Vanguard Tours

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 250 (N.L.R.B. 1990)

250
300 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 On November 7, 1984, the judge issued an erratum to his initial decision.
3 The Respondent Employers have requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
4 In his supplemental decision, the judge found that the Board has jurisdic-
tion over the Respondent Employers under Res-Care, 280 NLRB 670 (1986);
Long Stretch Youth Home, 280 NLRB 678 (1986); and Rustman Bus Co., 282
NLRB 152 (1986). No exceptions were filed. In the absence of exceptions,
the Board issued its supplemental order of August 5, 1987, adopting the find-
ings and conclusions contained in the judge’s supplemental decision and re-
taining jurisdiction to consider the Respondents’ exceptions to the judge’s
1984 decision.
5 The Respondent Employers and the Respondent Union have excepted to
some of the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they are in-
correct. 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 excepting to the judge’s finding that Vanguard’s ‘‘Destructive Criticism’’
rule was an unlawfully broad rule against discussing wages, hours, and work-
ing conditions on company property, during working or nonworking time,
Vanguard contends that the rule only applied to ‘‘destructive criticism,’’ con-
stituting ‘‘disloyalty.’’ Despite its title, however, the rule is on its face broadly
restrictive of Sec. 7 rights. Although the rule applies only in the presence of
passengers or ‘‘prospective passengers,’’ Vanguard has not shown that it is
necessary to insulate all such persons from the broad category of employee
discussions subject to the rule. Cf. Times Publishing Co., 240 NLRB 1158
(1979), enfd. 605 F.2d 847 (5th Cir. 1979) (newspaper’s lobby area not subject
to special restrictions accorded retail areas).
We find it unnecessary to pass on the correctness of the judge’s finding that
Vanguard’s president, Danzeisen, violated Sec. 8(a)(1) by threatening employ-
ees with loss of jobs at a November 1980 meeting in Yorktown. Danzeisen’s
similar threats at a meeting in Ossining a week or two later would make the
alleged Yorktown threats cumulative.
6 Sec. 8(a)(2) reads, in pertinent part: ‘‘It shall be an unfair labor practice
for an employer . . . . (2) to dominate or interfere with the formation or ad-
ministration of any labor organization . . . .’’
7 Because we find, in agreement with the judge, that shop stewards Sprofera,
Cotto, and Martin were supervisors and agents, we find it unnecessary to pass
on the question of whether Chief Shop Steward Gerald Navin was also a su-
pervisor or an agent of management. The order would not be affected by de-
ciding the legality of his conduct.
Vanguard Tours, Inc.; Vanguard Interstate Tours,
Inc.; Bedford Bus Co., Inc.; and David
Danzeisen and Diana Picucci
Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO1 and Diana Picucci. Cases
2–CA–17769 and 2–CB–8676
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 29, 1984, and June 10, 1987, respec-
tively, Administrative Law Judge Julius Cohn issued
the attached decision and supplemental decision.2 The
Respondent Employers (Vanguard) and the Respondent
Union filed exceptions to the judge’s 1984 decision,
with supporting briefs, and the General Counsel filed
an answering brief.3
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the 1984 decision4 and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,5 and
conclusions only to the extent consistent with this De-
cision and Order.
I
The Respondent Employers, Vanguard Tours and
Bedford Bus, a wholly owned subsidiary of Vanguard,
provide school and charter bus services to school dis-
tricts and other customers. Pursuant to a series of col-
lective-bargaining agreements, the most recent being
from 1978 through 1981, and 1981 through 1984, the
Respondent Union represented the Employers’ employ-
ees in a unit of ‘‘full and part-time drivers, mechanics,
helpers, inspectors, mechanic trainees, washers, fuelers
and parts chasers.’’ There are approximately 300 driv-
ers in the recognized unit of which only 18 are full
time and members of the Union. None of the part-time
employees are union members. This case involves nu-
merous allegations of violations of Section 8(a)(1), (2),
and (3) and Section 8(b)(1)(A) and (2) of the Act re-
lated to the alleged disparate treatment of part-time
vis-a-vis full-time drivers, various threats made during
the picketing and strike undertaken by the part-timers,
and the Respondent Employers’ institution of a civil
lawsuit in state court to halt the strike and picketing.
Over 30 years ago, in Nassau & Suffolk Contractors
Assn., 118 NLRB 174, 187 (1957), the Board made
and emphasized the observation that we affirm and
emphasize today:
Employees have the right to be represented in col-
lective-bargaining negotiations by individuals who
have a single-minded loyalty to their interests.
To a significant extent (although other factors also
contributed), the events that precipitated this case
flowed from the Respondent Employers’ and Union’s
ignoring that basic principle, a principle that lies at the
heart of the unfair labor practice described in Section
8(a)(2) of the Act.6
We have little difficulty in affirming the judge’s
finding that Vanguard violated Section 8(a)(2) and (1)
by maintaining a system whereby shop stewards who
performed the function of grievance representative for
the Union, and who submitted bargaining demands and
participated in negotiations on behalf of the Union,
were supervisors of the very employees they were sup-
posed to represent or were clothed with the authority
to act for management in Vanguard’s relations with
these employees.7 See, e.g., Jeffrey Mfg. Co., 208
NLRB 75, 83 (1974).
251VANGUARD TOURS
In affirming the judge’s findings in this regard, we note that he relied in
part on Three Hundred South Grand Co., 257 NLRB 1397 (1981), and
Schwenk Inc., 229 NLRB 640 (1977). In Power Piping Co., 291 NLRB 494
(1988), decided after the judge issued his decision, the Board overruled Three
Hundred South Grand and Schwenk to the extent they suggest that any single
factor may be assigned controlling weight in determining whether an employer
has unlawfully interfered with the administration of a union through its super-
visors’ participation in intraunion affairs. Instead, all the circumstances must
be analyzed in arriving at such a determination. Id. at 497. Power Piping,
however, clearly does not require a different result in this case.
8 We find, for the reasons discussed by the judge, that Cotto is a statutory
supervisor.
9 Sprofera testified that she received this instruction from either Danzeisen
or Silvanie, Vanguard’s general manager.
10 For the reasons stated by the administrative law judge, Member Cracraft
would find that Sprofera’s comments were made in the context of her dual
role as supervisor and union steward and therefore violated Sec. 8(b)(1)(A).
Shop Stewards Al Cotto and George Martin exer-
cised independent judgment in the assignment of em-
ployees to various jobs within their respective areas of
responsibility.8 Martin testified that he tried to make
work assignments fairly, so that one employee would
not get all the ‘‘gravy’’ and another all the ‘‘garbage.’’
Although his assignment-making authority was limited
to the full-time employees at the Bedford facility at
which he acted as steward, Martin also enforced the
Company’s parking regulations when full-time employ-
ees were involved. Martin also believed that he had
authority to order full-time employees to comply with
other company policies. It is indicative of the relation-
ship between Vanguard and the Union that Martin as-
sociated his authority over full-time employees in the
enforcement of company rules with the fact that those
employees were union members. Nevertheless, given
the supervisory authority regularly exercised by Mar-
tin, the inference is inescapable that his authority to
enforce company rules came at least in large part from
the Company itself.
Shop Steward Joanne Sprofera, one of the chief ac-
tors in the events here, was an assistant dispatcher.
Sprofera performed the terminal manager’s supervisory
duties for about 2 to 3 hours a day, after the latter left
for the afternoon, and on at least one occasion gave an
employee a disciplinary reprimand. In addition,
Sprofera was used by Vanguard to order drivers to per-
form the difficult job of removing tire chains from
buses.
II
Before we proceed with the major issues, we shall
dispose of the Union’s and the Employers’ responsi-
bility for some of the strike-related alleged misconduct
of Sprofera and Cotto. The judge found that Sprofera’s
surveillance constituted an 8(a)(1) violation by Van-
guard and an 8(b)(1)(A) violation by the Union. The
judge also found that Vanguard violated Section
8(a)(1) when Sprofera told employees that they could
be fired if they continued their strike activity. He fur-
ther found her additional comment, that the Union’s
secretary-treasurer believed that the strike was illegal
and that the strikers could be fired, to constitute a vio-
lation of Section 8(b)(1)(A) by the Union. Cotto en-
gaged in similar, though not identical, conduct. He told
an employee that it was foolish to go on strike. Cotto
further reported to employees the opinion of the union
secretary-treasurer that the strike was a wildcat strike
which violated the collective-bargaining agreement and
would result in their discharge. The judge found
8(a)(1) and 8(b)(1)(A) violations.
We agree that Sprofera’s surveillance, and her threat
of discharge, were attributable to Vanguard and vio-
lated Section 8(a)(1). Thus, during the strike, Sprofera
was instructed to go out and take down the names of
the employees on the picket line.9 She did so and, ac-
cording to the credited testimony, informed the strikers
that they were, or were going to be, fired. Later that
day, Danzeisen, the president of Vanguard, told a
group of five employees that the strikers had quit their
jobs. We agree with the judge that Danzeisen’s state-
ment was unlawful, as it was tantamount to dis-
charging the strikers. It also constituted, implicitly, a
ratification by Vanguard of Sprofera’s threat of dis-
charge. Thus, even if Sprofera was not a supervisor,
the strikers would have been wholly justified under
these circumstances in concluding that the threat made
by Sprofera in carrying out her instructions emanated
from Vanguard itself. That being the case, Sprofera’s
writing down the names of the pickets contempora-
neously with her threat of discharge also would have
appeared to a reasonable employee to be an act of sur-
veillance directed by Vanguard.
However, even Sprofera’s dual status as shop stew-
ard does not make the above conduct attributable to
the Union. Her conversation with the employees leads
to the inference, drawn above, that she was acting and
speaking on Vanguard’s, not the Union’s behalf. Her
additional remark, relating the Union’s opinion that the
strike was illegal, was merely an expression of that
opinion and carried no threat on the Union’s part.
Therefore, we reverse the judge’s findings of
8(b)(1)(A) violations during that incident and dismiss
the allegations.10
Similarly, Cotto’s reporting of the union officer’s
opinion carried no threat of union action. His statement
that an employee was foolish to go on strike is also
devoid of threat. We therefore reverse and dismiss the
allegations of 8(a)(1) and 8(b)(1)(A) violations by the
Respondents, acting through Cotto.
The judge found 8(a)(1) and 8(b)(1)(A) violations in
a separate incident in which Sprofera shoved part-time
employee Rescigno in response to Rescigno’s failure
to answer a radio call, directed to her in the bus she
was driving. Rescigno presumably failed to answer be-
cause she knew the call was for part-time drivers to as-
sist in putting tire snow-chains on the buses. The judge
found that Sprofera assaulted Rescigno because she en-
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Although the contract requires part-time employees to pay agency-shop
fees to the Union, that provision has not been enforced.
12 It might be argued that the dual status of the shop stewards-supervisors
made the filing of grievances appear to be futile. However, it is equally infer-
able that the employees agreed that they lacked viable contractual claims.
gaged in what was, by the judge’s implication, con-
certed protected activity with other part-time drivers,
and that such retaliation constituted a violation of Sec-
tion 8(a)(1) on behalf of Vanguard and a violation of
Section 8(b)(1)(A) on behalf of the Union. Vanguard
excepts to this finding solely on the ground that
Sprofera is neither a supervisor nor its agent. We reject
that contention and affirm the 8(a)(1) finding. On the
other hand, we see no connection between this incident
and the Union. Sprofera acted here in her capacity as
a supervisor, frustrated in her attempt to exercise her
authority to have certain work performed. We dismiss
the 8(b)(1)(A) allegation.
III
One of the major issues in this case concerns the
Respondents’ joint maintenance of one system of
wages, hours, and benefits for employees classified as
‘‘regular’’ or ‘‘full-time’’ employees and another, less
favorable, system for ‘‘part-time’’ drivers. Pursuant to
the Respondents’ 1978–1981 collective-bargaining
agreement, all of the ‘‘regular full-time’’ employees
were subject to a union-security provision requiring
that they ‘‘become and remain members of the Union
as a condition of their employment.’’ Part-time drivers,
on the other hand, were discouraged from seeking
union membership, and some were told by shop stew-
ards that they could not join. Presumably as a result,
all ‘‘regular’’ employees, but no ‘‘part-time’’ employ-
ees, were members. This distinction underlies the Gen-
eral Counsel’s contention that the disparate treatment
of full-time and part-time employees was based on
union membership. The judge found merit in this con-
tention, and found that Vanguard thereby violated Sec-
tion 8(a)(1), (2), and (3) and that the Union violated
Section 8(b)(1)(A) and (2) by its participation in such
a discriminatory scheme.
From the point of view of the ‘‘part-time’’ drivers,
there is undoubtedly much that is unfair in the system.
However, we do not find that the discrimination prac-
ticed here was based on union membership. The prob-
lem with the General Counsel’s case on this issue is
that the disparate treatment accorded the two classes of
employees, ‘‘regular’’ and ‘‘part-time,’’ is permitted
by the 1978–1981 contract. Moreover, we cannot dis-
miss Vanguard’s contention that even if all of the
‘‘part-time’’ employees had become union members,
Vanguard would have had no obligation to convert any
of them to ‘‘regular’’ status under the contract.
The contract itself is not under attack here. Neither
is it alleged that its negotiation by the Union violated
the Union’s duty of fair representation.
The contract, after reciting Vanguard’s recognition
of the Union as the exclusive bargaining agent for all
full-time and part-time employees in certain job classi-
fications, sets forth the following definitions:
A regular employee is one who works as a full-
time employee for a period of two (2) months. A
full-time employee should be defined as one
whose normal trips consist of seven (7) hours
constantly during the normal work day.
The ‘‘normal work day,’’ despite the 7-hour minimum
quoted above, is 8 hours, beginning for drivers at var-
ious times between 6 and 8 a.m.
As there is no separate definition of part-time em-
ployees, that category presumably included all unit em-
ployees who did not fall within the quoted definitions.
The principal effects of failing to qualify as a ‘‘reg-
ular’’ or ‘‘full-time’’ employee, besides exempting an
employee from the union membership requirement, are
that one is paid a lower wage rate, is not automatically
‘‘on the clock’’ for a full 8-hour day, and does not
participate in major fringe benefit plans.11
The General Counsel contends and the judge found
that there was union membership-based discrimination
because nonmember part-time drivers who had average
workweeks of over 35 hours, some for extended peri-
ods, were not reclassified as ‘‘regular’’ employees and
given the benefits accompanying that status. The first
of our difficulties with this finding is that the proof is
insufficient to show that any of these drivers met the
rather stringent requirements of the contractual defini-
tions. In the absence of further evidence or clarifying
argument, we cannot be clear on the proper interpreta-
tion of the requirement that an employee work ‘‘as a
full-time employee for a period of two (2) months.’’
Must this full-time work be consecutive? If so, the
record does not reveal whether any part-time drivers
did so. There is evidence that some part-time drivers
complained to the Union that they qualified for ‘‘reg-
ular’’ status but had not been reclassified. However,
the Union ascertained that the hours claimed as mak-
ing them eligible were not all within the ‘‘normal
working day.’’ There is no evidence that any employ-
ees filed formal grievances or otherwise challenged the
Union’s representations. Given this, neither Vanguard
nor the Union had a legal obligation to see that they
were reclassified.12
The main impediment to the use of this proceeding
to remedy the perceived unfairness of the dual system
of compensation and benefits is that the contract itself
(which is not subject to attack here) leaves Vanguard
free to do exactly what it did, which was to schedule
part-time drivers so as to prevent them from qualifying
for ‘‘regular’’ status, and thus maintain a quota system
limiting the number of ‘‘regular employees.’’ But there
is no linkage between union membership and being a
253VANGUARD TOURS
13 It is the legally valid contractual barrier to ‘‘regular’’ status that distin-
guishes this case in this respect from Narragansett Restaurant Corp., 243
NLRB 125, 130 (1979), on which the judge relied. There, the distinction be-
tween ‘‘regular’’ and ‘‘casual’’ employees had no objective basis except for
union membership.
14 The same cannot be said for Vanguard’s reduction of employee Gerosa’s
hours in order to prevent her from ‘‘getting into the Union.’’ That credited
admission by a Vanguard supervisor constitutes a prima facie case of member-
ship-based discrimination. Vanguard’s defense, that Gerosa’s deleted run could
be performed more economically by a regular full-time driver, was discredited
as not being the real reason for the reduction of hours. We agree with the
judge that Vanguard has not carried its burden of rebuttal under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
15 We adopt the judge’s finding that the Respondents’ maintenance of a pen-
sion plan that, on its face, made participation depend on union membership,
violated Secs. 8(a)(1), (2), and (3); 8(b)(1)(A); and 8(b)(2).
16 Vanguard provides transportation for public school students.
17 A strike is an unfair labor practice strike if one of the purposes of the
strike is to protest the employer’s unfair labor practices. See, e.g., Airport
Parking Management, 264 NLRB 5, 11 (1982), enfd. 720 F.2d 610 (9th Cir.
1983).
‘‘regular employee’’ other than the requirement, once
an individual became a regular employee, that he join
the Union pursuant to the union-security clause. Sim-
ply joining the Union without having previously
worked the requisite number of hours for the contrac-
tually specified period would not qualify an individual
as a ‘‘regular’’ employee.13 Thus the two-tier wage
and benefit system provided no objective basis for em-
ployees to feel ‘‘encouraged’’ to join the Union. Nor
are we able to infer, on this record, that Vanguard’s
purpose in maintaining a quota on ‘‘regular’’ employee
status was to encourage union membership or to make
union membership more attractive. Vanguard’s eco-
nomic motivation for limiting the number of ‘‘regular’’
employees appears to be paramount, and in any event
would be sufficient to rebut a prima facie case if one
had been established.14 For these reasons, we dismiss
the allegations of unlawful maintenance of the dis-
parate system.
We must also reverse the judge’s finding of
unalleged violations of Section 8(a)(1), (2), and (3) and
Section 8(b)(1)(A) and 8(b)(2) by the Respondent Em-
ployer’s and Union’s settlement of a lawsuit instituted
by the Union to enforce supplemental unemployment
benefit payments. Both the Respondents have ex-
cepted, arguing that the violations found are barred by
Section 10(b). We agree. The only record evidence as
to such a settlement indicates that it occurred in 1978
or 1979. The findings are thus barred by Section
10(b).15
IV
Frustrated by a number of assorted grievances (we
do not use this term in the technical sense), the part-
time drivers struck on January 9, 1981. The nature of
that strike is another of the major issues presented
here.
