NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Dedicated Services, Inc. and Local 1181-1061, Amalgamated Transit Union, AFL–CIO and Local
713, International Brotherhood of Trade Unions International
June 27, 2008
DECISION AND ORDER
By Chairman Schaumber and
Member Liebman
On March 4, 2008,
Administrative Law Judge Steven Fish issued the attached decision. The Respondent filed exceptions and a supporting
brief. The Charging Party filed a brief
in response to the Respondent’s exceptions, and the General Counsel filed a
brief in support of the judge’s decision.
The National Labor
Relations Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Dedicated
Services, Inc.,
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not direct or urge our employees or applicants for employment,
to sign cards authorizing Local 713, International Brotherhood of Trade Unions
International Union of Journeyman and Allied Trades (Local 713) to represent
them or authorize dues for Local 713 to be deducted from their salary.
We will not inform our employees or applicants for employment that they
must sign cards authorizing Local 713 to represent them or to have dues for
Local 713 deducted from their salary, in order to be employed by us.
We will not recognize Local 713 as the exclusive collective-bargaining
representative of our employees at our
We will not enter into and enforce any collective-bargaining agreement
with Local 713 containing union-security and dues-checkoff provisions at a time
when Local 713 does not represent a majority of such employees.
We will not enforce and/or give effect to any current
collective-bargaining agreement with Local 713; provided, however, that nothing
in the Board’s Order shall authorize or require the withdrawal or elimination
of any wage increase or other improved benefits or terms and conditions of
employment that may have been established pursuant to the performance of such
collective-bargaining agreement.
We will not in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them by Section 7
of the Act.
We will withdraw and withhold all recognition from Local 713 as the
exclusive collective-bargaining representative of our employees, unless and
until the labor organization has been certified by the Board as the exclusive
representative of such employees.
We will reimburse, with interest, all present and former employees
for all initiation fees, dues, and other moneys paid by them or withheld from
them pursuant to the terms of dues-checkoff and union-security provisions of
the collective-bargaining agreements between us and Local 713.
Dedicated Services, Inc.
Annie Hsu and Sharon Chau, Esqs., for the General Counsel.
Denise A.
Forte and Scott Trivella, Esqs. (Trivella,
Forte and Smith, LLP), of
Richard
Brook (Meyer Suozzi, English, Klein, P.C.), of
Brian
McCarthy, Esq. (O’Connor & Mangan, P.C.), of
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge. Pursuant to charges and amended
charges filed by Local 1181-1061 Amalgamated Transit Union, AFL–CIO (Local 1181), on August 13, and
October 23, 2007,[1]
respectively, the Regional Director for Region 29, issued a complaint and notice
of hearing on October 29, alleging that Dedicated Services, Inc. (Respondent)
violated Section 8(a)(1), (2), and (3) of the Act, by rendering unlawful
assistance to Local 713 International Brotherhood of Trade Unions, International
Union of Journeyman and Allied Trades (Local 713), and by recognizing and
signing a collective-bargaining agreement with Local 713, containing a union-security
clause, even though Local 713 did not represent an uncoerced majority of
employees in the unit, and at a time that Respondent did not employ a
representative complement of employees and was not engaged in its normal
operations. The trial with respect to
the allegations in the above complaint was held before in
Findings of Fact
i. jurisdiction and labor organization
Respondent, is a
corporation, with its principal office and place of business at
Based on a
projection of its operations, from February 26, at which time Respondent
commenced its operations, to October 25, 2007, a period which will be
representative of its operations in general, Respondent in conducting its
business operations, will annually provide services valued in excess of
$250,000 to New York City, a governmental entity that meets the Board’s
standard for the assertion of jurisdiction, and will purchase and receive at
its Richmond Hill facility goods and materials in excess of $5000 directly from
suppliers located within the State of New York, which supplies, in turn, purchased
and received the goods and materials directly from outside the State of New
York.
Respondent
admits, and I so find, that it is and has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also
admitted and I so find, that Local 1181 and Local 713 have been and are labor
organizations with the meaning of Section 2(5) of the Act.
ii. facts
Charles Mattera,
the president, sole shareholder, director, and officer of Respondent, is also
the president, and sole shareholder, director, and officer of Dedicated
Transportation, Inc., a transportation services provider located at 211 Street
in
Dedicated
Transportation and Local 713 are parties to a Collective Bargaining Agreement (the
Agreement) which runs from November 1, 2006, until October 31, 2009. The Agreement states that it is between Local
713 “acting for and behalf of itself and the employees covered by this Agreement,
now employed or hereafter to be employed by the Employer, Dedicated Transportation
Inc.”
