring Division, 268 NLRB 601 (1984).
Here, both the collective-bargaining agreement Twin America had with the Union 5
covering the City Sights/JAD ticket agents prior to March 9, 2017, and the new CBA covering all
ticket agents beginning March 9, 2017, contained a dispute resolution procedure that applied to
disputes “between the Employer and the Union, or any group of employees covered by this
Agreement.” There was no inclusion or mention of any separate procedure, and specifically no
mention of individual arbitration as a mechanism for dispute resolution.10
It is undisputed that the former Gray Line ticket agents who transitioned to JAD were
given certain paperwork to complete, including agreeing to individual arbitration of disputes.
Dispute resolution was a term of employment that was already a part of the parties’ CBA, and a
change to that was not agreed to by the Union. This was not an insignificant issue, as the
resolution mechanism for disputes is at the heart of a union’s role as the collective-bargaining 15
representative of the unit.
As such, I find that Respondent Employers unlawfully modified the collective-bargaining
agreement with the Union to require employees to agree to individual arbitration as a condition
of employment.
20
CONCLUSIONS OF LAW
1. Respondent Employers, Twin America, LLC, City Sights NY, LLC, Gray Line New
York Tours, Inc. and JAD Transportation, Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.25
2. Respondents Twin America, LLC, City Sights NY, LLC and Gray Line New York
Tours, Inc. are a single employer, and are joint employers with Respondent JAD
Transportation, Inc.
30
3. The Union, United Service Workers Union, IUJAT, Local 1212, is a labor
organization within the meaning of Section 2(5) of the Act and represents a
bargaining unit comprised of workers employed by the Respondents.
4. Since in or about January 2 through April 6, 2017, Respondent Employers have 35
committed unfair labor practices within the meaning of Section 8(a)(5) and (1) and
(d) of the Act by unlawfully modifying the collective bargaining agreement with the
Union to require employees to agree to individual arbitration as a condition of
employment.
40
5. The Respondent Employers' above-described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The above violation is an unfair labor practice within the meaning of the Act.
45
7. Respondents have not otherwise violated the Act.
JD(NY)-04-19
13
REMEDY
Having found that the Respondent Employers engaged in conduct in violation of Section
8(a)(5) and (1) and (d) of the Act, I shall recommend that it cease and desist from engaging in
such conduct and take certain affirmative action designed to effectuate the policies of the Act.5
In particular, I shall recommend that, to the extent it has not already done so,
Respondent Employers shall cease and desist from soliciting individual arbitration agreements
from employees, and that it cease and desist from using signed individual arbitration
agreements previously obtained from employees for any purpose.10
I shall also recommend that Respondent Employers be required to notify employees that
they will not alter the dispute resolution procedure provided for in the parties’ CBA, which does
not require employees to arbitrate disputes with the Respondent Employers individually.
15
As to the remainder of the complaint, I recommend dismissal.
Therefore, Respondent will be ordered to post and communicate by electronic post to
employees the attached Appendix and notice. On these findings of fact and conclusions of law
and on the entire record, I issue the following recommended1320
ORDER
Respondents, Twin America, LLC, City Sights NY LLC and Gray Line New York Tours,
Inc. New York, New York, as a single employer, and JAD Transportation, as joint employers, its 25
officers, agents, and representatives, shall
1. Cease and desist from
(a) Soliciting individual arbitration agreements from unit employees and/or using 30
signed individual arbitration agreements previously obtained from unit employees for
any purpose.
(b) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.35
2. Take the following affirmative action necessary to effectuate the purposes and
policies of the Act.
(a) Notify unit employees that the Respondent Employers will not alter the dispute 40
resolution procedure provided for in the parties’ CBA, which does not require
employees to arbitrate disputes with the Employer individually, and that any
previously signed individual arbitration agreement is rescinded.
45

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended 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.
JD(NY)-04-19
14
(b) Within 14 days after service by the Region, post at each of its New York locations
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 2 after being signed by Respondent’s
authorized representative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to 5
employees are customarily posted. In addition to the physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on
an intranet or internet site and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, defaced or covered by any 10
other material. In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by Respondent at
any time since January 2, 2017.15
(c) 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 Respondent has taken to comply.
20
Dated, Washington, D.C. March 20, 2019
25
Jeffrey P. Gardner
Administrative Law Judge
30

14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(NY)-04-19

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 concerted activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT make unilateral changes to terms and conditions of employment without first
bargaining with the Union, United Service Workers Union, IUJAT, Local 1212.
WE WILL NOT alter the dispute resolution procedure provided for in the parties’ collective-
bargaining agreement without the consent of the Union.
WE WILL NOT in any like or related manner fail and refuse to bargain collectively and in good
faith with the Union as the exclusive collective-bargaining representative of our employees in
the unit or otherwise interfere with your rights under Section 7 of the Act.
WE WILL cease soliciting individual arbitration agreements from unit employees.
WE WILL cease using previously obtained individual arbitration agreements for any purpose,
pending bargaining with the Union.
Twin America LLC, City Sights NY, LLC, and Gray
Line New York Tours, Inc.__________________
(Employer)
Dated By __________________________________________
(Representative) (Title)
JD(NY)-04-19
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below:
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
You may also obtain information from the Board’s website: www.nlrb.gov.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-190704 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (212) 264-0300.