The strike followed a lull in contract negotiations
after Vanguard offered the part-timers a small raise
and they rejected it. The lull in negotiations overlapped
the 2-week Christmas vacation. When the drivers re-
turned to work, they were instructed to remove tire
chains from their buses. In the past, the practice was
first to drive the buses out of the ‘‘yard’’ to a black-
topped area. This time, however, they were instructed
to stay inside the ‘‘yard.’’ Removing the chains inside
the ‘‘yard’’ was a messier job, and particularly upset
the part-timers. Some of them thought that the chains
had been put on in the first place just to ‘‘aggravate’’
them. A group of part-timers met to discuss their frus-
trations, including their dissatisfaction with the wage
disparity, with the failure of the Union’s negotiator to
communicate with them, with their being ‘‘bound’’ to
the Union, with having Sprofera as their shop steward
in name but in reality ‘‘strictly a supervisor,’’ and with
the tire chain incident. They decided to strike and form
a picket line where they might ‘‘get the attention of
the union, maybe the school board,16 maybe some-
body, somewhere, somehow would help.’’
The cause of the strike is important, because the
strikers arguably were bound by an unusual ‘‘no-
strike’’ clause which provided that:
There shall be no strike or lock-out or any job
action of any kind taken by any employee, under
the provisions of this Agreement, without the ex-
press prior written consent of the Secretary-Treas-
urer and Business Manager of the Union. Employ-
ees who engage in unauthorized strike activity or
unauthorized job action shall be subject to imme-
diate discharge, without recourse.
Although several objections might be raised to the ap-
plication of this provision to the strikers, we agree
with the judge that the strike was an unfair labor prac-
tice strike that was protected despite this provision.
The judge relied in large part on what he found to
be the unlawful discrimination in wages and benefits
as between members and nonmembers of the Union.
We have reversed the unfair labor practice findings re-
lating to this economic discrimination, except for the
pension plan discrimination. However, we find that a
substantial contributing factor to the strike was the sys-
tem of dual representation by shop steward-supervisors
and the sense of futility that system caused with regard
to the part-timers’ expectation of having the Union as-
sert itself in their behalf. This sense of futility was ex-
acerbated by the fact that the supervisors were not only
the employees’ grievance representatives, but also
served as union contract negotiators.
The 8(a)(2) violations found here, which, in part,
caused the strike,17 were clearly ‘‘destructive of the
foundation on which collective bargaining must rest.’’
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 281
(1956). The strike was, therefore, protected concerted
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 We find it unnecessary to pass on whether these actions also violated Sec.
8(a)(3), as the remedy will be the same.
19 Even though the picketing had ceased on January 12, on that same day,
Vanguard obtained an order to show cause for holding 10 striking employees
in contempt of court for failing to comply with the TROs. The order to show
cause named six of the seven strike leaders (it failed to name Stueck), and
four additional employees.
20 The other defendants also had signed stipulations of discontinuance of the
lawsuit that Vanguard had presented to them.
21 Contrary to Vanguard’s contention, there is no evidence that the state
judge granted its application for a preliminary injunction. On January 15, he
merely extended the temporary restraining order, which action was not con-
tested. Significantly, he announced in open court that he had not read all the
papers in the case and was not aware of all the issues presented, but knew
that the suit was based on a no-strike clause. When informed that the defend-
ants were not union members, the judge expressed puzzlement as to how the
clause applied to them.
22 Because the lawsuit has terminated, we need not decide now whether this
was a suit that would have been dismissible on the basis of Federal law pre-
emption, inasmuch as the lawfulness of the strike sought to be enjoined is one
of the very issues before us in the instant case (Alabama By-Products Corp.
v. Mine Workers Local 1288, 109 LRRM 2427 (N.D. Ala. 1981)), or whether
the suit was maintainable under Sec. 301(a) of the Act as one over which the
Board shares jurisdiction with Federal and state courts. (Smith v. Evening
News Assn., 371 U.S. 195 (1962); Avco Corp. v. Machinists Lodge 735, 390
U.S. 557 (1968).) See Sovern, Section 301 and the Primary Jurisdiction of the
NLRB, 76 Harv. L. Rev. 529, 559–561, 570–572 (1963); Transit Union v.
Lockridge, 403 U.S. 274, 292–301 (1971). See generally Cox, Labor Law Pre-
emption Revisited, 85 Harv. L. Rev. 1337 (1972). We assume for the purposes
of this discussion that Vanguard had a reasonable basis at least for believing
that the state court had jurisdiction under Sec. 301(a) of the Act. As Avco
Corp., supra, notes, jurisdiction to entertain a claim is distinct from the ques-
tion whether a claim has merit.
activity, and did not violate the contractual ‘‘no-
strike’’ provision. Servair, Inc., 265 NLRB 181, 183–
184 (1982), enfd. 726 F.2d 1435 (9th Cir. 1984).
It is also arguable that, aside from the existence of
the ‘‘no-strike’’ clause, this strike was unprotected be-
cause it was an unauthorized strike that derogated the
Union’s representative status. River Oaks Nursing
Home, 275 NLRB 84, 86 (1985). However, whether or
not that doctrine would otherwise be applicable, we
decline for obvious reasons to apply it where, as here,
the strike is in response to an unfair labor practice that
was calculated to ‘‘deprive employees of any meaning-
ful representation.’’ Lustrelon, Inc., 242 NLRB 561,
571 (1979).
Having found that the strike was protected, we af-
firm the judge’s finding that Vanguard violated Section
8(a)(1) by effectively discharging some of the strikers
(by telling them that they were considered to have
quit), by offering them reinstatement with loss of se-
niority, and by conditioning their reinstatement on their
signing a stipulation limiting certain of their legal
rights.18
V
The strike, in turn, led to the filing of a state court
lawsuit which the judge found violated Section 8(a)(1)
and (3). On Friday, January 9, 1981, the day the strike
started, Vanguard instituted a lawsuit in a New York
State court against 24 striking employees, seeking a
permanent injunction and $500,000 in damages. The
suit was based on the no-strike clause. Vanguard acted
immediately to obtain temporary restraining orders
(TROs) against the picketing. Thereafter, Vanguard
began serving the 24 named defendants with TROs
over the January 10–11 weekend. No picketing oc-
curred the weekend of January 10–11. The TROs or-
dered all 24 employees to appear in court on January
15.
Picketing ceased on Monday, January 12, after serv-
ice of the TROs.19 Between the time Vanguard served
the TROs and the January 15 hearing date, it released
all the employees, except the seven strike leaders, from
the requirement that they appear in court, and offered
all but the seven strike leaders conditional reinstate-
ment.20 On January 15 the strike leaders appeared in
state court and were advised by the judge to obtain an
attorney.21 At that time, Vanguard formally withdrew
the charges against all but the seven strike leaders. In
this regard, John Silvanie, Vanguard’s general man-
ager, testified that he had received reports that employ-
ees Genco, Papineau, Dickerson, Stueck, Hughes,
Picucci, and Resigno had particular involvement in the
strike and that he had ‘‘decided not to offer reemploy-
ment to any of those people [strike leaders] that I felt
were misinforming the part-timers.’’ Silvanie also ac-
knowledged that the seven strike leaders were, in his
view, the ringleaders of the strike.
The lawsuit against the seven strike leaders was con-
tinued to January 23. On January 23 the seven strike
leaders appeared in court with an attorney. Vanguard
requested dismissal of the suit against those seven em-
ployees, and the judge granted the request.
In deciding whether any aspect of the lawsuit vio-
lated the Act, we must be guided by Bill Johnson’s
Restaurant v. NLRB, 461 U.S. 731 (1983). Bill John-
son’s involved the Board’s attempt to enjoin a pending
state court suit. However, the Supreme Court’s opinion
contains general guidance with respect to cases where,
as here, the lawsuit has terminated without a judgment
on the merits.22
The Court’s actual holding, in brief, was that the
dual policies of the first amendment right to file meri-
torious suits and the State’s compelling interest in the
maintenance of domestic peace combine to protect
from Board interference a state lawsuit over tortious
conduct during a labor dispute, absent a sustainable
finding that the suit has no reasonable basis. As the
Court stated in Bill Johnson’s:
[I]f the employer’s case in the state court ulti-
mately proves meritorious and he has judgment
against the employees, the employer should also
prevail before the Board, for the filing of a meri-
torious lawsuit, even for a retaliatory motive, is
not an unfair labor practice. If judgment goes
against the employer in the state court, however,
or if his suit is withdrawn or is otherwise shown
to be without merit, the employer has had its day
255VANGUARD TOURS
23 That proposition, unless qualified, could discourage withdrawal of claims
and thus promote, rather than inhibit, nonmeritorious litigation. We are reluc-
tant to read such a result into the Supreme Court’s language in Bill Johnson’s,
absent more specific direction from the Court itself. Cf. our decision on re-
mand in Bill Johnson’s, in which we declined to draw the inference that settle-
ment of a claim establishes that the claim lacks merit, in part because such
a rule would discourage settlements. Bill Johnson’s Restaurants, 290 NLRB
29, 31 (1988).
24 Because the filing of the suit cannot be found unlawful absent a retalia-
tory motive, we need not decide whether the suit was nonmeritorious at the
outset.
Contrary to his colleagues, Member Devaney would find that Vanguard’s
motivation for filing the suit was illuminated by the actions post-January 15
in continuing the suit against the strike leaders. For this reason, he would find
that Vanguard’s filing and maintaining this lawsuit, including contempt pro-
ceedings, against employees was in retaliation for their engaging in a protected
strike.
25 For example, nothing in this decision should be read to imply that the
filing of a suit seeking a Boys Markets injunction, without more, will violate
the Act, even if the injunction is denied. Boys Markets v. Retail Clerks Local
770, 398 U.S. 235 (1970). Because such a suit is the employer’s only means
of enforcing a contractual no-strike clause, the mere filing of such a suit does
not imply a retaliatory motive.
in court, the interest of the State in providing a
forum for its citizens has been vindicated, and the
Board may then proceed to adjudicate the . . .
unfair labor practice case.
461 U.S. at 747 (emphasis added). The Court’s contin-
ued emphasis on some showing of lack of merit as a
prerequisite to adjudication of the question of retalia-
tory motive implies that even at the postlawsuit stage,
we may not hold unlawful the maintenance of any
meritorious lawsuit.
The administrative law judge, implicitly adopting
this approach, took the quoted Bill Johnson’s language
to mean that the withdrawal of a lawsuit is for this
purpose equivalent to a showing of lack of merit. At
first blush, this appears to be a reasonable interpreta-
tion of the Court’s language. But the facts of this case
make it unnecessary to announce so broad a propo-
sition.23 For the reasons set forth below, while we find
that Vanguard’s initial filing of the lawsuit was not un-
lawful, we find that Vanguard’s proceeding with the
suit, after the suit had accomplished its stated purpose,
was nonmeritorious and retaliatory, and that our tradi-
tional remedies will apply.24
First, we find that the General Counsel has not
shown, by a preponderance of the evidence, that the
suit was originally filed out of a retaliatory motive. As
we find below, the continuation of the suit after Janu-
ary 15 against the strike leaders, when the strike had
been broken and the suit had been dismissed against
the other strikers, was clearly for the purpose of retali-
ating against the strike leaders. However, the suit had
been filed and, until January 15, maintained against 24
of the strikers, with at least a colorable basis in the
collective-bargaining agreement. Thus, it is not appar-
ent that the suit was, in its inception, intended to retali-
ate either against the striking employees in general or
specifically against the strike leaders. Accordingly, we
do not find that the filing of the lawsuit, or its mainte-
nance before January 15, was unlawful.
Vanguard’s continuation of the suit after the strike,
in effect, had ended is a different matter. In this re-
gard, we emphasize that the stated purpose of the suit
was to end the strike and the picketing, and to collect
the damages that continuation of the strike might have
caused. By January 15, when the remaining defendants
appeared in court in response to the original order to
show cause, the picketing had ceased (indeed, had
ceased 3 days previously) and the strike was effec-
tively broken. Thus, Vanguard was satisfied that all the
strikers whom it would permit to return to work had
or were about to do so. Nevertheless, Vanguard pur-
sued the litigation for another week with no apparent
purpose but to punish the strike leaders. Although in
other circumstances a plaintiff may have been entitled
to continue to seek a permanent injunction25 and
$500,000 in damages, Vanguard’s actions belie these
as its real motivations.
In this case the issues of the merits of the lawsuit
and its motivation are intertwined. At least at the stage
at which Vanguard finally withdrew the suit, we take
the withdrawal, at least presumptively, to be an admis-
sion by Vanguard that the suit lacked merit. We hold
that such a prima facie showing is sufficient, in the
circumstances presented here, to satisfy the Bill John-
son’s postlawsuit requirement of lack of merit and to
place on Vanguard the burden of rebutting the infer-
ence that the suit lacked merit after January 15. Van-
guard attempted to rebut this inference through two
contentions. Vanguard’s first contention is that the
state court granted a preliminary injunction, thus show-
ing that Vanguard had convinced the court that it had
a substantial likelihood of succeeding on the merits.
But, as discussed above, at footnote 21, there was no
preliminary injunction issued, or any other finding of
probable merit. Vanguard’s second contention is that it
withdrew the suit once it had achieved its desired and
lawful results. The difficulty with this contention is
that Vanguard did not withdraw the suit when it
achieved all of those results, but continued it in order
to harass the strike leaders. Only when it achieved this
unlawful result did Vanguard withdraw the suit. Be-
cause of the undisputed evidence of discriminatory mo-
tivation, discussed above, and the lack of any argument
by Vanguard as to why the suit was dismissed as to
all others, we find that the evidence supports a finding
that Vanguard’s actions were taken against the seven
strike leaders in retaliation for their leadership in the
strike. The continuation of the suit coerced employees
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 Because the remedy will be the same whether or not we find that continu-
ation of the lawsuit violated Sec. 8(a)(3) as well, we find it unnecessary to
pass on that allegation.
Athough we have not adopted all the judge’s unfair labor practice findings,
we shall retain his recommended broad cease-and-desist orders, as the remain-
ing violations warrant them under Hickmott Foods, 242 NLRB 1357 (1979).
27 In accordance with Board precedent, Member Cracraft would find that a
respondent, once put on notice that its lawsuit is nonmeritorious, is entitled
to a reasonable amount of time within which to refrain from pursuing a law-
suit. Laborers Local 261 (Skinner, Inc.), 292 NLRB 1035 fn. 6 (1989). How-
ever, under the unique circumstances of this case, she concurs in the finding
that Vanguard’s continuation of its state court action against the seven strike
leaders violated Sec. 8(a)(1). Because of the undisputed evidence of discrimi-
natory motivation, and the lack of any argument by Vanguard as to why the
suit was reasonably continued against the strike leaders when it was dismissed
as to all others, Member Cracraft agrees that the evidence supports a finding
that Vanguard’s actions were taken against the seven strike leaders in retalia-
tion for their leadership role in the strike. Accordingly, she concurs in the
8(a)(1) finding on this basis.
in their right to engage in what we have found to have
been a lawful strike, and thus violated Section
8(a)(1).26 We so find.27
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusions of Law 3(a), 5, 7, 14(b),
14(d), 14(e), and 15 and renumber accordingly. Re-
numbered Conclusions of Law 8 and 9 are amended by
deleting references to ‘‘Union’’ activities and the vio-
lations of Section 8(a)(3).
2. Substitute the following for renumbered Conclu-
sion of Law 11.
‘‘11. By maintaining a civil lawsuit against certain
striking employees who had been engaged in an unfair
labor practice strike and by seeking to have them held
in contempt of court when it no longer had a non-
retaliatory motive for doing so, Respondent Vanguard
violated Section 8(a)(1) of the Act. Additionally, by
requiring certain of the named defendants in said civil
action, as a condition of reinstatement, to sign a stipu-
lation of discontinuance of the action which provided,
among other things, for reinstitution of the lawsuit if
said defendants engaged in similar activities, Respond-
ent Vanguard further violated Section 8(a)(1) of the
Act.’’
3. Substitute the following for renumbered Conclu-
sion of Law 13.
‘‘13. Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act by executing and maintaining a col-
lective-bargaining agreement with Respondent Van-
guard which provided for a pension plan in which par-
ticipation was based on membership in the Union.’’
ORDER
A. The National Labor Relations Board orders that
Respondents Vanguard Tours, Inc. and Bedford Bus
Co., Inc., collectively the Respondent Company,
Ossining and Yorktown, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of jobs, dis-
charge, and closure of a terminal if they persist in
seeking increased wages and better working conditions.
(b) Coercing employees in the exercise of their
rights by warning them to stay out of labor problems,
and assaulting employees who were engaged in pro-
tected concerted activities.
(c) Engaging, or attempting to engage, in illegal sur-
veillance of the activities of employees engaged in a
strike in protest of Respondent Company’s unfair labor
practices.
(d) Threatening employees with loss of seniority,
loss of benefits, and discharge unless they abandoned
their strike activity.
(e) Promulgating and maintaining an overly broad
rule that prohibits discussions of wages, hours, and
working conditions at all times including employees’
nonworking time.
(f) Interfering with the administration of Local 456,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO
(Respondent Union) by recognizing or dealing with
any person as shop steward or any other agent of that
Union, while that person is its supervisor or agent.
(g) Maintaining and giving effect to a provision in
a collective-bargaining agreement with the Union that
limits eligibility to participate in a pension plan to
those employees who are members of the Respondent
Union.
(h) Discharging or otherwise disciplining employees
because they engaged in a protected strike, work stop-
page, or other concerted activity for their mutual aid
or protection.
(i) Refusing to reinstate in a timely fashion, or to re-
instate at all, unfair labor practice strikers, or otherwise
discriminating against them in their hiring tenure.
(j) Further conditioning reinstatement of unfair labor
practice strikers on their signing a stipulation of dis-
continuance of litigation instituted against them which
bound reinstated employees to refrain from certain pro-
tected concerted activities.