The recognition
clause states that Local 713 has been designated by the majority of employees
in the bargaining unit and the unit is subsequently defined as follows:
Full-time ambulette drivers, mechanics,
assistant mechanics, matrons and service persons, excluding all other
employees, including executive, managerial and confidential employees,
temporary employees, relief employees, watchmen and supervisors as defined by
the National Labor Relations Act (as amended).
Dedicated
Transportation employed 38 employees in the bargaining unit covered by the
above contract.
In May 2006,
Dedicated Transportation submitted a bid to the NYCTA to provide Access-A-Ride
services. Access-A-Ride is a service
provided by the NYCTA to residents of
In June 2006,
Mattera, on behalf of Dedicated Transportation began negotiations with
representatives of the NYCTA, concerning the awarding of a contract for these
services. During the course of these
negotiations, it became clear that Dedicated Transportation would lease up to
50 vehicles from the NYCTA to perform the work required. Dedicated Transportation at the time had 30
vehicles of its own at its facility in
In early
November 2006, Dedicated Transportation was awarded the bid by NYCTA. However, shortly thereafter, at a meeting
with NYCTA officials, Mattera was informed that the City did not want their
vehicles used for Access-A-Ride to have the same name on them, as Dedicated
Transportation. Therefore, it was
suggested by the NYCTA that Mattera form a separate corporation for the
Access-A-Ride contract. Thus, Mattera
formed Respondent, and filed incorporation papers on December 14, 2006.
On the very same
day, as demanded by the NYCTA, Dedicated Transportation signed a guaranty that
if Respondent failed to or was unable to perform the terms of the contract with
the NYCTA, that Dedicated Transportation perform such obligations under the contract. I would also note in this regard that in
making its bid, Dedicated Transportation was required to submit financial
history for 3 years, which is required by the NYCTA, which does not award
contracts to start up companies without a financial history or a guarantee from
a parent company. Dedicated Transportation
also loaned over $300,000 to Respondent, in order to finance the startup of Respondent’s
operations.
During the
bidding process, Dedicated Transportation submitted its contract with Local 713 to the NYCTA, and made its bid
based on the terms of such contract, which Mattera believed would be applicable
to the Access-A-Ride employees. However,
Mattera was aware that the other Access-A-Rive providers paid over $2-per-hour
more than the wages provided to its Dedicated Transportation employees. Therefore, Mattera knew that he would have to
pay the extra $2 in wages, in order to attract employees, since otherwise such
employees would work for one of the other contractors. Mattera informed representatives of Local 713[2]
about his desire to pay employees more than the Local 713 contract called for,
and they were agreeable to this. Mattera
Scalza and Acevedo had previously discussed applying the Dedicated Transportation
contract to Respondent’s employees, and Mattera had agreed to do so. Nothing was signed or put in writing with
respect to this Agreement by Mattera.[3]
In December
2006, Respondent began to advertise in the newspaper for employees to perform
its Access-A-Ride work. Riccardo Baerga
saw the ad and responded by phone. He
spoke to Randy Russo.[4] Russo asked Baerga if he had a CDL, and if
so, to fax it to Respondent. Baerga
complied with Russo’s request. In late
January 2007, Russo telephoned Baerga, informed him that his CDL was good and
asked if he was still interested in employment.
Baerga responded, “Yes.” Russo
told Baerga that Respondent would be having a training class, starting in mid-February,
and asked Baerga to come in and fill out an application. Baerga was told to report to the Dedicated
Transportation facility on 211 Street on February 5. Present along with Baerga and Russo were
three other men. Russo gave each of the
individuals a folder containing an application for employment with Respondent,
W-2 forms, letters of reference, agreement to submit to a blood test, and a
card for Local 713. The card was entitled
“application and check off authorization form.”
The card by its terms authorizes the Employer to deduct dues from the
signer’s wages, and be forwarded to Local 713.