(k) Discouraging union membership of employees
by reducing the number of hours of their employment.
(l) Maintaining a baseless lawsuit, including con-
tempt proceedings, against employees in retaliation for
their engaging in protected concerted activities.
(m) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the following named employees: Helen
Genco, Florence Parsons, Mary Rescigno, Camille
Papineau, Joseph Hughes, Rosemarie Steuck, Lauren
Dickerson, and Diana Picucci immediate and full rein-
statement to their former jobs or, if those positions no
257VANGUARD TOURS
28 Interest shall be computed as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
29 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’ 30 See fn. 29, supra.
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for lost earnings and
other benefits in the manner set forth in the remedy
section of the judge’s decision.28
(b) Make whole those drivers listed in footnote 10
of the remedy section of the judge’s decision, and oth-
ers similarly situated, for losses they may have sus-
tained during the period of their conditional reinstate-
ment following discharge.
(c) Make whole those employees named as defend-
ants in the civil action and contempt proceedings un-
lawfully continued against them in the Supreme Court
of the State of New York for losses they may have
sustained as a result of such litigation, including all
legal expenses incurred in the defense of such suits.
(d) Jointly and severally with Respondent Union,
make whole those employees who were unlawfully ex-
cluded from participation in the pension fund, for any
loss of benefits and/or contributions that should have
been made to the fund on their behalf for a period
commencing 6 months prior to the filing of the
charges.
(e) Jointly and severally with Respondent Union,
compensate the pension fund for any administrative
expenses and loss of interest incurred by such fund as
a result of its acceptance of retroactive benefit pay-
ments.
(f) Make employee Gloria Gerosa whole for any loss
of earnings or other benefits she may have suffered by
reason of the unlawful reductions of her hours, in the
manner set forth in the remedy section of the judge’s
decision, and, in addition, convert her to full-time sta-
tus.
(g) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay
and other sums due under the terms of this Order.
(h) Post at its principal office and terminals copies
of the attached notice marked ‘‘Appendix A.’’29 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent Company’s authorized representative, shall be
posted by the Respondent Company immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent Company to ensure
that the notices are not altered, defaced, or covered by
any other material.
(i) Notify the Regional Director in writing within 20
days from the receipt of this Order what steps Re-
spondent Company has taken to comply.
B. The National Labor Relations Board orders that
Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO (Respondent Union), its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Restraining and coercing employees in the exer-
cise of their Section 7 rights by its shop stewards and
agents advising them to stay out of labor problems and
not get involved.
(b) Refusing to show copies of the collective-bar-
gaining agreement to bargaining unit employees at
their request.
(c) Including in its collective-bargaining contracts
with Respondent Company any provisions that require
membership by employees in the Respondent Union as
a condition for participation in pension plans.
(d) In any other manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Respondent Company,
and in the manner set forth in the remedy section of
the judge’s decision, make whole any employees who
may have suffered loss of benefits by reason of their
exclusion from a pension plan for which eligibility was
limited to union members.
(b) Jointly and severally with Respondent Company,
compensate the pension fund for any administrative
expenses and loss of interest incurred by the fund as
a result of their acceptance of retroactive benefit pay-
ments.
(c) Post at all of the Respondent Union’s business
offices and meeting halls copies of the attached notice
marked ‘‘Appendix B.’’30 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by Respondent Union’s author-
ized representative, shall be posted by Respondent
Union immediately upon receipt, and be maintained by
it for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent Union to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Furnish to the Regional Director for Region 2
signed copies of the notice for posting by Respondent
Company in places where notices to employees are
customarily posted.
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20
days from the receipt of this Order, what steps have
been taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed insofar as it alleges unfair labor
practices against David Danzeisen, individually.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed with respect to allegations not spe-
cifically found to have violated the Act.
APPENDIX A
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 or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with loss of jobs,
discharge, and closure of terminals because they seek
increased wages and better working conditions.
WE WILL NOT discharge or otherwise discriminate
against our employees because they engaged in pro-
tected concerted activities.
WE WILL NOT warn employees to stay out of labor
problems and assault employees because they engaged
in protected concerted activities.
WE WILL NOT keep the activities of our employees
who are engaged in a strike in protest of unfair labor
practices under surveillance.
WE WILL NOT threaten unfair labor practice strikers
with loss of seniority, loss of benefits, and discharge
unless they abandon their strike.
WE WILL NOT create a rule or try to enforce a rule
prohibiting solicitation or discussion of wages, hours,
and working conditions by our employees during non-
working time.
WE WILL NOT interfere with the administration of
Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO by recognizing or dealing with any person
as shop steward or other agent of the Union while that
person is our supervisor or agent.
WE WILL NOT include or maintain in any collective-
bargaining agreement with Local 456, any provisions
that require membership in such Union as a condition
for participation in a pension plan.
WE WILL NOT discharge employees who are striking
in protest of our unfair labor practices; nor will we re-
instate such discharge strikers conditionally.
WE WILL NOT maintain a baseless lawsuit, including
contempt proceedings, against employees in retaliation
for their engaging in protected concerted activities, nor
will we discontinue such lawsuits on condition that
they be reinstituted if employees engage in similar ac-
tivity.
WE WILL NOT curtail the hours of employment of
employees because they engage in union or other pro-
tected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer Helen Genco, Mary Ann Rescigno,
Camille Papineau, Rosemarie Steuck, Florence Par-
sons, Lauren Dickerson, Joseph Hughes, and Diana
Picucci immediate and full reinstatement to their
former jobs or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and WE WILL make them whole by the pay-
ment of backpay with interest.
WE WILL make whole those strikers who were con-
ditionally reinstated for any loss of pay or benefits in-
curred during the period of their unlawful conditional
reinstatement, with interest.
WE WILL make Gloria Gerosa whole for any loss of
earnings or other benefits sustained by her during the
period of our curtailment of her working hours, with
interest, and convert her to full-time status.
WE WILL make whole, jointly and severally with the
Union, those employees who were unlawfully excluded
from participation in the pension fund, for any loss of
benefits and/or contributions that should have been
made to the fund on their behalf for a period com-
mencing 6 months prior to the filing of the charges,
with interest.
WE WILL jointly and severally with the Union com-
pensate the pension fund for any administrative ex-
penses and loss of interest incurred by such fund as a
result of its acceptance of retroactive benefit payments.
WE WILL make whole all named party defendants in
the civil suit and contempt action unlawfully continued
by us against them in the Supreme Court of the State
of New York, for all losses and legal expenses in-
curred in the defense of the lawsuit.
VANGUARD TOURS, INC.; BEDFORD BUS
CO., INC.
APPENDIX B
NOTICE TO MEMBERS
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 or-
dered us to post and abide by this notice.
259VANGUARD TOURS
1 At the hearing the General Counsel withdrew the allegations in the com-
plaint insofar as they affected Vanguard Interstate Tours, Inc. and Westchester
Coach, Co., Inc., as the former no longer has any employees, and the latter
has been sold since 1978.
WE WILL NOT, by our shop stewards and agents, ad-
vise employees to stay out of labor disputes and not
get involved.
WE WILL NOT refuse to show the collective-bar-
gaining agreement to employees at their request.
WE WILL NOT include or maintain in any collective-
bargaining agreement with Vanguard Tours, Inc., Bed-
ford Bus Company, or any other employer, any provi-
sions that require membership in our Union as a condi-
tion for participation in pension funds.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, jointly and severally with Vanguard Tours
and Bedford Bus Co., make whole those employees
who were unlawfully excluded from participation in
the pension fund for any loss of benefits and for con-
tributions that should have been made to the fund on
their behalf for a period commencing 6 months prior
to the filing of the charges.
WE WILL jointly and severally with Vanguard Tours
and Bedford Bus Co., compensate the pension fund for
any administrative expenses and/or interest incurred by
such fund as a result of its acceptance of retroactive
benefit payments.
LOCAL 456, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL–CIO
Michael J. DiMattia, Esq. and Mary Ann Mills, Esq., for the
General Counsel.
Joseph H. Rosenthal, Esq. and Stephen H. Kahn, Esq.
(Friedlander, Gaines, Cohen, Rosenthal, and Rosenberg),
for Respondent Company.
Roy Barnes, Esq., of Hempstead, New York, for Respondent
Union.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. This case was
tried in New York, New York. On charges filed in Case 2–
CA–17769 on January 15, and served on January 16, 1981,
and in Case 2–CB–8676 filed on January 21 and served on
January 22, 1981, both charges being thereafter amended, the
Regional Director for Region 2 issued an order consolidating
cases and a consolidated complaint on March 31, 1981, and
subsequently an amended consolidated complaint on Decem-
ber 15, 1981. The amended complaint alleged that Vanguard
Tours, Inc., and other named corporations (collectively Re-
spondent Company or Vanguard) and David Danzeisen, an
individual, violated Section 8(a)(1), (2), and (3) of the Act;
and that Local 456, International Brotherhood of Teamsters,
Chauffeurs and Warehousemen and Helpers of America (Re-
spondent Union) violated Section 8(b)(1)(A) and (2) of the
Act. Moreover at the hearing the General Counsel submitted
several amendments to the complaint which were received.
Respondents filed answers generally denying the commission
of unfair labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. All parties sub-
mitted briefs which have been carefully considered.
On the entire record in the case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent Vanguard Tours, a New York corporation,
maintains its principal office and place of business in
Ossining, New York, and a facility in Yorktown, New York.1
In addition, Respondent Bedford Bus Co., Inc., a wholly
owned subsidiary of Vanguard Tours, also has an office and
place of business in Ossining, New York. Both Vanguard
Tours and Bedford Bus have been engaged in providing
school and charter bus transportation and related services.
Annually Respondent Company in the course and conduct of
its operations, derived gross revenues in excess of $250,000,
of which it received revenues in excess of $50,000 for serv-
ices performed in States other than the State of New York.
Moreover, Respondent Company purchased and received
goods valued at more than $50,000 annually from points out-
side the State of New York. The complaint alleges, Respond-
ent Company admits, and I find that it is an employer en-
gaged in comnerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Vanguard Tours had six terminals at the time of the hear-
ing from which it serviced a number of school districts. Bed-
ford Bus, a wholly owned subsidiary of Vanguard Tours,
maintained one terminal including a service and parking
yard. David Danzeisen, named in the complaint as an indi-
vidual Respondent, is the sole stockholder of Vanguard
Tours, and also the president of the corporation. John
Silvanie, the general manager of Vanguard and Bedford, runs
the day-to-day operation of the companies. However, both
Danzeisen and Silvanie are involved in labor relations and
negotiations.
Respondent Company provides school and charter bus
services on the basis of contracts with school districts which
are obtained as a result of public bids. These agreements also
provide for charter, field, and athletic trips for the school dis-
tricts. In addition Respondent Company does some business
with customers other than school districts which result in
charter trips. During the period involved in this proceeding,
according to Silvanie, Respondent Company employed about
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
600 employees of whom approximately half were drivers and
the balance were mechanics, other classifications of garage
and maintenance employees, and clerical employees. The
Company owned or leased approximately 300 buses and 100
vans.
Pursuant to a series of collective-bargaining agreements,
the most recent being from 1978 through 1981, and 1981
through 1984, Respondent Union represented the Company’s
employees in a unit of ‘‘full and part-time drivers, mechan-
ics, helpers, inspectors, mechanic trainees, washers, fuelers
and parts chasers.’’ However it is undisputed that of the ap-
proximately 300 drivers, only 18 are full-time drivers and
members of the Union. None of the part-time drivers are
union members.
In addition, there appears to be great disparity as to wages
and benefits received by full-time vis-a-vis part-time drivers.
Thus in the 1978–1981 agreement, full-timers received $1.24
an hour more than part-timers, and full-time drivers obtained
numerous benefits such as pension, health and welfare insur-
ance, a number of paid holidays, and sick days as well as
vacation and severance pay, and others. The part-timers only
received six paid holidays and none of the other benefits.
The wage rate referred to above was for the regular work of
driving children in buses or vans to school. The rates were
different for charter work but the full-time drivers per-
forming that work received approximately $3 more than the
part-timer who may be doing the same charter work assign-
ment. The nature of the job was such that there would be
time intervals between taking children to school and picking
them up and the practice was for part-timers to punch in and
out for each assignment, while the full-time drivers would
punch the clock only at the beginning and end of a day. This
was so even though the full-timers, members of the Union,
would also be idle while waiting for their next assignment.
On occasion drivers, either part-timer or full-timer, would
perform errands or other work, not busdriving, and in those
situations the full-timers received higher rates of pay than the
part-timers.
The 1978–1981 collective-bargaining agreement defined
the full-time employee as follows:
A regular employee is one who works as a full-time
employee for a period of two (2) months. A full-time
employee should be defined as one whose normal trips
consist of seven (7) hours constantly during the normal
work day.
The 1981–1984 agreement amended this provision by first
changing the nomenclature to ‘‘regular bus driver’’ and ‘‘bus
driver,’’ and then defined a regular driver as an employee
who worked on routes pursuant to contracts with Boards of
Education for a minimum of 420 hours each eligible quarter.
Further a driver, to become or remain a regular driver, must
work those hours during each of two consecutive quarters.
What is clear is that as of the time of the hearing no driver
was classified as a full-timer or regular driver at Bedford
since Respondent Company purchased that subsidiary. More-
over, at Yorktown, Shop Steward Sprofera was the last to be-
come so classified and that occurred in 1974. The result was
that Bedford which had 16 full-timers at the time of its ac-
quisition had only 10 at the time of the hearing. It follows
that only the full-timers were union members, and indeed, no
part-timer had ever become a member of the Union.
All schoolbus runs and other job assignments such as
charter trips were assigned on the basis of bids by senior em-
ployees. A seniority list was maintained at each of the termi-
nals, headed up in each case by the full-time employees and
following in chronological order were the part-timers. It was,
therefore, possible for part-timers near the top of the list to
bid on runs which would eventually give them sufficient
hours of employment so as to qualify pursuant to the con-
tractual provisions. In some instances, part-timers succeeded
to full-time status by virtue of the departure of a full-time
driver from Respondent Company’s employ. However, as
noted in the case of the Bedford terminal, some full-time po-
sitions were never filled after an incumbent had left.
B. The Alleged Supervisory Status of Certain
lndividuals
At issue is the serious question of whether Joanne
Sprofera, Albert Cotto, Gerald Navin, and George Martin are
supervisors and agents of Respondent Company. Concededly
these four individuals are shop stewards and, accordingly,
agents of the Union, but the determination of various alleged
unfair labor practices will often hinge on whether they are
also supervisors and agents of Respondent Company. In ad-
dition, it is alleged that Martha Doddenhoff, an employee,
has acted as an agent of Respondent Company. Therefore,
prior to an examination of the alleged unfair labor practices,
the status of these individuals should be explored.
1. Joanne Sprofera
According to Sprofera she had been employed by Re-
spondent Company since May 1973 and has been an assistant
dispatcher and a reserve driver. She stated that she started as
a part-timer and became a full-time employee and a union
member based on her seniority. In this latter connection, she
also became shop steward at Yorktown in 1974, having been
voted in by the full-time employees. Although her title is not
specifically covered by the union agreement, she earns the
rate of pay as well as all other benefits of the full-time driv-
ers. In addition, it appears from the payroll records that
Sprofera works considerable overtime and therefore, fre-
quently receives more in pay than Joan Turner, the dis-
patcher and terminal manager who is an admitted supervisor.
Sprofera and Turner work different hours so that the office
is covered by one of them throughout the day. Thus, Turner
normally arrives at 5 a.m., opens the office, and works until
2 or 3 p.m. On the other hand, Sprofera starts her workday
at 6:30 a.m. and works until the office closes at 5 p.m. In
addition to normal dispatching duties, Sprofera on occasion
does safety inspection checks and for this purpose uses a
company car to follow buses, thereby checking the perform-
ance of the drivers. The car, incidentally, is used by her and
taken home at the end of her workday.
As dispatcher, Sprofera mans the radio in the office, re-
ceives calls from drivers, makes calls to them relaying in-
structions, and provides assistance to drivers when they call
in for it. Although the runs were selected by all the drivers,
including both full-time and part-time drivers on the basis of
seniority, it is frequently necessary for Sprofera to make
changes and adjustments. Many of the drivers testified at the
261VANGUARD TOURS
hearing that they received assignments from Sprofera other
than normal schoolbus runs. Thus, Sprofera made assign-
ments to part-time drivers to clean and wash buses, move
buses, start them up when needed, run errands such as pick-
ing up parts and soda, and other little necessities that had to
be performed. More important Sprofera was able to make as-
signments on midday runs and special activities which could
result in numerous additional hours to the employees who re-
ceived them. Sprofera also, on delegation from Turner,
signed payroll cards for overtime pay.
In addition, it appears that Sprofera on occasion rep-
rimanded employees. Lauren Dickerson, a part-time driver
testified credibly, and without contradiction, that in the
spring of 1980 she missed 3 days of work and had not called
in. On her return, Sprofera took her aside and said to her,
‘‘If you do anything like that again, we’re going to have to
let you go.’’
Turner attempted to downplay the authority and duties of
Sprofera. She stated that all the assignments were of routine
character which she herself had prepared beforehand and,
more particularly, when she left at 3 p.m., there was nothing
really for Sprofera to do except to follow prearranged in-
structions on assignments. I cannot credit this. Despite the
fact that Turner had a radio in her car and could be reached
by telephone at home, it is not entirely clear, nor is it even
believable, that after a full day’s work she would be waiting
around to receive a call from Sprofera inquiring what to do
in some emergency situation. Moreover having observed
Sprofera at length during the hearing, I find that she is with-
out doubt a ‘‘take charge’’ person and a type that would un-
doubtedly resolve a problem herself. It would seem then for
at least a period of 2 hours and perhaps more, Sprofera was
in sole charge of the Yorktown operation. In view of the fact
that it is not uncommon for buses to have emergencies and
schedules may be required to be changed, Sprofera was the
one who performed these tasks and directed the drivers as
necessary. While there is no evidence that Sprofera actually
hired and fired employees, I nevertheless find, in view of the
above, that on occasion she did discipline employees or at
the very least was in a position where her remarks such as
noted above, would be considered by the employees as warn-
ings or discipline, and finally that she made assignments, in-
cluding extra assignments, and responsibly directed the work
of the drivers during regular, considerable periods of time.