The card does not expressly authorize Local 713 to represent the
signer. One of the individuals asked
what the union card was for. Russo
replied that it was a union card and that it had to be filled out as part of
the application. Russo added that this
was the Union that comes with the Company, and this
On the very same
day that Baerga signed his Local 713
card, Respondent executed a Recognition Agreement with Local 713. It reads as follows:
LOCAL 713 I.B.O.T.U. IUJAT,
RECOGNITION AGREEMENT
It is hereby stipulated and agreed this February 5, 2007 by and between Local 713 International Brotherhood of Trade Unions IUJAT, hereinafter referred to as the UNION, and Dedicated Service Inc. hereinafter referred to as the EMPLOYER that:
Whereas, the
Whereas, the EMPLOYER recognizes the
Whereas, both the
Now, therefore, in consideration of the mutual convents, and agreements hereinafter contained, it is agreed that :
1. The EMPLOYER recognizes the
2. The EMPLOYER further agrees to commence negotiations with the UNION Immediately, and said negotiations are to continue until completion.
3. This agreement shall remain in full force and effect from the above cited date, up to and including the 1st day that a fully executed collective bargaining agreement is consummated.
This document
was signed by Mattera and Scalza. Respondent
signed this document, according to Mattera, after Acevedo informed him that
some of the drivers had reached out to him, and he wanted to organize
Respondent’s employees. Acevedo asked
Mattera to sign an agreement for Local 713 to “talk to the people and organize
the shop.” Mattera states that Acevedo
did not have, nor did he show Mattera any signed union cards at the time. In fact, Acevedo told Mattera that he did not
have any signed cards at the time.
Acevedo informed Mattera that he would go to the classes and speak to
the employees.[5]
In Respondent’s
position, paper submitted during the investigation, it contends that Respondent
recognized Local 713, on February 5, based upon the fact that Local 713 had
obtained six authorization cards from Respondent’s employees. In that regard, the parties stipulated that
the only authorization cards that Respondent’s employees authorized Local 713
to be their representative, were the six cards attached. These six cards, including Baerga’s card,
were all identical. (I.e., they were “application and checkoff authorization
forms.”) As I have related above, Baerga’s
card was signed on February 5, although it was dated February 1, by someone
other than Baerga. Further the date of
employment listed on Baerga’s card, was February 26, the date that Respondent
started servicing clients. The remaining
five cards were allegedly signed by Andres Vargas, Annette Brown, Dwight
Cockrell, Andrew Cumming, and Tony Tong.
No testimony or other evidence was offered by any party as to the
circumstances of the signing of these five cards.[6] The cards of Crockwell, Brown, Cumming,
Vargas, and Tong were dated February 2.
The card for Tong was dated February 1.
Crockwell, Brown, Cumming, Vargas, and Tong did not testify, so the
record is unclear as to when or how they were hired. Mattera testified that all six of these
employees (including Baerga), plus four other employees were hired “in late
January or early February, after being interviewed and having their licenses
checked.” Mattera testified and the
payroll records confirm that no unit employee was paid until February 12,[7]
the date the training commenced. Crockwell
had been an employee of Dedicated Transportation. He asked Mattera if he could work for
Respondent, since Respondent’s pay scale was going to be higher than that of
Dedicated Transportation. Mattera agreed
and Crockwell was hired by Respondent.
The payroll
records of Respondent reflect that starting on February 12, the first date that
any unit members were paid, Respondent employed 10 employees. In addition to the six employees described
above, Respondent also employed Barry Jones, Gail McDaley, John Pacheco, and
Michael Dougherty. McDaley had, like
Crockwell, been employed by Dedicated Transportation, and had asked Mattera to
be employed by Respondent, in order to obtain higher pay.
Further, the
record reveals that at some point undisclosed by the record, Mattera spoke to
Acevedo from Local 713, and they agreed that when employees such as Crockwell
and McDaley were transferred to Respondent from Dedicated Transportation, they
would continue to receive contractual benefits under the Dedicated Transportation
contract, such as medical benefits.
Further, according to Mattera, Respondent continued to checkoff dues for
these employees, and send same to Local 713, even prior to Respondent signing a
contract with Local 713 in May.[8]
As related
above, training began on February 12, the first day that Respondent’s employees
were paid. The training was held at
Russo’s
During the
training, the employees were told of their starting date and their shifts by
Russo. At one point during the second
week of training, Acevedo came to the session, and was introduced by Russo as
the “person from the
The payroll
records reveal that during the 2-week training period, starting on February 12,
Respondent paid the 10 employees listed above $9 per hour, as Baerga had been informed.
As also related
above, Respondent began servicing clients on February 26. For the payroll period ending March 4 (which
included February 26), Respondent’s payroll records revealed that it employed
the 10 drivers who went through the training session, and who were now paid the
$11 per hour Baerga had been promised.
It also employed a Moses Solomon, who was hired in March at a salary of
$13.50 per hour.[9]
The payroll
records also reveal that Respondent hired three employees as mechanics, during
that week. They were Karanchan Basdeo
hired on February 26; Jay Divecha, hired on February 24; and Carlos Martinez,
hired on February 20. Basdeo and
Respondent began
its operations during the week on February 26 with 10 vehicles, and Mattera conceded
that he expected the amount of vehicles needed and employees hired would
increase substantially. Indeed as noted,
he had agreed to lease at least 50 vehicles from the NYCTA.[12] During the next payroll period, the week
ending March 11, Respondent hired eight new drivers. Thus, for that week Respondent employed 18 drivers.[13] Thus, for that week, Respondent employed 18
drivers and 3 mechanics, as well as the same employees listed above as “Management.”[14]
Dwain Arietta
was employed by TFM another Access-A-Ride contractor. In late February, he heard from other drivers
in the industry, that Respondent, another Access-A-Ride carrier, would be
opening up. He decided to apply and
spoke to Russo at the
In June, Arietta
returned to Respondent’s facility to see if the job was still available. Russo replied that the job was still open,
and again gave Arietta a portfolio of forms, including a union card to fill
out. On this occasion, Arietta asked
what if he did not want to fill out the card.
Russo replied that if he did not fill out the card, he could not work
for Respondent. Arietta filled out all
the forms, including the union card, and returned them to Russo. He began working for Respondent as a driver
in the last week of June.
Arietta informed
representatives of Local 1181 that Russo had told him that he needed to sign a
Local 713 card in order to work for Respondent, sometime between March and
June.
Respondent
continued to hire additional employees each week thereafter, as the number of
the vehicles leased from the NYCTA increased.
On April 30, it hired nine drivers, and two “management” employees,
On May 1,
Respondent and Local 713 entered into collective-bargaining agreement effective
from May 1, 2007, through April 30, 2010.
The Agreement contains a union-security clause and states that Local 713
has been designated by a majority of Respondent’s employees in the unit, and
has exhibited to Respondent, “authorization signed by a majority of such
present employees of the Employer.”
The Agreement
provides for recognition in the following unit:
Full-time and part-time Access-A-Ride
drivers and mechanics, helpers and maintenance personnel, excluding all other
employees, including but not limited to executive, managerial and confidential
employees, temporary employees employed for 25 hours or less per week for a
period of no more than (90) ninety days, relief employees, watchmen and supervisors
as defined in the National Labor Relations Act (as amended).
The Agreement
signed by Local 713 with Respondent is virtually identical with the contract
signed between Local 713 and Dedicated Transportation, in most respects. There are, however, certain exceptions. In addition to the differences in the unit
description, there are differences in the seniority, wages, workweek, and
Welfare Fund clauses. With respect to
seniority, both contracts define seniority, as “an employee’s length of
continuous service with the Employer in the bargaining unit.” Thus, there is no credit given in the
Respondent’s contract for service with Dedicated Transportation. The starting wage rate for drivers under the
Dedicated Transportation contract has $8.25 per hour. It also provides for a starting wage of $7.25
for matrons, and has no rate listed for mechanics. The Agreement also provides for an incentive
bonus of 50 cents per hour for drivers if they comply with various listed
standards. Respondent’s contract with
Local 713 provides for a minimum starting wage of $11 per hour for drivers,
with a caveat that experienced Access-A-Ride driver’s wages may differ
according to years worked in the Access-A-Ride industry. This contract provides for minimum rates for
mechanics ($13 per hour), and mechanics and maintenance personnel at $10 per
hour. There is no provision for an
incentive bonus, as reflected in the Dedicated Transportation contract.
The workweek in
the Dedicated Transportation contract is defined as based on 8 hours per day
and 40 hours or less if they work less or more if scheduled more. The workweek in Local 713’s contract with Respondent,
defines workweek as Monday 12:01 a.m. through Sunday 12 p.m., and states that
any disputes concerning the number of route hours assigned to a particular
route shall not be subject to arbitration.