Accordingly, I find that Sprofera is a supervisor within the
meaning of Section 2(11) of the Act. Jay Dee Transpor-
tation, 243 NLRB 638 (1979).
2. Al Cotto
Cotto, is both the shop steward and the foreman of the
maintenance employees at Yorktown, of whom there are
five. He receives $9.05 an hour which is a 45-cent premium
above the contract wage scale for mechanics. He works from
7 a.m. until 6 p.m., thereby garnering considerable overtime
pay, but his position is not covered by the contract. Cotto has
his own personal office, telephone, and maintains personnel
records which include attendance and discipline reports with
respect to the five mechanics working under him. This takes
up a good portion of his time so that he spends only half
of the day doing mechanical or maintenance work.
Repair work is forwarded to him by Turner, the head dis-
patcher, based on complaint sheets turned in to her by the
drivers. According to Cotto, he determines which repairs are
to be done first and selects who should do them. Thus, he
assigns the work to the five men each day on the basis of
their skill, availability, and the need for certain jobs to be
done. In addition, Cotto is authorized to write up people for
their poor work performance and as an example, he referred
to an employee named Michaelowski, whom he had noticed
three times for not obeying instructions. Incidentally, in con-
nection with this particular employee, a meeting regarding
his problems was conducted at Yorktown with Silvanie and
Navin who is the head steward. Cotto stated that he decided
it would be better for Navin to be present because in this sit-
uation he was not only the shop steward but also was his
boss.
Although Cotto has never fired any employees, he does
make a record of their performance and sends it to Silvanie.
In addition, while he does not grant wage increases, he can
put in a requisition for one and his recommendations are nor-
mally followed. He cited one instance in which an employee
was promoted at his request. According to his own testi-
mony, Cotto is the ‘‘boss’’ in that department, he does the
administration and assigns the work. On the basis on all the
above, I find that Cotto has and does make recommendations
with respect to the conditions of employment of the mainte-
nance employees at Yorktown which are followed and, more
important, he responsibly directs employees in the perform-
ance of the maintenance work at Yorktown. Accordingly, I
find Cotto to be a supervisor within the meaning of the Act.
3. Gerald Navin
Navin is employed at the Ossining terminal as an assistant
dispatcher, and, similar to Sprofera, as a safety inspector. In
addition, he is utilized as a reserve driver but averages only
two or three a.m. or p.m. runs per week. He is, of course,
classified as a full-time driver, a union member, and has
been the chief shop steward of the entire organization. Navin
drives a company car and is entitled to free gas. He usually
arrives at 5 a.m. and opens up the dispatching office and
thereafter assists Booth, the dispatcher, by performing his du-
ties and talking with the drivers over the radio. Navin also
performs the function of directing the traffic in the terminal
when it is blocked with buses and directs the drivers accord-
ingly. He also has the power to initial employee timecards,
particularly with respect to overtime. In view of the fact that
in his capacity as chief steward, he represents, theoretically,
all the drivers, he spends a good deal of his time driving
from one terminal to another in connection with problems
such as grievances which from time to time have come up.
At the Ossining terminal there are 85 to 90 drivers and 22
mechanics. Of these only four, including Navin, are classi-
fied as full-timers and they are the sole union members.
While the record is not as clear as in the situation of
Sprofero, it nevertheless appears that Navin performs work
similar to that of Sprofero, with the possible exception that
he is forced to spend more time than she on union business,
because he is the chief steward. On the other hand, it is clear
that he does this by using a company car which he takes
home with him, and is also fully paid for that time. In any
case, his work schedule and responsibilities at the dis-
patcher’s office and his authority over drivers in such situa-
tions as when the yard requires unjamming and others, would
result in a finding that he is a supervisor within the meaning
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act. On the other hand, if such conclusion is not read-
ily ascertainable, I would find, based on his duties already
discussed including his performance as safety inspector re-
porting on drivers, and on occasion signing a certificate for
New York State on behalf of the Company, that it has placed
Navin in a position from which employees could reasonably
conclude that he is acting on behalf of and representing man-
agement. Accordingly Respondent Company must bear re-
sponsibility for his conduct, Wm. Chalson Co., 252 NLRB
25 (1980).
4. George Martin
Martin had been employed 12 years ago as a busdriver
with Respondent Company’s predecessor at Bedford and
continued to be so employed at that terminal. Martin has
been the shop steward at Bedford for 6 years where there
were currently nine union members of whom two were me-
chanics. Martin stated, incidentally, that before 1976 a union
driver who left was replaced by one, usually by advancing
a part-timer by virtue of his or her seniority. This has not
occurred since Danzeisen obtained control of Bedford and as
a result, the number of full-timers and the union members
has declined. In connection with his stewardship, Martin stat-
ed that he has never processed a grievance on behalf of a
nonunion employee or part-timer, at least prior to the 1981
agreement. The terminal manager at Bedford is Goodrow
with whom Martin worked for the purpose of scheduling
people on their runs. In addition, it was Martin who would
decide among the full-timers as to who was to do the so-
called garbage work, such as cleaning buses, and selected
them as needed. Apparently the system at Bedford was that
Goodrow would do most of the assigning of the nonunion
drivers or part-timers, while Martin made the assignments, in
his discretion, among the union drivers trying to divide the
work so that one driver should not have more onerous tasks
than the other. Frequently Goodrow would call him and state
that he needed a driver for one purpose or another and Mar-
tin would make the selection.
While this question is not entirely free from doubt, it ap-
pears that Martin is sufficiently involved with the assignment
of employees for various jobs and, in so doing, exercises
independent judgment, that I find he is indeed a supervisor
within the meaning of the Act. However, his position is such
that employees would have the impression that in receiving
orders from Martin, the latter is acting as an agent or an offi-
cial of Respondent Company and accordingly I would, in any
case, find him to be an agent. This is particularly noteworthy
when one considers the large number of employees, both part
time and full time, who were attached to the Bedford ter-
minal.
5. Martha Doddenhoff
Doddenhoff had been employed by a predecessor of Re-
spondent Company as a busdriver. When it took over she
was offered and turned down the opportunity to become a
full-time driver, and did not become a member of the Union,
because she did not want to work the hours that were re-
quired for such status. At various times, particularly during
negotiations for contracts such as in 1978 and 1980,
Doddenhoff was elected by the part-time drivers as one of
their representatives to be present at negotiations. However
during the strike which occurred in January 1981, and which
will be discussed in greater detail later, Doddenhoff was not
informed by the other employees that the strike was going
to take place and consequently she came to work, crossed the
picket line, and was ready to drive her bus as usual.
General Counsel contends that Doddenhoff was, in actu-
ality, an agent of Respondent Company basing this conten-
tion on the fact that it appeared that she and her husband had
a social relationship with Danzeisen. Indeed at a meeting of
part-timers which Doddenhoff, attended in November 1980 at
the home of Diana Picucci, she offered to step down as a
representative because some people felt she should not con-
tinue in that capacity because of her relationship with
Danzeisen.
The only evidence submitted in support of General Coun-
sel’s claim is that Doddenhoff is an officer of a bank with
which Danzeisen does business, and at least on one occasion
the Doddenhoffs attended a social affair at which Danzeisen
was present. This evidence is clearly insufficient upon which
to base a finding that Doddenhoff was an agent of Respond-
ent Company and authorized, therefore, to act on its behalf.
I find, therefore, contrary to the General Counsel’s claim,
that Doddenhoff was merely one of the part-time employees,
not a member of the Union, and not an agent of Respondent
Company.
C. Alleged Violations of Sections 8(a)(1) and 8(b)(1)(A)
of the Act
As a result of the differences in working conditions, bene-
fits, and the inability of some of the part-timers to attain
membership in the Union which they equated, correctly or
incorrectly, with higher wages and other benefits, a group of
approximately 35 to 40 part-time drivers at the Yorktown ter-
minal held a meeting one evening in November at the home
of Rose Stueck. According to employee witnesses, those who
attended the meeting vented their feelings concerning their
inability to obtain raises and their apparent exclusion from
union membership. In addition, other working conditions
were talked about such as sick days, medical benefits, and
hospitalization. Finally the group decided to form their own
association and, to that end, those present elected Helen
Genco, Martha Doddenhoff, Diana Picucci, and Eileen
Donabie as their representatives. It was also determined that
they write a letter setting forth their demands to Danzeisen.
Thereafter, a letter was written in which these part-time em-
ployees demanded a raise of $1 an hour, equal pay with the
union drivers for charter work, as well as a request that
Danzeisen recognize their association. The letter was signed
by more than 60 part-timers and delivered to Danzeisen.
Receiving no response from Danzeisen, the part-timers at
Yorktown met during the latter part of November at the
home of Picucci. Once more the drivers discussed their eco-
nomic problems and talked about taking some action includ-
ing a slowdown, or even a strike, but no decision was made
concerning any such step. In any case, after about a week,
Danzeisen called a meeting of the part-timers at the dispatch-
er’s office in Yorktown. Besides the drivers and Danzeisen,
Silvanie, Navin, the chief steward, and Sprofera attended this
meeting. According to employee witnesses who testified at
the hearing, Danzeisen opened the meeting by acknowledg-
ing receipt of their letter at which point an employee, Lauren
Dickerson, asked Danzeisen to recognize the association they
263VANGUARD TOURS
2 It is noteworthy that Silvanie in testifying concerning Danzeisen’s state-
ments to the employees, emphasized and repeated that he told the part-timers
he could do nothing for them absent negotiations with the Union, and then
Danzeisen concluded the meeting by granting the part-timers a snow day
which was eventually implemented, a classic case of bypassing the Union.
had just formed at Yorktown. He refused to recognize them
or talk to their elected representatives, stating that he was un-
able to do this, that it would be illegal for him to do so, and
that they were bound to the union contract despite the fact
that they may not be members of the Union.
Eileen Donabie, who had been elected as the representa-
tive of the van drivers, asked why that group had not re-
ceived a raise for a number of years. Danzeisen’s reply was
that they were lucky to have those jobs because he could get
taxicab drivers to run the vans for less money. Furthermore,
he stated that he would only negotiate raises with the Union.
He also said that he could possibly lose the contract coming
up with the school district and, if that happened, they would
probably wind up driving for less money. Moreover in the
event he was not the lowest bidder, they would all be out
of jobs. According to Rose Stueck when Danzeisen was
asked if they could join the Union he said they could not af-
ford it because it would cost them $300 more and they
would get nothing out of it; he would see to that. Finally the
meeting ended when the employees left since Danzeisen re-
fused to talk about or recognize any of their problems.
Danzeisen during the course of his testimony did not refer
to this meeting, but Silvanie, the general manager, testified
at some length regarding it. To a large degree, Silvanie con-
firmed the testimony of the employees who testified at the
hearing, including Genco, Rescigno, Papineau, and others
with respect to Danzeisen’s statements that they were bound
to the union contract and he could not negotiate with them
apart from the Union, but that he would be glad to discuss
these matters with the union representatives if they were
willing. But Silvanie also agrees to some extent that
Danzeisen did indeed speak of what would happen if some
of the part-timers’ requests were granted by him. Thus, he
said if he granted a raise to the Yorktown drivers, he would
have to do the same for all part-timers in the Company. This
led him to a discussion of the bidding for the school con-
tracts in the following year. According to Silvanie,
Danzeisen said if the part-timers would receive a raise in
pay, he would be forced to raise his bid sufficiently on the
Yorktown contract, which would come up first, to pay the
increased wages of part-timers, and therefore he could guar-
antee that he would not be the low bidder and result in loss
of the contract for this garage.
I credit the testimony of the employees, who testified as
indicated above, that Danzeisen, in effect told them they
would lose their jobs if they continue their demands for an
increase or even if they were able to obtain such increase;
and in addition, replied to Donabie’s query concerning the
freezing of wage rates of the van drivers that they could eas-
ily be replaced by taxicab drivers. In my credibility assess-
ment, I have considered the failure of Danzeisen to allude to
this meeting at all in his testimony, and the manner in which
Silvanie testified revealed that he was being very careful and
selective in what he said. Nevertheless, I find he testified
sufficiently to support many of the statements made by the
employees as to what occurred at this particular Yorktown
meeting. Accordingly, I conclude that during the course of
this meeting Danzeisen threatened employees with loss of
jobs should they continue their quest for increased wages and
better working conditions and thereby violated Section
8(a)(1) of the Act.2
According to Genco, Doddenhoff informed her and the
other part-time representatives that about 1 or 2 weeks later
Danzeisen wanted to meet with them in Ossining. Present at
this meeting were Genco, Doddenhoff, Rescigno, Donabie,
Danzeisen, Silvanie, Navin, and Sprofera. The so-called rep-
resentatives again asked Danzeisen for a raise and he replied
that he had put in a bid for the school district and was not
about to give them a raise; and when they asked for just any-
thing, he said no, not even a nickel. Donabie told him that
the part-timers were talking about a strike to which
Danzeisen replied he was losing money and did not need the
Yorktown yard and would close it down. Moreover, he said
that they were right up front as representatives and could be
fired and that the others would go back to work. Again, by
threatening the part-timer representatives with discharge and
closure of the Yorktown terminal should they persist in seek-
ing a pay raise, Respondent Company further violated Sec-
tion 8(a)(1) of the Act. This is basically uncontroverted as
Danzeisen did not discuss this meeting at all in his testi-
mony, and although Silvanie conceded that such meeting had
been held, he did not furnish any details as to what tran-
spired.
A similar situation prevailed at the Bedford terminal where
Herman Lane, a veteran part-timer, credibly testified that as
early as 1978 he questioned George Martin, the shop stew-
ard, concerning the failure of the Company to pay part-timers
overtime pay for work in excess of 40 hours. Martin told
him that part-timers would never collect premium pay as a
matter of company policy. On another occasion he called
Silvanie by telephone and asked about holiday and overtime
pay and was told that there were different scales for part-
time employees.
Lane called Danzeisen in the fall of 1980 and informed
him that the part-timers were not satisfied with the pay dif-
ferential between them and the full-timers. As a result
Danzeisen came to Bedford and spoke to the part-timers in
a bus. He insisted that he was not allowed to negotiate with
them or make any agreements with them because the Union
was the sole bargaining agent. He repeated that he could not
do anything about this problem while the contract was en-
forced. In the meantime the part-timers at Bedford had elect-
ed a committee including Lane, Mary Ann Connor, Laverne
Bell, and several others. After the visit of Danzeisen this
committee elected elected Lane to be their representative and
spokesman. Shortly thereafter as a result of another call by
Lane to Danzeisen to tell him that the employees were not
satisfied, the latter returned to Bedford and met with about
30 part-timers on one of the buses. Lane’s testimony, which
was corroborated by Connor and Bell, was that Danzeisen
said he could not afford to pay all the benefits to the part-
timers. He said that if he did, he would then have to raise
his bid on the school contract and ultimately they would be
working for another company at a lot less pay. As an exam-
ple, Danzeisen described a situation in Connecticut where an-
other company took over, and the drivers there are now
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Where distribution of literature is involved the employer is permitted to
ban soliciting in all working areas of the plant, regardless of whether the solic-
itation takes place on working time. Stoddard-Quirk Mfg., 138 NLRB 615
(1962).
working for less money. The record does not show any de-
nial by Danzeisen as to the substance of his remarks.
The statements made by Danzeisen are similar to those
made by an employer in Mission Tire Co., 208 NLRB 84
(1974). There a supervisor made the statement that the com-
pany would not be competitive or able to remain in business
in the event the union ‘‘came in’’ and made the same de-
mands on it as the union had in contacts with other compa-
nies. The Board held that his was ‘‘merely an expression of
opinion reasonably based on economic facts which is pro-
tected by Section 8(c) of the Act.’’ Similarly, in B. F. Good-
rich Footwear Co., 201 NLRB 353 (1973), where the em-
ployer made a statement that the company would probably
have to close down if the union came in and demanded high-
er wages, the Board held that the statement was not a threat
but an opinion which was based on demonstrable facts as to
the economic facts which reasonably could result if he had
to pay out benefits he was unable to afford. Accordingly, I
shall dismiss the complaint allegation with regard to this
meeting at Bedford. See Daniel Construction Co., 264 NLRB
569 (1982).
Florence Parsons, a part-timer, testified that in November
1980, after the meetings with Danzeisen, she was called one
afternoon to the office by Joanne Sprofera. The latter told
her ‘‘to stay out of the labor problem, forget about it,’’ not
to get involved with them. Parsons testified credibly whereas
Sprofera merely denied generally that she had threatened any
employee, a statement I cannot credit based on her demeanor
and other conduct. Accordingly I find that Sprofera, a super-
visor, specifically called in Parsons and told her to stay of
the labor problems, and that such action has a tendency to
coerce employees and prevent them from engaging in union
or other protected concerted activities in violation of Section
8(a)(1) of the Act. By the same conduct Sprofera, as shop
steward and agent of the Union, caused Respondent Union
to restrain and coerce Parsons in the exercise of her Section
7 rights in violation of Section 8(b)(1)(A) of the Act.
Continuing with the conduct of Sprofera, Mary Ann
Rescigno, a part-time driver, testified to an incident which
occurred on January 6. She stated that during the afternoon
there had been a snow forecast, and Sprofera was calling the
busdrivers on the radio, but the part-timers were not answer-
ing because they knew the call was for drivers to assist in
the chaining of buses. This process called for a few of the
drivers to volunteer to bring the buses in to be chained, a
task performed by the mechanics. This work had always
been voluntary in the past and presumably the part-timer,
nonunion drivers were acting together in refusing to respond
to Sprofera’s call. Rescigno said that after finishing her run,
she went upstairs to the drivers’ room and Sprofera, obvi-
ously upset, shoved her and said, ‘‘Why didn’t you answer
the radio, you guinea bastard.’’ Rescigno told Sprofera she
was not staying there to chain the buses, and then punched
out and left. I credit Rescigno as against Sprofera’s general
statement that she did not assault any employees, for the rea-
sons already set forth. Accordingly I find that Respondent
Company further violated Section 8(a)(1) by Sprofera’s con-
duct in shoving Rescigno, because the latter had engaged
with the other part-timer, nonunion drivers in refusing to re-
spond to her call for volunteers to chain buses. By the same
token, Respondent Union shoulders responsibility for the ac-
tions of its steward and agent, Sprofera, and therefore vio-
lated Section 8(b)(1)(A) of the Act.