The clause also allows the Respondent to “establish reasonable
productivity standards,” for which employees could be disciplined, if they fail
to meet such standards. The Welfare Fund
clause in the Dedicated Transportation contract mandates contributions for all
unit employees who work 30 hours per week or more, and provides for two types
of coverages. Plan B, is a single coverage
plan which is applicable to employees hired before November 1, 2002, and calls
for payments of $200, $205, and $210 monthly for each employee.[16] Plan C, single coverage, which applies to all
“new” employees calls for payments of $100, $105, and $110 monthly on the same
dates. For new employees, payments are
to be made after 90 days of probation of continuous service. Employees are not eligible for coverage until
90 days of contributions are made.
Further, the Employer is not required to pay for medical coverage on
behalf of an employee who has medical coverage through a spouse or other employment.
Respondent’s
contract with Local 713 provides for a single plan (plan C), with payments for
each full-time employee, of $110, $115, and $120 per month, to be made on September
1, 2007, 2008, and 2009, respectively.
Contributions need not be made for employees until they complete a 120-day
probationary period, and the employees are eligible for coverage after 4 months
of continuous service.
The contract as
in the Dedicated Transportation Agreement, does not obligate Respondent to make
contributions for employees who have medical coverage through a spouse or other
employment, but adds a provision not included in the Dedicated Transportation
contract, that in the event an employee presents proof of alternate coverage
and waives coverage with Respondent, Respondent will pay such employee $50. Further, Respondent’s contract with Local
713, unlike the contract with Dedicated Transportation, gives Respondent the “sole
and absolute right to provide alternative medical coverage which is equal to or
better than what they are currently receiving upon ninety days written notice
to the
Finally,
Respondent’s contract, unlike its Agreement with Dedicated Transportation,
states that “should the Employer’s contract with the New York City NYCTA be
terminated for any reason, then this Agreement shall automatically be terminated
and be null and void. Upon the above
occurrence, both parties shall be released of any and all legal liabilities or
responsibilities to one another.”
For the payroll
period ending May 6, Respondent employed 39 drivers 6 maintenance employees,
and 9 individuals designated on the payroll as management.[17]
From May through
December, Respondent’s employee complement continued to increase, as the vehicles
and workload increased. For the payroll
period ending December 2, Respondent employed a total of 102 employees as
drivers and maintenance employees, and 24 employees listed as management.[18] Mattera testified that at the time of the
trial (December 17), Respondent employed 96 or 97 employees, and had leased 50
vehicles from the NYCTA. He added that
the City has asked Respondent to take 20 more vehicles, approval of which is
still pending. Once that approval is
obtained, that would necessitate Respondent hiring at least 20 more
employees. As I have detailed above,
Dedicated Transportation employed 38 employees.
Two of these employees (Crockwell and Mc Dale) were transferred over to
Respondent, as part of its original crew of drivers.[19]
Mattera
testified that as of the date of the trial, there were 7–10 employees who were transferred at their own request from
Dedicated Transportation to Respondent.
In addition to Crockwell and Mc Dale, Mattera mentioned Keith
Stewart. Stewart worked for Respondent
in the office as a road supervisor, which entails going around and checking to
see that the drivers are doing what they are supposed to be doing.[20] Mattera admitted that there is no day-to-day
interchange between the two companies.
While as I have indicated above, the work performed by the employees of
the two companies is essentially the same (i.e., transporting the elderly and
disabled), there are some differences.
Respondent leases the vehicles used for the Access-A-Ride contract from
the NYCTA, while Dedicated Transportation uses its own vehicles Respondent’s
employees collects fares from it passengers, and have 2 weeks of training,
while Dedicated Transportation employees do not collect fares, and have no
formal training program.
iii. analysis
A. The 10(B) Issue
Section 10(b) of
the Act provides that “no complaint shall be issued based upon any unfair labor
practice occurring more than six months prior to the filing of the charge with
the Board.” However, it is well established
that the 10(b) period does not begin to run until the Charging Party has
received “clear and unequivocal notice, either actual or constructive” of the
violation. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004); St. Barnabas Medical Center, 343 NLRB
1125, 1126 (2004); Leach Corp., 312
NLRB 990, 991 (1993), enfd. 54 F.3d
802 (D.C. Cir. (1995); Amcar Division,
ACF Industries, 234 NLRB 1063 (1978), enfd. 596 F.2d 1344, 1351 (8th Cir.
1979). The burden of showing such clear
and unequivocal notice is on the party raising Section 10(b) as an affirmative
defense. Broadway Volkswagen, supra at 1246; Chinese American Planning Counsel, 307 NLRB 410 (1992), review denied mem. 990
F.2d 624 (2d Cir. 1993).
In applying
these principles to the instant case, Respondent has the burden to establish
that Local 1181 (the Charging Party) had
clear and unequivocal notice that Respondent had violated the Act, outside the
10(b) period.
In that regard,
Respondent correctly asserts that Respondent signed its recognition agreement
with Local 713 on February 5, which is more than 6 months from the date of the
initial charge, which was filed on August 13.
However, that is not the end of the inquiry. Respondent must establish that Local 1181 had
clear and unequivocal notice, either actual or constructive, of the violation
outside the 10(b) period. In my view, it
has fallen far short of meeting its burden in that regard. Respondent has adduced absolutely no evidence
that Local 1181 had actual notice of the recognition of Local 713 by Respondent
on February 5, or at any other time outside the 10(b) period. (I.e., prior to February 13.) Respondent makes no such contention, but
instead argues that Local 1181 had constructive knowledge of the recognition,
that required Local 1181 to exercise reasonable diligence. Ohio
& Vicinity Regional Council of Carpenters (Schaefer Group), 344 NLRB
366, 367–368 (2005). I disagree.
Respondent
relies on the evidence that applicants were told to fill out paperwork for
employment, including signing a Local 713 card on or before February 5. The evidence in this regard from one witness,
Baerga does demonstrate that he, as well as three other applicants were
informed by Russo on February 5, that it was a union card, it had to be filled
out as part of the application, and that this Union comes with the Company and
was the representative of employees of Respondent. However, Respondent adduced no evidence that
Baerga informed Local 1181 of these facts at any time outside the 10(b) period. Indeed Baerga credibly testified that he did
not inform any Local 1181 representative about his conversation with Russo,
until September, well within the 10(b) period.
I therefore
conclude that Baerga’s knowledge of possibly unlawful acts,[21]
cannot be attributed to Local 1181, nor would it suggest to Local 1181 that it
needed to exercise any due diligence, since it knew nothing of the conversation
between Russo and Baerga. Broadway Volkswagen, supra at 1246. (None of the employees informed the Union
about unilateral changes in wages and promotions.); St. George Warehouse, 341 NLRB 904, 905 (2004) (union not shown to
have constructive notice of employer’s use of agency employees); Nursing Center at Vineland, 318 NLRB
337, 339 (1995) (union did not have constructive notice that employee’s bonus
had been terminated outside the 10(b) period until employee informed the Union,
within the 10(b) period); Fire Tech Systems,
319 NLRB 302, 305 (1995) (Although employer told employees outside the 10(b)
period that it intended to establish a nonunion operation, insufficient to
establish clear and unequivocal notice.
Notice to employees, does not constitute notice to the union.); Brimar Corp., 334 NLRB 1035 fn. 1 (2001)
(knowledge of alleged unilateral change not imputed to union for 10(b)
purposes, even though shop steward was aware of change); Patsy Trucking, Inc., 297 NLRB 860, 862–863 (1990) (Knowledge by Union members of unilateral changes, does
not constitute notice to the Union for purposes of triggering the statute of
limitations, citing Stone Boat Yard v.
NLRB, 715 F.2d 441 (9th Cir. 1983).)
Respondent also
relies on the testimony of witness Dwayne Arietta, who was employed as a driver
by TFM, another Access-A-Ride contractor.
According to Arietta, in late February he heard from other drivers in
the industry that Respondent, another Access-A-Ride carrier would be opening
up. He decided to apply and spoke to
Russo at that time. Russo gave Arietta a
folder with forms to fill out, including a Local 713 card, but there was no
discussion about the union card or the
Respondent
argues that based upon this testimony, as well as Arietta’s additional testimony
that in late February, when he heard about Respondent opening from other
drivers, that “we all know who is opening up,” is sufficient to prove
constructive knowledge to Local 1181, which required Local 1181 to exercise
reasonable diligence, and inquire about Respondent’s relationship with Local
713. Once more, I disagree.
First of all,
Arietta’s testimony indicates that it was not until “late February,” that he
heard about Respondent opening up. This
date is not certain, and Respondent has the burden of proving that it was
outside the 10(b) period. Since the
10(b) period starts on February 13, late February could easily have been after
that date. Since Respondent must prove
that Arietta’s or Local 1181’s knowledge of Respondent opening up occurred
prior to February 13, and it has not done so, its reliance on Arietta’s
testimony is misplaced.