Continuing with alleged independent violations of Section
8(a)(1), it is undisputed that Respondent Company main-
tained the following rule which is published in its employee
handbook:
Destructive Criticism: Employees shall not make any
statements while on duty or on company property,
whether buses, terminals, garages or other property, to
passengers or prospective passengers, or in the presence
of passengers or prospective passengers, so that they
could hear same, concerning the matter of wages, hours
or working conditions, company policy or company
property, or the condition of buses, or concerning or-
ders given by superiors.
General Counsel contends that the rule is unlawful on its
face because it is drawn so broadly, that it encompasses a
ban on employee discussion on wages, hours, and working
conditions, on employees’ nonworking time. As General
Counsel points out in his brief, a ban which prohibits em-
ployees from discussing working conditions during their own
time, on company property, is presumptively unlawful. Our
Way, Inc., 268 NLRB 394 (1983). In order to overcome the
presumption of invalidity an employer can show that its rule
was communicated to employees or applied in such a way
as to make it clear that employees are free to solicit on their
own time. Essex International, 211 NLRB 749 (1974).
Special rules have been carved out for certain industries,
such as retail establishments, restaurants, hotels, and health
care facilities, where ‘‘special circumstances’’ exist. Times
Publishing Co., 605 F.2d 847 (5th Cir. 1979). Thus, the
Board has allowed prohibitions of solicitation in all selling
areas of retail stores by employees whether or not they are
on duty. J. C. Penney Co., 266 NLRB 1223 (1983); May
Department Store, 59 NLRB 976 (1944), modified 154 F.2d
533 (8th Cir. 1946), cert. denied 329 U.S. 725 (1946). Simi-
larly, the Board, with Supreme Court approval, has allowed
employers to restrict solicitation in certain ‘‘patient care
areas’’ of health care facilities. NLRB v. Baptist Hospital,
442 U.S. 773 (1979); Beth Israel Hospital v. NLRB, 437 U.S.
483 (1978). These exceptions to the Our Way and Essex pre-
sumptions, however, are limited to the industries for which
they are created. In the absence of a specific showing that
a particular rule is necessary to maintain order and discipline,
an employer in other industries must restrict its no-solicita-
tion rules to employees’ working time.3 Peyton Packing Co.,
49 NLRB 828 (1943).
In the instant case the rule prohibits conduct which would
encompass discussions of wages, hours, and working condi-
tions. The rule additionally applies to any statements made
while ‘‘on duty’’ or on ‘‘company premises.’’ Accordingly,
employees under this rule can be disciplined for comments
made on their own time, in violation of the principles laid
down in Essex, supra, and Our Way, supra. Since Respondent
has not adduced evidence that the rule was conveyed to em-
ployees or applied in such a way as to cure the defect, nor
265VANGUARD TOURS
has it shown that the Board rule was necessary for the main-
tenance of production or discipline, I conclude it violates
Section 8(a)(1) of the Act.
Marie Anne Conner and LaVerne Bell, two part-time driv-
ers at Bedford, testified, without contradiction, that on two
separate occasions they each asked Martin to show them a
copy of the collective-bargaining agreement and that they
were refused. Conner testified that she asked Martin to show
her the contract. He replied that he would answer any of her
questions, but he was under orders by Danzeisen not to show
any employees the contract. Bell stated that after the meeting
with Danzeisen in which he said they were represented by
the Union, she asked Martin who told her he was under or-
ders not to show the contract. Additionally, Martin told Bell
that the contract had been posted on the bulletin board in the
garage until he had been ordered to take it down. Martin did
not tell Bell who had given him these instructions.
General Counsel contends that Martin, in his capacity as
shop steward, refused to show copies of the collective-bar-
gaining agreement to bargaining unit employees in violation
of Section 8(b)(1)(A) of the Act. Indeed, the Board has held
that a union violates the Act when it refuses to show to em-
ployees the collective-bargaining agreement which deter-
mines their rights. Law Enforcement & Security Officers,
Local 40B (South Jersey Detective), 260 NLRB 419 (1982).
As Respondent Union does not dispute that Martin, its admit-
ted steward and agent, withheld the agreement from two bar-
gaining-unit employees, I conclude that it violated the Act as
alleged.
D. The Alleged Violations of Section 8(a)(2) of the Act
The complaint alleges that by permitting supervisors to
function as such and, at the same time, serve in the capacity
of shop stewards and agents of Respondent Union, Respond-
ent Company thereby violated Section 8(a)(2) of the Act. I
have already found Sprofera, Cotto, Navin, and Martin are
supervisors and/or agents within the meaning of the Act but
it is necessary also to describe how they acted and func-
tioned as shop stewards.
First it must be noted that these individuals were not the
routine type of stewards found in a small plant. They were
in fact cloaked by the Union with a good deal of authority
and responsibility. Thus it is uncontroverted that the stewards
attended contract negotiation sessions. Moreover, Respondent
Union’s secretary-treasurer, Arthur Revelese, testified that he
asked the stewards to prepare and forward to him demands
for bargaining and negotiations. He also stated that grievance
processing was handled basically by the stewards, and only
in rare situations when the grievance could not be resolved
did it come to his office.
The record is replete with testimony by part-timers who
attempted to join the Union and their only contact was with
the steward at the particular terminal. Thus Genco stated that
as far back as 1976, she asked Sprofera which Teamsters
Local represented the employees and was told it was none
of her business. She also asked Sprofera in 1977 about be-
coming a union member and was told she was not working
enough hours. Later that year when she was working more
hours, she again asked Sprofera, who told her that there were
no new members going into the Union. Herman Lane, a part-
timer at Bedford, testified that in 1976 he asked Martin, the
shop steward at the locality, why some of the nonunion driv-
ers had not been made full-timers and Martin replied that
there was a quota on the number of full-timers. Camille
Papineau, a part-timer, stated that in 1979 she had asked
Sprofera if she could join the Union because she needed
medical coverage, and was told she could not afford it. Other
part-time employees had similar experiences. I credit these
employees with respect to their attempts to become members
of the Union, despite half-hearted denials by Sprofera and
Revellese that they never refused membership to part-time
employee. Revellese, himself, testified that no part-timer had
ever been admitted to union membership.
Although the Board has held that it is not a per se viola-
tion for a supervisor to belong to a union or to participate
in union affairs, it has also found that, ‘‘employees have the
right to be represented in collective-bargaining negotiations
by individuals who have a single-minded loyalty to their in-
terests.’’ Nassau & Suffolk Contractors Assn., 118 NLRB
174, 187 (1957). Thus supervisory involvement in union af-
fairs becomes unlawful when it produces a demonstrable
conflict of interest. See Russ Togs, Inc., 253 NLRB 767
(1980), or where a conflict of interest is inherent in the dual
role. See Three Hundred South Grand Co., 257 NLRB 1397
(1981). Where such a conflict exists, the employer, in order
to avoid liability under Section 8(a)(1) and (2), is under a
duty to refuse to deal with the supervisor-union representa-
tive in his union role. Nassau & Suffolk Contractors, supra
at 187.
The Board has found a conflict of interests, where high-
level supervisors vote in internal union elections, see
Schwenk, Inc., 229 NLRB 640 (1970); where supervisors
participate in contract negotiations on behalf of the Union,
Nassau & Suffolk, supra at 182; where a supervisor served
as union steward who handled grievances and participated in
negotiations, Dock Warehousing & Bottling Centers, 169
NLRB 708, 714 (1968); and where the steward’s functions
encompassed a wide range of duties, ITT Arctic Services, 238
NLRB 116 (1978). On the other hand, the Board found no
violation where a temporary supervisor in the construction
industry also functioned as steward with limited responsi-
bility, Beech Electric Co., 174 NLRB 210 (1969); and found
no violation where a supervisor-steward with a limited re-
sponsibility of handling grievances relating to wages was
recognized by the employer, Allied Chemical Corp., 175
NLRB 974 (1969).
The instant case clearly falls within the parameters set
forth in the cases cited in which the Board found such con-
flict of interest which violated the Act. I have found
Sprofera, Cotto, Navin, and Martin to be supervisors within
the meaning of the Act, and it is conceded that they also
acted as union stewards. All were permanently employed,
were involved in all aspects of grievance handling as well as
communications between bargaining unit employees and the
Union, administered the collective-bargaining agreement, and
attended and participated in contract negotiations. Indeed, as
described above in connection with attempts by part-timers
to join the Union, these supervisor-stewards helped maintain
a quota of union full-time employees and thereby kept wage
scales lower for nonunion employees. In a similar case, it
was found that even a low-level supervisor-steward who en-
gaged in such conduct was at the very center of a conflict
of interest, and the employer thereby violated Section 8(a)(2)
of the Act by dealing with him as a steward. Narragansett
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I find no merit in Respondent Company’s contention, supported by evi-
dence, that its conduct was motivated by industry practice and the desire to
remain competitive, and that General Counsel failed to respond with evidence
of unlawful motive. In this connection, Respondent Company’s reliance on
NLRB v. Great Dane Trailers, 388 U.S. 26, 36 (1967), is misplaced, as the
Supreme Court held that ‘‘even if the Employer does come forward with
counterexplanations for his conduct in this situation, the Board may neverthe-
less draw an inference of improper motive from the conduct itself . . . .’’ I
have drawn such inference from the pattern of conduct of both Respondents
through their officials, supervisors, and shop stewards.
Restaurant Corp., 243 NLRB 124, 131 (1979). Accordingly,
I find that Respondent Company by dealing with the above-
named shop stewards who were also supervisors or agents
violated Section 8(a)(1) and (2) of the Act.
The alleged violation of Sections 8(a)(1), (2), and (3)
by denying benefits to employees who are nonmembers
of the Union
It has been shown that employees Genco, Maryann
Rescigno, Camille Papineau, and Parsons, at Yorktown, ap-
proached Sprofera at various times requesting union member-
ship. Although Sprofera denied refusing or discouraging
them, I do not credit her. Similarly Revellese, the union offi-
cial, denied that he refused membership to part-timers, but it
is clear that stewards shielded him from that chore. On the
other hand, George Martin, the steward at Bedford, replied
to a request from Herman Lane, in a more candid manner
by responding that a quota had been established. In any case,
the bottom line is that none of the part-timers in the time pe-
riod involved herein ever became members of the Union and
the number of union members remained static at Yorktown,
and actually declined at Bedford since departing members at
that terminal were not replaced.
Although the collective-bargaining agreement provided a
formula whereby part-timers could attain full-time status, its
application was rare in view of this system of maintaining
a small quota in that category. The contract in effect from
1978 through 1981 defined a full-time employee as one
whose daily trips consisted of 7 hours constantly during the
normal workday. Nevertheless payroll records reveal over 30
drivers, part-timer and nonunion, averaged more than 35
hours per week during periods between 1980 and 1981, and
some even averaged more than 40 hours a week during cer-
tain intervals. None of these drivers were reclassified so as
to attain full-time status. Since such status is subject to the
union-security clause of the contract, those employees would
have also become members of the Union.
Clearly the contract provision as well as the union-security
clause was not enforced either by Respondent Company or
the Union. Again in his testimony, Martin stated that not
only Lane had worked around 35 hours and sometimes more,
but also estimated about 10 others had exceeded the 35-hour
figure. Martin further testified that he never asked any of
these part-time drivers to become union members, nor did
Chief Steward Navin ever ask him to solicit new members,
nor was he asked to check the number of hours worked by
part-timers at Bedford.
Both Danzeisen and Silvanie testified that seniority was
the sole factor by which a driver would be converted from
part-time to full-time status, provided of course they had
completed the hourly requirements set forth in the contract.
While it is uncontroverted that seniority among the part-tim-
ers was the basis for which each of them could bid for runs
or assignments, it was of no avail to the part-timer who had
worked more than 35 hours in a week over a period of time,
if there were no ‘‘vacancy’’ in the full-time ranks. For exam-
ple, at Yorktown, it has been shown that a substantial num-
ber of drivers had fulfilled the hourly requirements as a re-
sult of their seniority among part-timers which enabled them
to select their runs, yet the full-time ranks were closed to
them. Union membership was denied to them because the
union-security clause applied to ‘‘all new regular full-time
employees . . . .’’ Moreover, the Union did nothing to en-
courage their membership on any basis, but rather, as has
been already stated, applicants were discouraged, to put it
mildly, by the steward-supervisors who were approached.
Finally at the risk of reiteration at this point, it must be
stressed that there was a wide disparity in wages, and other
benefits such as health, welfare, and pension plan, vacation
pay, sick leave, and other conditions as between the part-tim-
ers and the full-timers. Most of these benefits were not avail-
able at all to part-timers.
Based on the facts as set forth above, I find that Respond-
ents, Company and Union, have engaged in a pattern of con-
duct whereby they utilized the contractual provisions relating
to full-time and part-time employment as a cover for treating
employees disparately, and by virtue of the shop steward-su-
pervisory conflict, were enabled to prevent employees from
achieving union membership and full-timer status even if
part-timers fulfilled the requirements. Indeed, to the vast ma-
jority of part-timers, union membership became equivalent to
the attainment of full-timer classification with its concomi-
tant higher wages and other benefits under the contract.
While this view may be simplistic, it was the result of their
unsophisticated observation. In any event the system thwart-
ed their goals.
While employers and unions may lawfully maintain collec-
tive-bargaining agreements which provide for different wages
and benefits for various segments of the bargaining unit (see
S. Fishman, Inc., 245 NLRB 179 (1979)), they violate Sec-
tion 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of
the Act, respectively, where these distinctions are based on
union membership. Prestige Bedding, 212 NLRB 690 (1974).
The rationale for this holding was long ago articulated by the
Board in Rockaway News Supply Co., 94 NLRB 1056, 1059
(1951), when it stated that ‘‘limiting the payment of substan-
tial sums to employees who were Union members would cer-
tainly constitute a strong inducement to them to retain their
membership, and to nonmembers to seek Union member-
ship.’’ In that case the Board also noted that several employ-
ees had, in fact, attempted to join the union but had been
rebuffed. The Board found therein a violation of Section
8(a)(3) on the basis of unlawful discrimination and further,
that the employer’s maintenance of a contract that favored
union members unlawfully assisted the union in violation of
Section 8(a)(2) of the Act. Moreover, this rule applies even
in cases wherein the collective-bargaining agreement is law-
ful on its face, but is unlawfully applied to the benefit of
union members. Kaufman DeDell Printing, 251 NLRB 78
(1980). Finally this disparate wage treatment based solely on
union membership is inherently conducive to increased desire
to become union members, in violation of Section 8(a)(3)
and the existence of such discrimination is enough to con-
stitute the illegality. Radio Officers v. NLRB, 347 U.S. 17,
45–47 (1954); Lewis Mittman, Inc., 245 NLRB 450 (1975).4
267VANGUARD TOURS
Having found that the Respondent Company violated Sec-
tion 8(a)(1), (2), and (3) of the Act, I also find that Respond-
ent Union violated Section 8(b)(1)(A) and (2) of the Act by
its cooperation and participation in the disparate distribution
of wages and benefits based on union membership. This is
so because, by its conduct, the Union has caused the Com-
pany to discriminate in order to encourage union member-
ship, and also restrains employees in their decision to refrain
from union activity. The unfair labor practices are com-
pounded if, in addition to maintaining wage and benefit
schedules based on union membership, the Union has also
restricted membership by maintaining quotas.
In this connection Narragansett Restaurant Corp., supra,
presented a similar situation. In that case, the union main-
tained a quota of 35 members who were paid at higher wage
scales and on whose behalf the employer made health and
welfare contributions. Although respondent therein contended
that the nonunion employees were ‘‘casuals’’ and the union
employees were called ‘‘regulars,’’ it was found that such
distinction was ‘‘nebulous and in any event unsupported by
substantial evidence.’’ It is noted that in the instant case the
part-timers performed the same functions as the full-timers
and even though the agreement provided a formula for con-
version of part-timers to full-timers, it was not enforced as
Respondent Company’s records reveal that 20 employees
who had attained the hours of work required were not con-
verted from part-time to full-time status. In addition, employ-
ees who sought to become union members were rebuffed by
the stewards (supervisors) from doing so. Despite Respond-
ent Union’s contention to the contrary, employees are not re-
quired to seek out higher union officials after being sum-
marily rejected by the steward who was their only contact
and who was appointed by the responsible union official, and
endowed with a wide range of union duties and responsibil-
ities. See Narragansett Restaurant Corp., supra.
Finally there is clear evidence of the studious attempts by
both Respondents to unlawfully discriminate against the part-
time employees by virtue of two provisions in the 1978–
1981 contract. Thus, a proviso in the eligibility requirements
for participation in the pension fund states that an employee
‘‘shall have completed three months of service with the
Company from the date he becomes a member of the
Union.’’ While it may be lawful to provide different benefits
to part-time employees than to full-time employees, this dif-
ference is based purely on union membership. Such proviso
is invalid on its face, because an employee cannot obtain the
benefit of a pension plan until he becomes a member of the
union, a benefit therefore dependent on union membership.
Accordingly by providing this type of pension plan and
maintaining it, Respondents have violated Section 8(a)(1),
(2), and (3) and Section 8(b)(2) of the Act, respectively.
The contract also provided for a supplemental unemploy-
ment benefit fund to which Respondent Company agreed to
pay monthly 25 cents an hour for each hour worked ‘‘by
each employee covered by this agreement.’’ When Respond-
ent Company did not make payments to this fund, Respond-
ent Union instituted a lawsuit to enforce the agreement. This
litigation was settled on the basis of lump-sum payments
made by Respondent Company to only full-time, union mem-
ber employees. Nothing was done for the part-time employ-
ees, who were not members of the Union, despite the clear
language of the contract that this unemployment benefit fund
was for all employees covered by the collective-bargaining
agreement. As a result of such discriminatory, unlawful con-
duct, both Respondents violated Section 8(a)(1), (2), and (3)
and Section 8(b)(1)(A) and (2) of the Act, respectively.