More
importantly, even if it were found that Arietta and or his fellow drivers knew
about Respondent opening up prior to February 23, such a finding would not be
sufficient to meet Respondent’s burden of proof on this issue. As related above, notice to employees is not
the same as notice to the
Even if I were
to find, which I do not for the reasons and precedent cited above, that
knowledge of the Access-A-Ride drivers is attributable to Local 1181, vis á vis
Respondent’s opening up, this fact would not provide any evidence or suspicion
that Respondent had recognized Local 713.
Thus, even if I were to find that Local 1181 had constructive knowledge
that Respondent was opening and hiring employees, that does not suggest that
Respondent had recognized Local 713.
Therefore, it is not reasonable to require Local 1181 to make inquiries
to see if Respondent had recognized Local 713.
Finally, I also
note that Respondent recognized Local 713 on February 5, prior to having
trained or even paid any employees, and prior to starting its regular business
operations on February 26, which is within the 10(b) period. Thus, any conceivable argument that Local
1181 should have discovered Respondent’s conduct through reasonable diligence,
can only start with that date. Since
Respondent has failed to introduce a scintilla of evidence, that Local 1181
knew or should have known, that Respondent had recognized Local 713, outside
the 10(b) period, I conclude that it has not come close to meeting its burden
of establishing that Local 1181 had “clear and unequivocal” notice of the
recognition by Respondent of Local 713, on February 5.
Accordingly
based upon the above analysis and authorities, I reject Respondent’s 10(b) defense.
B. The Conduct of Russo
I have found
above that on February 5, Baerga, along with three other applicants for
employment with Respondent, was informed by Russo that a dual-purpose authorization
and checkoff card for Local 713 had to be filled out as part of the application,
adding that this is the
It is clear and
I so find, that Russo’s conduct described above was coercive, and an unlawful
interference with employees right to select their own union representative, and
constitutes unlawful assistance to Local 713, in violation of Section 8(a)(1)
and (2) of the Act. Duane Reade, Inc., 338 NLRB 943, 944 (2003); Meyers Transport of New York, 338 NLRB 958, 970 (2003); Baby Watson Cheesecake, Inc.,, 320 NLRB
779, 786 (1996); Fountain View Care
Center, 317 NLRB 1286, 1290 (1995); Shenandoah
Coal, 305 NLRB 1071, 1072 (1992); and Davis
Supermarkets, 306 NLRB 426, 453 (1992); enfd. 2 F.3d 1162, 1176 (D.C. Cir.
(1993).
Similarly,
Arietta was informed by Russo in March and again in June that he (Arietta) had
to sign a card for Local 713 in order to work for Respondent. By such conduct, Respondent has further
violated Section 8(a)(1) and (2) of the Act.
Respondent
argues with regard to Arietta’s testimony, that “the statements were made when
Dedicated Services was operating under a lawful conclusion that it was a Union
shop, and as such the Company was operating in accordance with its obligations
with respect to same.” Once again, I
cannot agree.
In March, when
Russo made the unlawful comments to Arietta, Local 713 and Respondent had not entered
into a contract as yet, so Respondent’s implicit argument that all Russo was
doing was enforcing the union-security clause, is without merit. The fact that Respondent had recognized Local
713 on February 5, even if lawful,[22]
does not permit Respondent to instruct applicants to sign Local 713 cards, or
to tell them that they need to sign such cards to work for Respondent. See cases cited above.
While the June
conversation was after the contract with a union-security clause was signed,
Russo’s conduct was still unlawful.
Respondent cannot require an employee to sign a union card, in order to
work for it. An employee has 30 days to
join the
Further, it is
well settled that checkoff authorizations must be voluntary, even with a valid union-security
clause. Thus, where as here, the
employees were told that they had to sign a “dual purpose” card, which
authorizes checkoff, in order to be employed by Respondent, such conduct is
further violative of Section 8(a)(1) and (2) of the Act. Service
Employees Local 74 (Parkside Lodge of
C. The Recognition of and Signing a
Contract with
Local 713
The complaint
alleges and the General Counsel contends that Respondent recognized Local 713
at a time when the
Accordingly, I
conclude that Respondent recognized Local 713, on February 5, at a time that
Local 713 had not obtained any authorization cards, as well as at a time when
Respondent employed no employees. It has
therefore violated Section 8(a)(1) and (2) of the Act by recognizing Local 713
in these circumstances, and Section 8(a)(1), (2), and (3) of the Act by subsequently
signing a contract with Local 713 containing a union-security clause.
The General
Counsel argues alternatively, that all six cards are tainted by Respondent’s
unlawful coercion, and that Section 8(a)(2) is violated when an employer
recognizes a union, if the union’s majority is tainted by unlawful coercion or
assistance. In that regard, the General
Counsel contends that the evidence is sufficient to conclude that “all or most
of the six cards were solicited by Respondent, where it directed applicants and
employees to sign the cards and return them to Respondent.” I cannot agree with the General Counsel’s
assessment of the evidence.
The only
evidence of such coercion by Respondent is the testimony of Baerga and
Arietta. However, Arietta’s testimony
concerned events subsequent to the recognition, and is not related to any of
the six cards. While Baerga did testify
to his own card being solicited unlawfully on February 5 by Russo, as I have
detailed above, he furnished no testimony concerning any of the other five
cards. While Baerga did testify that three
other applicants were with him when Russo solicited his card, and were also
subject to Russo’s unlawful coercion, none of these three applicants were ever
hired by Respondent, and they were not among the six card signers.
While it is not
unlikely that Russo did in fact solicit all the cards in the same manner, as he
did with Baerga’s and, as well as with Arietta’s card after the recognition, I
do not find the evidence sufficient to make such a finding. It is the General Counsel’s burden to prove
that the cards were tainted, and I do not find it appropriate to conclude, that
it has met its burden of proving that all six cards were tainted. I note in this regard, that two of the card
signers, Crockwell and McDale were already Local 713 members, while employed by
Dedicated Transportation, so it is conceivable that Local 713 would have been
able to obtain their signatures, without the assistance of Respondent. However, since I have concluded that Baerga’s
card was tainted and invalid, as a result of Respondent’s conduct, his card cannot
be counted in determining Local 713’s majority status. Thus, that finding reduces Local 713 to five
cards, which is not a majority of Respondent’s employees as of February 5, even
assuming it is concluded that they were hired as of that day. Since Respondent employed 10 employees when
it began its training on February 12, Local 713 did not represent a majority of
employees in the unit, on February 5, 12, or at any other time. Therefore, the General Counsel is ultimately
correct that Respondent recognized Local 713, when the Union did not represent
an uncoerced majority of employees, and that this is further support for
concluding that Respondent violated Section 8(a)(1) and (2) of the Act, by such
conduct.[24]
The General
Counsel makes another alternative argument, as reflected in the complaint, that
even if Local 713 represented a majority of employees in the unit on February
5, the recognition was premature. The
Board has set out the competing principles and the test for deciding this issue:
Where a newly opened business has granted recognition, an issue concerning the timing of recognition can arise. The Board has long balanced competing interests in these cases. On the one hand, the Board seeks to vindicate the right of those employees, already employed, to engage in collective bargaining should they so choose. On the other hand, the Board seeks to have that choice made, not by a small, unrepresentative group of employees, but by a group that adequately represents the interests of the anticipated full complement of the unit employees-all of whom will be bound, at least initially, by the choice of those who were hired before them.
Balancing those two interests, the Board has long held
that an employer’s voluntary recognition of a union is lawful only if, at the
time of recognition, the employer: (1) employed a substantial and
representative complement of its projected work force, and (2) was engaged in
its normal business operations. See,
e.g., Hilton Inn Albany, 270 NLRB
1364, 1365 (1984). The test is in the conjunctive: If either prong is not met, a grant of
recognition is unlawful. See, A.M.A. Leasing, 283 NLRB 1017, 1024
(1987) (a finding that the employer “was not engaged in normal business
operations . . . would alone establish a violation”).
The Board looks
to General Extrusion Co., 121 NLRB
1165, 1167 (1958), a representation case for guidance in unfair labor practice
cases involving premature recognition. Hilton Inn, supra at 1365. General
Extrusion, supra, held that an existing contract will bar an election, if
compared to the hearing date, the employer employed 30 percent of its employees
in 50 percent of the job classifications at the time the contract was signed.
In applying this
standard to the facts at hand, I conclude, in agreement with the General
Counsel, that Respondent had not met either prong of the test utilized to
assess premature recognition.[25]
Taking the second prong