E. The Strike
1. Negotiations
Negotiations for a new collective-bargaining agreement
began in December 1980, despite the expiration date of the
current agreement in July 1981. Presumably Danzeisen called
for early bargaining as a result of his meetings with the
Yorktown and Bedford employees the previous month. In-
deed, he suggested that Doddenhoff and Lane from York-
town and Bedford, who were elected representatives of the
part-timers at those locations, attend the sessions. These two
in turn invited fellow representatives who had been elected
at the two locations. The representatives from Yorktown
were driven to the meetings by Sprofero in the safety car of
Respondent Company. At the second meeting Donabie, one
of the Yorktown representatives, was able to inform union
counsel that the part-timers were also trying to get a raise,
inasmuch as the previous meeting had been taken up with
discussions of benefits pertaining only to full-timer union
members. Union counsel then arranged to talk to the part-
timer representatives separately. Genco stated she then in-
formed him that there were a considerable number of drivers
at Yorktown who were not in the Union and that she, as well
as others, had been working more than 36 hours a week, ac-
tually 38 to 40. The union attorney said he was not aware
this was going on, and asked whether they would be willing
to pay union dues of 5 or 10 cents an hour if he were to
obtain a separate agreement for them with a raise of perhaps
75 cents. Genco replied that she thought they would but
would ask the other drivers. She emphasized that they need-
ed a raise, or something. At the resumption of negotiations,
counsel suggested to Danzeisen a separate contract and a
raise for part-timers. The latter said that he had to be kid-
ding, he would give them nothing, nor would he even discuss
the nonunion, part-timers at the meeting. However union
counsel persisted and Danzeisen left with Silvanie for a few
minutes, then returned and offered a 10-cent raise for the
part-timers, effective in April 1981. The Yorktown represent-
atives presented this proposal at a meeting of the part-timers
and the result was a vote against Danzeisen’s offer.
There ensued a lull in the events because of the 2-week
Christmas vacation. However on January 6, 1981, 1 day after
the drivers returned to work, there was the incident, as dis-
cussed above, of the drivers refusal to volunteer to chain
buses. The following day, schools were closed because of a
snowfall. The drivers then returned on Wednesday, January
7, and noticed that buses were chained on their arrival. Ac-
cording to Rescigno and Genco, there was no longer any
snow and buses, therefore, were not able to leave the yard,
since chained buses could only be driven when snow was on
the ground. Sprofera ordered the drivers to unchain the buses
in the yard, which is covered with grease and oil. Although
they performed this task, the drivers (part-timers) were very
upset. That evening a number of them met at Rosemarie
Steuck’s house and discussed striking on Friday, January 9.
After talking about subjects such as the disparity in pay scale
between union and nonunion employees, their belief that
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent Company would still have violated Sec. 8(a)(1) even if
Sprofera were found not to be a supervisor as it is clear that she engaged in
this type of surveillance on orders from her superiors.
Sprofera was acting strictly as a supervisor and not really
doing anything for them as shop steward, and the recent inci-
dent with the bus chains, it was decided to make up some
strike signs for the next day.
2. The strike and ensuing alleged unfair labor practices
The following day, January 9, the part-timers at Yorktown
commenced picketing. Genco estimated that by approxi-
mately 7:50 a.m. there were 44 to 50 drivers on the picket
line. Of course not all of the part-timers joined, as for exam-
ple Doddenhoff reported and asked what it was all about and
then walked into the office, as did Donabie; and other em-
ployees merely went home. Mechanics went into work and
the full-time drivers, all union members, also reported to
work. However the buses did not run that day, and the strike
was effective enough to cause Respondent Company to halt
operations at Yorktown.
Prior to a discussion of the events that occurred while the
employees were on the picket lines and the alleged unfair
labor practices during that activity, it may be helpful to de-
termine the nature of the strike and the status of the strikers.
The complaint alleges that the strike and picketing was
caused and prolonged by reason of the unfair labor practices
of Respondent Company. On the other hand, Respondent
Company asserts that the strike was unprotected as being in
violation of the no-strike provision contained in the collec-
tive-bargaining agreement. The agreement provided that
‘‘there shall be no strike or lockout or any job action of any
kind taken by any employee, under the provisions of this
agreement without the express prior written consent of the
secretary-treasurer and business manager of the Union. Em-
ployees who engage in unauthorized strike activity or unau-
thorized job action shall be subject to immediate discharge,
without recourse.’’ The Supreme Court has long held that a
waiver of this type does not include strikes against unfair
labor practices which interfered with employees’ free choice
of a bargaining representative. Mastro Plastics Corp. v.
NLRB, 350 U.S. 270 (1956). Of course the unfair labor prac-
tices must be serious and ‘‘destructive of the foundation on
which collective-bargaining must rest.’’
In the instant case, I have found that Respondents Com-
pany and Union had engaged in what must be characterized
as ‘‘serious’’ unfair labor practices by virtue of their main-
taining, under the guise of unit classifications, a system
which not only successfully prevented part-time employees
from obtaining full-time status even under the conditions set
forth in the contract, but also prevented them from becoming
members of the Union and receiving the additional benefits
which flowed from such membership and full-time status.
This system, enforced by supervisors who are also shop
stewards, permeated the entire employee-employer union re-
lationships and has ‘‘thereby destroyed the foundation of sta-
ble collective-bargaining,’’ so that ‘‘an ordinary no-strike
clause does not constitute a legitimate and substantial busi-
ness reason that justifies the discharge of employees who
strike in response to serious unfair labor practices.’’ Servair,
Inc., 265 NLRB 181(1982).
In the instant case, the no-strike clause was not coupled
with contractual provisions for grievance and arbitration ma-
chinery, an issue dealt with by the Court in Mastro Plastics,
as well as the Board in Servair, supra. However even if the
contract provided for arbitration, Respondents could not
plead the availability of such procedures as a defense to the
contention that the employees were engaged in an unfair
labor strike. The nature of the violations of Sections 8(a)(2)
and 8(b)(1)(A) and (2) of the Act found herein, would pre-
clude deferral to any arbitration in view of the clear conflict
of interest between the employees and the Union which
would represent them in an arbitration proceeding. Aristo
Foods, 198 NLRB 543 (1972).
Accordingly, I find in the circumstances described above
that the strike engaged in by the employees of Respondent
Company was an unfair labor practice strike. In reaching this
conclusion, in addition to the reasons already set forth, I
have also considered that the testimony of employees who
were engaged in such strike may indicate that their reasons
for striking were basically economic such as the desire to ob-
tain higher wages and other benefits not available to them as
part-timers. However the Board, while considering the testi-
mony and characterizations by employees of their reasons for
striking, has not always found them literally to be disposi-
tive. See Brooks, Inc., 228 NLRB 1365, 1367 (1977). In that
case the Board indicated it was not necessary for employees,
in voting to strike, to do so consciously and specifically in
response to certain unfair labor practices. It emphasized that
the important thing is what caused the strike in whole or in
part and not the employees’ conscious reasons for going on
strike. Thus in this case, the overhanging atmosphere of the
part-time employees’ failure to attain economic gains, caused
by the Respondents’ unfair labor practices, was the under-
lying cause of the strike herein, which in turn were vocalized
by the part-timers’ demands for increased wages and other
benefits and conditions of employment.
Returning now to events that occurred on January 9 and
thereafter during the strike and picketing, the complaint al-
leges that Respondent Company engaged in unlawful surveil-
lance of the employees’ activities while picketing. The testi-
mony is uncontroverted that during the morning of January
9, Joanne Sprofera came out of the Yorktown terminal and
wrote on a pad the names of the employees who were pick-
eting. In addition Sprofera entered a van and wrote down the
names of the occupants who included Parsons, Papineau,
Dickerson, and Rescigno. Sprofera conceded engaging in this
activity but at one point in her testimony explained that she
was writing down names so as to determine which drivers
would be available to operate the buses. At another point,
Sprofera conceded that she did not know the reason for writ-
ing down the names of the strikers. In any case, I do not
lend credence to her explanation since her alleged purpose
would be more simply attained if she noted the names of em-
ployees who passed through the picket line and determined
their availability for work. The Board has found that the tak-
ing of notes by a company representative for which no prop-
er explanation is offered, constitutes illegal surveillance, in
violation of Section 8(a)(1) of the Act and I so find with re-
spect to this incident. Crown Cork & Seal Co., 254 NLRB
1340 (1981). Such conduct creates in the minds of employ-
ees the impression that their names were being noted in a
manner useful for later discrimination. J. P. Stevens & Co.,
247 NLRB 420, 434 (1980).5
269VANGUARD TOURS
6 Among this latter group Silvanie named Genco, Rescigno, Papineau,
Steuck, Parsons, Dickerson, and Hughes.
By the conduct of Sprofera, its shop steward, in keeping
these activities of the employees under surveillance, Re-
spondent Union violated Section 8(b)(1)(A) of the Act. Sec-
retary-Treasurer Revellese testified that the Union had not
authorized the strike, and indicated that, in his opinion, Re-
spondent Company could discharge those and moreover, the
Union could not represent them. Indeed he stated that he did
not communicate with the Company as to the strike, and did
not demand that the employees be returned to work because
they were on a wildcat, and that they had done something
without authorization and there was no way he could rep-
resent them. In any case, since it is clear that the employees
involved regarded Sprofera as their steward, this conduct of
writing their names on a pad would certainly lead them to
believe that the Union would take some action against them
or at the very least, fail to represent them. Accordingly I find
that, through Sprofera’s conduct, Respondent Union violated
Section 8(b)(1)(A) of the Act.
While writing down the names of the striking employees,
Sprofera was asked by Genco what she was doing. Sprofera
replied, ‘‘[W]hat’s it to you, you’re fired.’’ She went on to
say they were all going to be fired before the day is over
and the employees were going to regret their actions. Later
when Sprofera was writing down the names of the 15 em-
ployees in the van, Rescigno also asked her what she was
doing and was told that she was taking her name down be-
cause she was fired. This is confirmed by Papineau who, in
addition, stated that Sprofera asked her to look out the win-
dow and name all the drivers who were picketing, which
Papineau refused to do. Florence Parsons also testified to
seeing Sprofera write names and heard an employee ask her
if this meant they were fired, and Sprofera conceded telling
them to go back to work because they could be fired. In ad-
dition she informed them that Revellese believed their strike
was illegal and they could be fired. I find, based on her own
admissions, Sprofera’s urging employees to return to work or
they could be fired constituted a threat of discharge if they
continued to engage in their picketing and strike activity, and
thereby Respondent Company violated Section 8(a)(1) of the
Act. Moreover in her role as shop steward, her reporting the
opinion of Revellese that they were engaged in an illegal
strike, also constitued a threat and thereby Respondent Union
violated Section 8(b)(1)(A) of the Act.
Another incident on the first day of picketing involved Al
Cotto, found to be a supervisor and shop steward in mainte-
nance. He testified that on that day, he spoke to Tom
Girling, a part-time employee, and advised him it was foolish
to go on strike. He further said he also spoke to Revellese
that day by telephone and was informed that if the strikers
did not withdraw, they would automatically be fired because
it was a wildcat strike which violated the contract. Cotto stat-
ed he repeated Revellese’s statement to Girling and Kriner,
another employee, word for word. Once more this constitutes
a threat to employees that they would ultimately be fired for
continuing to engage in their protected activity of striking
and picketing. By this conduct Respondent Company and
Union, respectively, violated Sections 8(a)(1) and 8(b)(1)(A)
of the Act.
During the afternoon of January 9, while the part-timers
were picketing at Yorktown, one of the part-time employees
who had crossed the picket line came out and informed the
pickets that Danzeisen wanted to see five of them. They
were told he did not want Genco but did ask to see
Rescigno, Prescott, Hughes, Parsons, and Pucucci. These five
went to the drivers’ room and met Danzeisen who was there
with Silvanie, Sprofera, Turner, Doddenhoff, Anderson, and
Navin.
Danzeisen insisted he was not giving them anything except
the 10-cent raise in April and they could stay out until the
cows come home. Danzeisen said that he was going to fire
six people but did not name anyone. Moreover, Danzeisen
said that everybody had quit. This is confirmed by the testi-
mony of Chief Steward Supervisor Navin to the effect that
Danzeisen told the part-time employees that those who went
on strike had quit their jobs. Indeed, Navin stated that this
was his own opinion as well.
The five strikers left the office, returned to the picket line,
and delivered Danzeisen’s message to the others. It being
late in the afternoon, the strikers left the picket line and
about nine of them including Genco, Rescigno, Pucucci, and
Papineau went to Rose Steuck’s house. Shortly thereafter,
they received a phone call from John Meyers who said that
Danzeisen wanted all the drivers to return to Vanguard to
hear a proposal, so they went back. Silvanie, as spokesman
for Danzeisen, stated that as far as they were concerned, the
strikers had all quit their jobs and that 18 of them could re-
turn to work but would lose their seniority which would be
restored the following September. In addition four of the
strikers, naming Pucucci, Genco, Papineau, and Rescigno,
would be suspended for 1 month, after which they could re-
turn, but without their seniority. When asked if that was the
proposal, Silvanie said that was it. The strikers then left. The
narration of these two meetings conducted by Respondent
Company is uncontroverted.
I find that by telling the strikers that they were considered
to have quit, Danzeisen’s conduct was tantamount to dis-
charging them. The Board has held that it is not necessary
for an employer to ‘‘use formal words of firing,’’ but ‘‘it is
sufficient if the words or actions of the employer would logi-
cally lead a prudent person to believe his tenure had been
terminated.’’ Rideway Trucking Co., 243 NLRB 1048 (1979).
I find, therefore, that Respondent violated Section 8(a)(1)
and (3) by discharging the strikers who had been engaged in
protected concerted activity.
Moreover by later offering the strikers reinstatement with
loss of seniority, Respondent Company further violated Sec-
tion 8(a)(3) inasmuch as discharged unfair labor strikers were
entitled to unconditional reinstatement to their former posi-
tions. In this connection it is noted by letter dated February
24, 1981, Respondent Company wrote to most of the strikers
that they were reinstated with full seniority. However
Silvanie testified that a number of strikers were not reinstated
and were indeed discharged because Respondent Company
considered them to be responsible for the strike action on
January 9 and other disruptions.6
Finally in connection with reinstatement of strikers, Re-
spondent Company required employees desirous of reinstate-
ment to sign a stipulation of discontinuance of certain litiga-
tion which had been instituted by Respondent Company. Al-
though that matter will be more fully discussed subsequently,
it will suffice at this point to note that such stipulation con-
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tained provisions binding the employee to refrain from ac-
tivities from which he had been temporarily restrained by
court order, that the employee will also adhere to the collec-
tive-bargaining agreement, and that the reinstatement would
take the form of rehire as a new employee effective January
13, 1981. Of course such conditional reinstatement of unfair
labor practice strikers constitutes a further violation of Sec-
tion 8(a)(1) and (3) of the Act. The letters dated February
24, 1981, sent to the affected employees released them from
the provisions of this stipulation. Nevertheless from January
13 to February 24 it was in effect.
3. Additional threats during the strike
Lauren Dickerson testified that on January 10, a Saturday,
she received a call from Yorktown Manager Turner who
asked whether she would be coming to work on Monday.
Dickerson replied that she was available but would not cross
a picket line. When Turner pressed her on this, Dickerson
said she could not say definitely whether she would work but
she would not cross a picket line. Turner then said that she
ought to think about her daughter and act responsibly, and
moreover, there would be no more room for her in the car-
pool she shared with Al Brown, a supervisor. Dickerson tes-
tified she then heard Doddenhoff’s voice on the line who
said that she had thought Dickerson was willing to work
within the system. The latter replied that they had gone a
long time without an answer from Danzeisen and repeated
that she would not cross the picket line. Needless to say,
Dickerson was back on the picket line on Monday. Mary
Kennedy, a part-time driver, testified that on January 10 she
also received a call from Doddenhoff who asked if she was
coming back on Monday and she replied that she would if
there were no pickets. Doddenhoff told her that if she did
not come back to work on Monday she could be fired, or
if she did come back after Monday, she would lose seniority.
By the conduct of Turner and Doddenhoff, I find that Re-
spondent Company further violated Section 8(a)(1) of the
Act by threatening discharge, loss of seniority, and in
Dickerson’s case, threatening loss of the benefit of her car-
pool, unless they abandon their strike. With regard to my
prior finding that Doddenhoff is neither a supervisor nor
agent of Respondent Company, I find, nevertheless, that the
telephone calls made on Saturday in conjunction with Turner,
were undoubtedly at the behest of management and, there-
fore, Respondent Company is responsible for Doddenhoff’s
remarks. The testimony of Dickerson and Kennedy is
uncontroverted as both Turner and Doddenhoff testified at
the hearing but did not allude to the matters of these phone
calls.
F. Respondent Company’s Lawsuit
1. Facts
It is alleged that Respondent Company violated the Act by
instituting and prosecuting a lawsuit in a state court against
24 of the part-time, nonunion drivers. The facts as to this as-
pect are essentially uncontroverted. On January 9, 1981, the
first day of the strike and picketing, Respondent Company
instituted a suit in the Supreme Court, State of New York
and obtained a temporary restraining order against the named
defendants. Basically the order enjoined the strikers from
picketing, displaying signs and other materials relating to a
labor dispute, molesting or interfering with employees or rep-
resentatives of Respondent Company, damaging its property,
or interfering with operation of the schoolbuses. In addition,
a summons and complaint was served which, among other
items of relief, requested damages of $500,000 from each of
the employees names as defendants in the action. Some of
the employees were served with the restraining orders on Fri-
day night, January 9, and others were served on the picket
line on January 12. Service was made at that time by an em-
ployee of Respondent Company accompanied by Sprofera
who identified the pickets for him. Except for the strike lead-
ers, Genco, Rescigno, et al., named above, the employees
who were served also received a letter which set forth that
they were being sued for $500,000, but offered them rein-
statement to their jobs, indicating that they would then be
treated as newly hired employees. The so-called ringleaders
also received a letter but it did not contain the reinstatement
offer. At this point, January 12, picketing ceased. Neverthe-
less, Respondent Company served Genco, Papineau,
Dickerson, Hughes, Rescigno, Steuck, and Puccucci with a
show-cause order to hold them in contempt of the original
restraining order.
On January 15, the seven employees appeared in court and
were warned by the judge that they were being sued for
$500,000, and he advised that they get an attorney. He then
continued the restraining order and adjourned the case until
January 23. At the same time Respondent Company with-
drew the complaint against the other named employees. The
employees reappeared in court on January 23, this time rep-
resented by counsel, but Respondent Company through its at-
torney moved for dismissal of the case which was granted.
In the meantime, the employees who were returning to
work were directed to sign a stipulation of discontinuance,
referred to above, providing among other things, that they
would be rehired on probation with loss of seniority until
September 1981. This stipulation was countermanded by a
letter to these employees dated February 24, in which Re-
spondent Company released them from the provisions of the
stipulation and restored their seniority.
2. Analysis
The Board has long held that ‘‘the making of a threat by
an employer to resort to the civil courts as a tactic calculated
to restrain employees in exercise of their Section 7 rights’’
violates Section 8(a)(1) of the Act. Clyde Taylor Co., 127
NLRB 103, 108 (1960). In that case the Board found that an
employer violated Section 8(a)(1) by threatening an em-
ployee, who filed a charge with the Board, with a libel suit.
However, while establishing a prohibition against threatening
employees with lawsuits in order to restrain their protected
activity, the Board also held in Clyde Taylor that seeking an
injunction in civil court was not a violation, acknowledging
the right of all persons to litigate their claims in civil court.
This latter policy was somewhat relaxed by the Board in
Power Systems, 239 NLRB 445 (1978), enf. denied 601 F.2d
936 (7th Cir. 1979). In that case the Board held that a law-
suit which has as its purpose ‘‘the unlawful objective of pe-
nalizing an employee for filing a charge with the Board and
depriving him of and discouraging employees from seeking
access to the Board’s process,’’ violated Section 8(a)(1) and
(4) of the Act. Thus the key to determine whether Respond-
ent violated the Act by bringing a civil suit was its motiva-
271VANGUARD TOURS
tion. See, e.g., United Credit Bureau of America, 242 NLRB
921 (1979), enfd. 643 F.2d 1017 (4th Cir. 1981).
More recently, however, the Supreme Court found in Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731, 747 (1983),
that the prosecution of a civil lawsuit violates the Act where
both of the following conditions are met: (a) the lawsuit is
used by the employer for retaliatory or coercive purposes and
(b) where the lawsuit is without merit.
The latter requirement is, of course, most easily met where
the lawsuit in the state court has been concluded and the
plaintiff therein lost. In the instant case, however, the lawsuit
was withdrawn by Respondent Company. The Supreme
Court in Bill Johnson (461 U.S. at 747) appears to have dealt
with this matter as it stated:
If judgment goes against the employer in the state court
. . . or if his suit is withdrawn or is otherwise shown
to be without merit, the employer has had its day in
court, the interest of the state in providing a forum for
its citizens has been vindicated, and the Board may
then proceed to ad judicate the § 8(a)(1) and 8(a)(4)
unfair labor practice case.
The language of the Supreme Court appears to make it clear
that a withdrawal of the lawsuit is for this purpose equivalent
to a showing of lack of merit.
There remains then the need for General Counsel to show
an improper motive on the part of Respondent Company in
instituting its civil lawsuit. In demonstrating that Respondent
Company’s motivation in instituting the lawsuit was unlaw-
ful, there may be some doubt as to this conclusion if the
lawsuit was confined to a suit for an injunction, as Respond-
ent Company arguably could seek such relief on the theory
that the picketing and strike activity constituted a violation
of the no-strike clause contained in the collective-bargaining
agreement. See Boys Markets v. Retail Clerks, 398 U.S. 235
(1970). However, that would not be applicable to a suit for
damages and other remedies against the employees which ac-
companied the request for the injunction. A suit for
$500,000, in the circumstances, was clearly designated to
frighten the employees and thereby discourage them from en-
gaging in what has been found to be protected concerted ac-
tivity protesting Respondent Company’s commission of un-
fair labor practices. Serving papers on the employees at the
picket line, or at their homes, certainly had the desired effect
inasmuch as the picketing immediately ceased and the strike
was over. Respondent Company went even further by serving
certain of the strikers with contempt papers after all activity
had been discontinued. I find that Respondent Company was
clearly motivated by its desire to interfere with the employ-
ees’ rights to engage in activities as a protest to unfair labor
practices and even for economic reasons. It is evident from
the record that Respondent Company was seeking to main-
tain its practices of preventing the part-timers from improv-
ing their conditions and, moreover, keeping its complement
of union employees at a minimum. This would be just a per-
petuation of the unfair labor practices already found herein.
Accordingly, I find that by instituting the lawsuit in the state
court, Respondent Company violated Section 8(a)(1) and (3)
of the Act.
Moreover, the stipulation of discontinuance which employ-
ees were forced to sign in order to be even conditionally re-
instated to employment, contained a provision that the law-
suit will be reinstituted in the event that they engaged in
similar activity. By forcing employees to give up their rights
to engage in protected activity under the Act on penalty of
being subject to a civil suit, Respondent further violated Sec-
tion 8(a)(1) of the Act.
The complaint further alleges that Respondent Union, act-
ing through Sprofera, in violation of Section 8(b)(1)(A) and
(2) of the Act, caused to be served on employees copies of
an order to show cause and summons and complaint, in con-
nection with the lawsuits commenced by the Company, and
thereby attempted to cause and did cause the employees to
cease from engaging in their strike and picketing. I find these
allegations to be without merit.
The only evidence supporting the allegations is that
Sprofera accompanied a process server in the picketed area
and pointed out to him the individuals to whom he was re-
quired to deliver the summonses. Although I have found that
the lawsuits instituted by Respondent Company were unlaw-
ful, and that Sprofera is a union agent, it does not necessarily
follow that the Union through Sprofera’s conduct violated
the Act by aiding the Company in the prosecution of these
suits. On the contrary, the record indicates that the legal ac-
tions against the strikers were exclusively the Company’s
ventures, in which the Union took no part. The impact of
Sprofera’s aid to the process server, which is the only con-
nection between the Union and the lawsuits, in the context
of the total coercive effect of the legal actions, was so brief
and slight as to be de minimus. Moreover, the absence of
any evidence of union participation in the lawsuits compels
the conclusion that Sprofera’s conduct in this incident was
taken solely in her capacity as a supervisor and agent of Re-
spondent Company.
G. The New Contract and Gloria Gerosa
At the hearing, the General Counsel amended the com-
plaint to allege that Respondent Company violated Section
8(a)(1) and (3) of the Act by reducing the hours of part-timer
Gloria Gerosa because of her nonmembership in the Union.
In early 1981 Respondents Union and Company agreed on
a new collective-bargaining agreement to be effective July
11, 1981, to July 10, 1984. Insofar as the part-timers were
concerned, the new agreement provided for an immediate in-
crease of 10 cents an hour in April 1981 (prior to the actual
commencement of the agreement), and another wage increase
in September 1981. Among other things, the 1981 agreement
changed the classification description from full-timer and
part-timer as appeared in the prior agreement, to regular driv-
er and nonregular driver. Another important change provided
that a regular driver is one who operates schoolbuses on reg-
ularly assigned school routes for a minimum of 420 hours
each quarter. The prior contract simply provided that a full-
timer is one who is employed 7 hours a day on a regular
basis. Moreover, this definition would seem to exclude time
spent on charter runs, although the part-timers had been in-
formed by Union Official Revellese that charter runs and
similar work would be included in the computation of the
420 hours. It may also be noted that the Union continued to
negotiate certain terms after the execution of the agreement
so that in January 1982, the Respondents signed an agree-
ment which provided that all full-time drivers under the prior
agreement would be considered regular drivers under the cur-
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In this connection it is further noted that the General Counsel has made
a prima facie case that Respondent Company reduced Gerosa’s hours of work
because of her nonmembership in the Union, and in furtherance of its unlawful
practice, in conjunction with the Union to keep down the number of regular
drivers and union drivers. Although Respondent Company contends its action
was based on economic grounds, it has failed in its rebuttal based on my eval-
uation of the testimony of Manager Silvanie and the uncontradicted statements
of Gerosa as to her conversations with Goodrow. Thus this finding of violation
of Sec. 8(a)(3) is in accordance with standards set forth in Wright Line, 251
NLRB 1083 (1980).
rent agreement and accordingly were ‘‘grandfathered’’ in for
that purpose.
During the hearing Respondents took the position that the
execution of the new agreement effective in mid-1981, with
the changes as indicated above, had the result of curing any
defects or discrimination which may have existed under the
prior agreement. Of course that contention is not acceptable,
as no remedy has provided for the unfair labor practices
which existed under the old agreement.
It appears that subsequent to the effective date of the new
agreement, the number of employees now considered ‘‘reg-
ular drivers,’’ and coincidentally members of the Union, re-
mained the same. Moreover, the record reveals that a number
of drivers, now classified as ‘‘non-regular,’’ were driving the
required 420 hours per quarter, and were not reclassified nor
accepted to union membership. Illustrative of this result was
the situation of Gloria Gerosa, an employee at the Bedford
terminal since 1976. Gerosa testified that for at least 3 years,
she had worked 41-1/2 hours a week without attaining full-
timer classification, and of course, she was not a union mem-
ber. She stated that during the week of April 5, 1982, one
of her schools was to be closed and, as a result, she would
lose over an hour a day, each day of the week. She asked
the dispatcher at Bedford, Goodrow, for time to fill in and
he refused. Gerosa said that she then went to see Sutton, the
safety director, who told her to write down her runs and
hours, and where they were located, and he would pass it on
to the office in Ossining. According to Gerosa, who testified
credibly, Sutton said that there were people trying to get into
the Union, and if she had 420 hours, she could get into the
Union. He also said there were only a few people who would
get into the Union, and doubted if any of the van drivers
would get in. He further said that the people who knew
about the 420-hour requirement were trying to get more
hours than normal and he wanted to put a stop to it. On
April 8, she gave Sutton the slip indicating her hours and
routes as requested. Subsequent to the Easter vacation, she
was informed on her return on April 19, by Goodrow, that
as of the following day, her run to Sunny Hill would be
given to Bob Ayres, a full-time employee. This run involved
taking an autistic child from Bedford to a special school in
Connecticut. She was instructed to meet that day with Ayre
and show him the location of the school and where the child
was picked up. Actually she had had that particular run for
2 years prior to this date.
Silvanie testified with regard to the Gerosa incident that
she had been running an excessive number of hours and her
run to Sunny Hill could have been more economically per-
formed by a regular full-time driver. He indicated that she
was only one of a number of drivers who had time deducted
from what he considered to be excessive runs. However, he
could not name anyone else, while conceding that Gerosa’s
was the largest change that was made. He stated he was un-
aware that Gerosa had been running that route for over 2
years. I find in the circumstances, that Gerosa’s run was cut
so as to prevent her from attaining the new hourly standard
provided in the contract and thereby denying her regular
driver status, with its consequent wage increases and other
benefits, because of her nonmembership, and her desire to at-
tain membership in the Union. Noted also is the unrefuted
testimony of Gerosa that Safety Director Sutton told her Re-
spondent Company intended to reduce the hours of employ-
ees who were close to making the necessary hours and who
were also thinking membership in the Union. Accordingly, I
find that by reducing the hours of Gerosa, and failure to re-
store them, Respondent Company violated Section 8(a)(1)
and (3) of the Act.7
H. The Arbitration
The 1981–1984 contract contained for the first time a
grievance-and-arbitration procedure. In 1982 Respondent
Union filed a grievance on behalf of 10 employees claiming
that they had met the new 420 hours per quarter standard set
by the contract for eligibility to be a ‘‘regular’’ driver. This
dispute went to arbitration and in the fall of 1982, an arbi-
trator ruled that of the 10 employees, 2 of them should be
converted from the nonregular to the regular status with all
the benefits pertaining thereto.
As a result of this award, which was issued after the close
of hearing, and on motion of counsel, received into this
record, Respondent Company contends that this award settles
the issues involved in the allegations here, as it meets the
standards set forth in Spielberg Mfg. Co., 112 NLRB 1080
(1955). Such a contention borders on frivolity. In view of the
violations of Section 8(b)(1)(A), by Respondent Union based
on its failure properly to represent unit employees, particu-
larly the part-timers who are not members, Respondent
Union had an apparent conflict of interests in representing
these grievants. Aristo Foods, 198 NLRB 543 (1972). More-
over the arbitration proceeding and award does not comport
with the Board’s recent standards for deferral to arbitration
awards. Thus, the issue as to whether ten employees in 1982
had met the contractual standards for promotion to regular
driver is not at all parallel to the overall issue of the instant
case involving the question as to whether the Respondents
were aligned in keeping part-time employees from attaining
both full-time status and union membership. Finally it does
not appear from the arbitrator’s award that he considered or
was even necessary to resolving the unfair labor practices.
Accordingly I find that this case should not be deferred to
the arbitration award as contended by Respondent Company.
See Olin Corp., 268 NLRB 573 (1984).
I. Individual Liability of Danzeisen
The complaint names David Danzeisen as an individual
Respondent, and the General Counsel contends that he, being
the sole stockholder of Respondent Company and having
been involved personally in unfair labor practices, should be
held individually liable for the violations of the Act found
here. It is conceded that Danzeisen is the sole stockholder of
the corporations involved, and I have found that he was ex-
tensively involved in the unfair labor practices alleged in the
complaint and, indeed, I have found that his conduct violated
the Act. However, in relying on these two guidelines, the
273VANGUARD TOURS
8 See also Contris Packing Co., 268 NLRB 193 (1983); Chef Nathan Sez
Eat Here, Inc., 201 NLRB 343 (1973). 9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
General Counsel has omitted a third element which is also
necessary for the conclusion sought.
In Riley Aeronautics Corp., 178 NLRB 495, 500 (1969),
the Board stated as follows:
‘‘[E]asily the most distinctive attribute of the corpora-
tion is its experience in the eye of the law as a legal
entity and artificial personality distinct and separate
from the stockholders and officers who compose it.’’
Wormser, Disregard of the Corporation Fiction and Al-
lied Corporation Problems, (Baker, Voorhis and Com-
pany, 1927), p. 11. ‘‘The insulation of a stockholder
from the debts and obligations of his corporation is the
norm, not the exception.’’ NLRB v. Deena Artware,
Inc., 361 U.S. 398, 402–403. Nevertheless, the cor-
porate veil will be pierced whenever it is employed to
perpetrate fraud, evade existing obligations, or cir-
cumvent a statute. Isaac Schieber, et al., individually,
and Allen Hat Co., 26 NLRB 937, 964 enfd. 116 F.2d
(C.A. 8). Thus, in the field of labor relations, the courts
and Board have looked beyond organizational form
where an individual or corporate employer was no more
than an alter ego or a ‘‘disguised continuance of the
old employer,’’ Southport Petroleum Co. v. NLRB, 315
U.S. 100, 106); or was in active concert or participation
in a scheme or plan or evasion (NLRB v. Hopwood Re-
tinning Co., 104 F.2d 302, 304 (C.A. 2)); or siphoned
off assets for the purposes of rendering insolvent and
frustrating a monetary obligation such as backpay
(NLRB v. Deena Artware, Inc., supra, 361 U.S. 398);
or so integrated or intermingled his assets or affairs that
‘‘no distinct corporate lines are maintained.’’ (Id. at
403).
There is no evidence in this record indicating that the cor-
porate veil should be pierced because of fraud, evasion of
obligations, or circumvention of the statute as required by the
holding in Riley. Nor is there any indication that assets of
Respondent Company have been ‘‘integrated or inter-
mingled’’ with those of Danzeisen. In such circumstances, I
find that General Counsel has not shown sufficient facts or
cause to find individual liability.8
Accordingly, I find that David Danzeisen is not individ-
ually liable for the unfair labor practices of Respondent
Company and will recommend that the complaint herein be
dismissed against him, individually.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of the Respondents set forth in section II,
above, occurring in connection with the operations of Re-
spondent Company described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce, and the
free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
I have found that Respondent Company and Respondent
Union violated Section 8(a)(1), (2), and (3) and Section
8(b)(1)(A) and (2), respectively, by maintaining in force and
effect an arrangement and practice whereby part-time em-
ployees, none of whom were members of the Union, were
effectively prevented from becoming full-time employees and
members of the Union, despite the fact that many had at-
tained eligibility pursuant to the relevant collective-bar-
gaining agreements, and were thereby denied the higher pay
rates and other benefits given to favored union members.
Therefore, I shall recommend that Respondent Company and
Respondent Union be ordered jointly and severally to make
whole those nonunion part-time employees, who were denied
full-time status and membership in the Union despite having
achieved eligibility under the contracts, for any loss of earn-
ings and benefits with interest that they may have suffered
by reason of Respondents’ discrimination against them since
a date 6 months prior to the filing and service of charges
here, and consistent with Section 10(b) of the Act. This rem-
edy should include conversion to full-time status of those
employees who, during the relevant period, had met the eligi-
bility requirements set forth in the collective-bargaining
agreements.
Having found, specifically, that part-time employee Gloria
Gerosa had been prevented from achieving the full-time sta-
tus under the provisions of the 1981–1984 agreement as a re-
sult of Respondent Company’s unlawful reduction of the
number of hours she worked each week, in violation of Sec-
tion 8(a)(3) and (1) of the Act, I shall recommend that Re-
spondent Company make her whole for any loss of earnings
with interest or other benefits she may have suffered by rea-
son of the unlawful discrimination practiced against her, and,
in addition, convert her to full-time status.
I have found that Respondent Company unlawfully dis-
charged, in violation of Section 8(a)(3) and (1) of the Act
by reason of their union and other protected concerted activi-
ties, the following named employees: Florence Parson, Helen
Genco, Mary Ann Rescigno, Camille Papineau, Joseph
Hughes, Rosemarie Stueck, Lauren Dickerson, and Diana
Picucci. Accordingly I recommend that Respondent Company
be ordered to reinstate them to their former positions or, if
no longer available, to a substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings or other
monetary loss they may have suffered as a result of the dis-
crimination against them, less interim earnings, if any. The
backpay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed in the manner described in Florida Steel Corp.,
231 NLRB 651 (1977).9
In addition with respect to these discriminatees, Respond-
ent Company should be ordered to convert to full-time driver
or regular driver, any of these named employees who during
the time periods referred to above had satisfied the standards
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The record reveals that the following named employees received memo-
randa from Respondent Company releasing them from lawsuits brought against
them and reinstating them unconditionally with seniority and other previously
held benefits. They are Tom Girling, Jule Prescott, Elizabeth Izzo, Roland
Petruzzi, Jacob Werner, Theresa Kriner, John Myers, Peter Landolt, Alexan-
dria Cortez, Thomas Larrywon, Frank J. Mahoney, Robert E. Pfaff, Dorothy
Grove, John Fisher. There are indications that other part-timers were similarly
involved and I leave it to the compliance stage of this proceeding to determine
any other employees similarly situated.
11 Because the provisions of employee benefit fund agreements are variable
and complex, the Board does not provide for interest at a fixed rate on fund
payments due as part of a make-whole remedy. This determination is left to
the compliance state. Merryweather Optical Co., 240 NLRB 1213 fn. 7
(1979).
for hours and/or time worked set forth in the relevant collec-
tive-bargaining agreements for such full-time or regular driv-
er positions.
I have also found that a certain number of drivers had
been discharged on January 9, 1981, and were also unfair
labor practice strikers. These employees were conditionally
reinstated on the following workday, and thereafter had been
unconditionally reinstated on February 24, 1981. I rec-
ommend that those employees be made whole for any losses
they may have sustained, either monetarily or in any other
manner, during the period of their conditional reinstatement.
Moreover, Respondent Company shall convert these employ-
ees, as with the discharged employees, to full-time driver or
regular driver status if during the relevant periods they had
achieved the contractual requirements for such conversion.10
I have found that Respondent Company, in violation of
Section 8(a)(1) of the Act, instituted a lawsuit for damages
against employees who engaged in protected concerted ac-
tivities, and, in addition, commenced contempt actions
against certain of the employees similarly engaged in the
courts of the State of New York. These lawsuits have been
withdrawn. I recommend that Respondent Company make
the defendants in the civil complaints whole for any losses
they may have sustained as a result of such litigation, includ-
ing all legal expenses incurred in the defense of such suits.
Having found that Respondents, respectively violated Sec-
tion 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of
the Act in the implementation and operation of the health,
welfare, pension and supplemental unemployment funds, I
recommend the following remedy.
That the Company and the Union be ordered jointly and
severally to make whole those employees who, having met
the criteria for regular or full-time employee status, were un-
lawfully denied that status and consequently excluded from
participation in the funds. This shall include any loss of ben-
efits and/or contributions which should have been made to
the funds on their behalf, for the period 6 months prior to
the filing and services of the charges herein, as is consistent
with Section 10(b) of the Act.11 I also recommend that Re-
spondents be ordered to compensate the funds for any admin-
istrative expenses and loss of interest incurred by the funds
as a result of their acceptance of retroactive benefit pay-
ments. Longshoremen ILA Local 1593 (Caldwell Shipping),
243 NLRB 8 (1979), enfd. 644 F.2d 408 (5th Cir. 1981).
Additionally, having found that the Union and Company
violated the Act by discriminatorily applying a settlement
agreement regarding the supplemental unemployment benefit
fund, I recommend that all employees at the time of settle-
ment, who were excluded from participation, be awarded the
amount they would have realized from the settlement but for
the Respondents’ unfair labor practices.
CONCLUSIONS OF LAW
1. Respondent Vanguard Tours, Inc., and its wholly owned
subsidiary Bedford Bus Co., Inc., are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Vanguard violated Section 8(a)(1) of the
Act as follows:
(a) Threatening part-time employees with loss of jobs
should they continue seeking increased wages and better
working conditions.
(b) Threatening closure of its Yorktown terminal as well
as discharge if representatives of part-time employees per-
sisted in attempting to obtain salary increases.
(c) Warning employees and threatening reprisals unless
employees stay out of labor problems.
(d) Assaulting employees who were engaged in protected
activities by concertedly not responding to radio calls.
(e) By maintaining an overly broad rule prohibiting discus-
sion while on duty or on company property, thereby pre-
cluding solicitation or discussion on the employees’ own
time such as lunch and break periods.
4. By recognizing and dealing with certain employees who
were both shop stewards and agents of the Union while in
addition, acting as company supervisors, Respondent Van-
guard interfered with the administration of Respondent Union
in violation of Section 8(a)(2) and (1) of the Act.
5. By maintaining in cooperation with Respondent Union
a disparate system of wages and benefits through which
union members were favored over nonunion employees with
regard to rates of pay, vacation, health and welfare contribu-
tions, and benefits and other conditions of employment, Re-
spondent Vanguard violated Section 8(a)(1), (2), and (3) of
the Act.
6. Respondent Vanguard further violated Section 8(a)(1),
(2), and (3) of the Act by executing and maintaining a provi-
sion in its collective-bargaining agreement with Respondent
Union which determined eligibility of employees for partici-
pation in a pension fund on the basis of membership in the
Union.
7. Respondent Vanguard further violated Section 8(a)(1),
(2), and (3) of the Act by settling the Union’s lawsuit to re-
cover payments due to a contractually provided supplemental
unemployment benefit fund on the basis of lump sum pay-
ments to only full-time union member employees, despite the
fact that the fund was applicable to all employees covered
by the collective-bargaining agreement.
8. The strike and the picketing by the part-time employees
at the Yorktown terminal commencing on January 9, 1981,
was an unfair labor practice strike.
9. By engaging in surveillance of striking employees’
union or other protected concerted activities, and by threat-
ening strikers with discharge, and with loss of benefits and
seniority unless they abandoned their strike, Respondent
Vanguard further violated Section 8(a)(1) of the Act.
10. By discharging striking employees because they en-
gaged in union or other protected concerted activities, and
thereafter reinstating them with loss of seniority; and by re-
275VANGUARD TOURS
1 Subsequent to the close of the remanded proceeding, by letter dated 14
April 1987, Rosenthal, counsel for Respondent Company requested that the
firm of Bondy & Schloss, 6 East 43d Street, New York, New York 10017,
be substituted for the above-noted firm. Rosenthal indicated he is now a mem-
ber of Bondy & Schloss. The substitution is noted and the records should be
corrected accordingly.
quiring strikers, as a condition of reinstatement, to sign a
stipulation binding them to refrain from certain activities, Re-
spondent Vanguard violated Section 8(a)(3) and (1) of the
Act.
11. By discharging employees Genco, Rescigno, Papineau,
Steuck, Parsons, Dickerson, and Hughes, and failing to rein-
state them, because of their union and other protected con-
certed activities, Respondent Vanguard violated Section
8(a)(3) and(1) of the Act.
12. By reducing the hours of work of employee Gloria
Gerosa, for unlawful discriminatory reasons, Respondent
Vanguard violated Section 8(a)(3) and (1) of the Act.
13. By filing a civil lawsuit and seeking to recover com-
pensatory and punitive damages in the Supreme Court of the
State of New York against certain named striking employees,
who had been engaged in an unfair labor practice strike and
other protected concerted activities, Respondent Vanguard
violated Section 8(a)(1) and (3) of the Act. Additionally by
requiring certain of the named defendants in the civil action,
as a condition of reinstatement, to sign a stipulation of dis-
continuance of the action which provided, among other
things, for reinstitution of the lawsuit if the defendants en-
gaged in similar activities, Respondent Vanguard further vio-
lated Section 8(a)(1) and (3) of the Act.
14. Respondent Union, through its shop stewards and
agents, restrained and coerced employees in the exercise of
their Section 7 rights in violation of Section 8(b)(1)(A) of the
Act by engaging in the following conduct:
(a) Threatening employees by advising them to stay out of
labor problems and not get involved.
(b) Assaulting employees who have engaged with other
employees in protected concerted activities.
(c) Refusing to show to employees the collective-bar-
gaining agreement which determines their rights.
(d) Engaging in surveillance of the activities of striking
employees and writing their names on a pad of paper.
(e) Threatening discharge of employees engaged in an un-
fair labor practice strike.
15. Respondent Union violated Section 8(b)(2) and (1)(A)
of the Act by maintaining an arrangement and practice in co-
operation with Respondent Vanguard, whereby the latter fa-
vors union members over nonunion employees who are also
included in the bargaining unit, in the manner set forth above
in Conclusion of Law 5.
16. Respondent Union further violated Section 8(b)(1)(A)
and (2) of the Act by executing and maintaining a collective-
bargaining agreement with Respondent Vanguard which pro-
vided for a pension plan in which participation was based on
membership in the Union; and moreover by settling litigation
concerning nonpayment by Respondent Vanguard to a sup-
plemental unemployment fund which on its face covered all
employees in the bargaining unit, on the basis of payments
made only to employees who were members of the Union.
17. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
18. The complaint shall be dismissed insofar as it alleges
violations against Respondent David Danzeisen, individually.
19. The complaint shall be dismissed with respect to alle-
gations not specifically found to be violative of the Act.
[Recommended Order omitted from publication.]
Leonard Grumbach, Esq., for the General Counsel.
Joseph S. Rosenthal, Esq. (Friedlander, Gaines, Cohen,
Rosenthal & Rosenberg), of New York, New York, for
Respondent Company.1
Roy Barnes, Esq., of Hempstead, New York, for Respondent
Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. On 17 Novem-
ber 1986, the Board remanded this proceeding to the admin-
istrative law judge for further consideration consistent with
the Decision and Order in Long Stretch Youth Home, 280
NLRB 678 (1986), and Res-Care, 280 NLRB 670 (1986).
By letter dated 25 November 1986, I requested the parties
to submit their views by 12 December as to the necessity for
reopening the record on the jurisdictional issue raised by the
above-cited cases and thereafter, at the request of Respondent
Company I extended the time of the parties to do so until
9 January 1987. Respondent Company and Union then re-
quested that the record be reopened, while the General Coun-
sel took the position that this was not necessary. After con-
sideration, I decided that the record should be reopened, and
wrote the parties to that effect on 13 January 1987, setting
a hearing date for 2 February unless they were notified to
the contrary. Having been only informed that Respondent
Company needed more time to obtain its witnesses, I advised
that I would be amenable to a date in March, and the parties
thereupon agreed to a reopened hearing on 2 March 1987,
which I confirmed by letter dated 27 January. Counsel for
Respondent Company then wrote on 17 February requesting
that the hearing be rescheduled from 2 March to 6 April,
‘‘because the undersigned will be out of the State and unable
to attend on said date.’’ In view of the lapse of time and be-
lief that the parties had cleared their calendars for the March
date, by letter dated 18 February I denied the request for
postponement to 6 April. Upon further oral requests by coun-
sel, I thereafter agreed to further postpone the hearing to 10
March.
The hearing on the remand was convened on 10 March
1987. All parties were present but no one presented any wit-
nesses. It was the General Counsel’s position that the record
in the underlying proceeding was sufficient to make a deter-
mination on the issue presented. Both the Respondent Com-
pany and Respondent Union stated for the record that they
they relied on the Board’s holding in Res-Care, supra. More-
over the parties waived the filing of briefs.
On the entire record I make the following
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
The issue raised by this remand is whether the Board
should assert jurisdiction over Respondent Company in view
of its relationship with the school districts, which are exempt
entities. The record contains certain facts relevant to a dis-
cussion of this issue. These are derived from the testimony
of John Silvanie, then general manager of Respondent Com-
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany. At this point it may be noted that David Danziesen,
who had been president of Respondent Company as well as
a sole stockholder, had, in the interim, sold his interest in the
Company, according to the statement of counsel for Re-
spondent Company at the remanded hearing. In addition it
was also stated that Danziesen was in Florida at the time and
therefore unavailable. Moreover Silvanie had apparently left
the employ of Respondent Company, and counsel stated he
could not be located. Silvanie’s original testimony was basi-
cally uncontroverted on matters relevant to this issue. He tes-
tified that he was responsible for the direction of the Com-
pany in all matters except financial. He formulated employee
and supervisory policy, including the handling of all labor
negotiations with the Union, serious grievances, and collec-
tive bargaining. While Silvanie stated that he delegated re-
sponsibilities concerning maintenance, safety and personnel,
he emphasized that there was no delegation concerning labor
relations decisions. Discharges of employees were all han-
dled through his office, and discipline was handled locally
with the exception of serious infractions.
Silvanie testified that the school districts determined the
number of buses to be operated by Respondent Company.
The districts also decided the routes to be followed except
in this instance, it may be done in consultation with the ter-
minal managers or head dispatchers of the Company. In ad-
dition the superintendent of each school district or his rep-
resentative must approve each driver, and may remove driv-
ers for any reason, and also make recommendations as to as-
signment of drivers to certain routes.
In Yorktown, a typical district, there is a superintendent of
transportation who is employed and paid by the school dis-
trict. Prior to the beginning of each school year, every
schoolbus driver in the State of New York is required to un-
dergo a physical examination and reapply to the school dis-
trict in which she or he is driving. The superintendent re-
ceives the reports on the physical examination and the re-
application and the most recent of each driver’s abstract of
driving. He then will determine whether that person is to be
recertified to drive in the particular school district. As noted
the superintendent can ask the Company to remove a driver
from a route permanently or temporarily, or request transfer
of the driver to another route.
Silvanie was able to give a few examples of such action
on the part of the school district. He recalled that the super-
intendent of transportation in Yorkville was concerned about
a driver who had allegedly been drinking between the a.m.
and p.m. runs. After conversations with the driver, Silvanie
said that the person was either dismissed or may have re-
signed. In addition there was a request or a demand that a
driver on a Yorktown School run be removed. The Company
complied but then, at the request of the Union, kept the em-
ployee and transferred him to another division. Silvanie also
recalled that an employee, Helen Genco, was transferred to
another route pursuant to the request of an assistant principal
who claimed that she was unable to cope with some ram-
bunctious kids and that the run needed a ‘‘male, authorative
figure.’’
Although the record contains a good deal of evidence con-
cerning collective-bargaining negotiations between the Re-
spondent Union and the Respondent Company including
meetings at which there was present representatives of Com-
pany, Union and an employee-committee on behalf of part-
timers, there is no indication of presence or participation by
any representative of the school districts.
In both Res-Care and Long Stretch the Board determined
to apply the principles set forth in National Transportation
Service, 240 NLRB 565 (1979), in which it held that the ju-
risdictional test is whether an employer has control over the
conditions of employment of its employees in sufficient man-
ner so as to enable it to bargain effectively with a union. In
Res-Care the Board found that the exempt entity had such
control over the employer’s labor relations that the employer
could not engage in effective bargaining with the Union, and
therefore decided that jurisdiction should not be exercised.
Respondent Company’s and Respondent Union’s reliance on
Res-Care in the instant case is misplaced. More applicable
to the situation here is the decision in Long Stretch, in which
it was found that the employer did ‘‘retain sufficient control
over economic terms and conditions of employment essential
to meaningful bargaining.’’ In Long Stretch it was found
that, while the exempt entity did have some very limited
control over hiring and firing such as a requirement to fill
certain job classifications and that employees meet certain
limited qualifications for those positions, it was nonetheless
determined that this did not ‘‘significantly limit its ability to
engage in meaningful bargaining.’’
In this case is is established that a typical district would
have a superintendent of transportation; that drivers em-
ployed by Respondent Company were required to take phys-
ical exams, submit to the school district their driving records,
reapply each year, and have their record recertified. On occa-
sion the Company would honor complaints from the school
district that a driver was not satisfactory, and even requests
from the superintendent that a driver be removed either per-
manently, temporarily, or transferred to another route. Exam-
ples of this occurring are very few. In addition school dis-
tricts normally determine how many buses Respondent oper-
ated and consult with Respondent as to the routes followed
by the buses.
On the basis of these facts it appears that a more recent
decision of the Board, Rustman Bus Co., 282 NLRB 152
(1986), is more directly in point. In Rustman, pursuant to a
remand similar to this proceeding, the Board determined that
the ‘‘monitoring consists largely of operational controls and
is not so restrictive as to preclude the employer from engag-
ing in meaningful collective bargaining.’’ In Rustman, as in
the instant case, the employer’s contracts with the school dis-
tricts required that drivers meet minimum requirements such
as good driving records, no felony convictions, medical ex-
aminations, and the like. In addition the districts did not par-
ticipate in the hiring and firing processes. However the ex-
empt entity did have the right to ask that a driver be re-
moved from a particular run, which did not prevent the em-
ployer from reassigning the employee to a different run or
different program. Also complaints as to a driver’s conduct
or performance were received and investigated. However in
Rustman the Board found that these rights and actions by the
school district were not sufficient to infringe on day-to-day
operations or control of labor relations.
In addition to the similarities to Rustman described above,
the instant case arises in a different posture. Res-Care, Long
Stretch, and Rustman are all representation proceedings. The
instant case is an unfair labor practice proceeding which re-
veals, among other things, an extensive history of collective
277VANGUARD TOURS
bargaining. The record indicates evidence and occurrences at
various collective bargaining and other types of meetings in
which the participants were identified. As noted above, in
none of these sessions was there any appearance by any rep-
resentative of a school district. More importantly there is no
evidence that Respondent Company and Respondent Union
were in any manner inhibited by the Company’s contractual
relationship with an exempt entity. Indeed Silvanie testified
that he formulated employee policy, supervisory policy, and
handled labor negotiations with the Union including collec-
tive-bargaining negotiations and did not delegate that power.
The record shows that on one occasion when representatives
of the part-timers were seeking wage increases, Danziesen
stated that if he were to agree to their demands it is possible
that he would have to increase the bid for a school district
contract and perhaps lose it. However that is the economic
risk that any employer faces in collective bargaining. I find
therefore, on the basis of the entire record, that Respondent
Company was in control of labor relations on a day-to-day
basis and was not impeded by any action or conduct by an
exempt entity with respect to its ability to engage in mean-
ingful collective bargaining with Respondent Union.
Accordingly, I find that jurisdiction over Respondent Com-
pany was properly asserted, consistent with the Board’s deci-
sions in Res-Care, Long Stretch, and Rustman, and therefore
recommend that the Board affirm the Order issued in my de-
cision in this proceeding with respect to jurisdiction.